Why Your Claim Asks For Your Job Back
Why reinstatement is the remedy the law frames first in an unfair dismissal claim.
What The Case Decided
Holiday Inn Kuching v Elizabeth Lee Chai Siok addressed a worker who sought reinstatement under Section 20.
The High Court decided it in 1992, reported at [1992] 2 CLJ (Rep) 521.
She later asked for compensation instead.
The case is also useful for how it describes misconduct.
It set out misconduct as improper behaviour, intentional wrongdoing or a deliberate breach of a standard of conduct 1.
What The Principle Means Plainly
Two separate points come out of this case.
First, the Section 20 process is structured around reinstatement as the primary remedy.
The final outcome can still become compensation instead.
Second, not every error at work meets the bar for misconduct.
The conduct needs to be improper, intentional or a clear breach of a known standard.
What It Means For A Worker
When you lodge your representation, you are technically asking for your job back.
That holds even if that is not your real preference.
Some workers prefer compensation in lieu of reinstatement instead, and that choice usually comes later in the process.
If your dismissal was framed as misconduct, check whether what actually happened fits this description.
An honest mistake is not automatically misconduct.
Where This Fits In A Claim
This case sits at the reinstatement stage of a Section 20 claim.
It sits alongside how back wages get calculated in cases like Dr James Alfred v Koperasi.
Whether you end up with your job back or compensation depends on the facts of your case, and no particular result is promised.
Since the claim itself has to be lodged on time, check the deadline calculator before deciding on a remedy.
Deciding whether you actually want your job back or compensation instead is a personal choice an employment lawyer can help you think through.
Common questions
Why does my Section 20 form ask for reinstatement?
The remedy the law frames first under Section 20 is reinstatement to your old job. Some workers later choose compensation instead, but the claim is structured to seek your job back as the starting point.
What counts as misconduct according to this case?
The case described misconduct as improper behaviour, intentional wrongdoing or a deliberate breach of a standard of conduct. A genuine mistake, without intent or a clear breach of a known standard, may not meet that bar.
Can I still ask for money instead of my job back?
Yes, some workers who succeed choose compensation in lieu of reinstatement instead of returning to the same workplace. That choice becomes available once the Industrial Court makes its finding.
Sources
- Misconduct was described as improper behaviour, intentional wrongdoing or a deliberate breach of a standard of conduct. Donovan & Ho
Keep reading
Deciding whether you actually want your job back or compensation instead is a personal choice an employment lawyer can help you think through.