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Small Claims ( unpaid salary and sales commission )

Saleh87
Member
Sun, 22 Dec 2019 12:54:14 PM  (Last updated: Mon, 23 Dec 2019 06:31:20 PM)

I need some legal advice.

I was fired from my last job in July. I am currently awaiting my day in Industrial Court in May for unfair dismissal. My ex boss owes me more than RM5k but under RM10k in salary and sales commissions for TWO months. 

I filed for 2 claims under Small Claims ( Order 93 in Rules of Court 2012 ) in Magistrate Court ( one for sales commission in my June payslip amounting to RM4,738 ) in early August and another ( in mid-August ) is for amount which I am not certain because he REFUSED to give me my July payslip ( but under RM5k ). Fyi, I have also filed a complaint with SOCSO and EPF for non-payment of my July contribution and they have already sent a letter to my former company demanding compliance. 

Both cases are currently almost at trial stage on 4th December ( under the SAME judge - she was the one who wanted to hear both cases together. I didn't request for both the cases to be heard together during case management for Case 1 when she found out I had another Case. So she decided to combined both together. ) when the company lawyer filed for Order 18 ( motion to set aside ) as he claims the total I am claiming is more than RM5k and that I filed the claim in the wrong court as the claims originated from the same employment contract and is now asking that I bear the legal costs for both cases. I was also told by the judge to file Order 24 ( order for discovery ) for my July payslip so that I know the exact amount that I will be claiming ( salary and remaining sales commission ). 

Their lawyer cited "Pushpaneela A/P Suppiah v Ong Yen Chong & Anor ( 1999 ) MLJU 369" saying it's not under Small Claims procedure jurisdiction. I HAVE UNTIL 1ST JANUARY 2020 TO REPLY TO THEIR ORDER 18 ( motion to set aside). 

Can I reply that ALTHOUGH the claims originated from the same employment contract, they were from TWO separate payslips from TWO separate months with TWO separate dates. I am not claiming only for ONE item but TWO; salary and sales commissions. Claim 1 is for sales commissions. Claim 2 is for salary and remaining sales commissions. Moreover, I also filed the claims on TWO separate dates in Magistrate Court. 

IT IS NOT AS IF I ABUSED ORDER 93 BY SPLITTING THE TOTAL AMOUNT IN ONE PAYSLIP WITH ONE DATE WHICH IS MORE THAN RM5K INTO TWO CLAIMS TO MAKE IT UNDER RM5K EACH. 

If they win in setting the cases aside, not only won't I get paid for what is owed, I have to bear their legal fees as well. 

PLEASE HELP! I am at my wits end. I don't have money to celebrate Chinese New Year and now there is real possibility that I will have both my claims thrown out and I have to bear their legal fees for both cases as well. If in the WORST case scenario, this happens, how do I plead? 

Can I plead for the court to bear minimal cost and also ask for liberty to refile? If this request is denied, does this mean that I cannot file this in Labour Court? 

Note: I was given the wrong advice by a Labour department staff earlier when I asked them if I can file a complaint for non-payment of salary and sales commission as I had also filed a complaint at Industrial Relations department at the same time for reinstatement. The staff told me I had to wait for my IR case to be settled before I can file this case. Because I needed money urgently and couldn't wait till May2020 for my case to be over, I went to file my claims in Magistrate Court under Small Claims. Now I am in deep trouble. 

mdkamil
Contributor
Mon, 23 Dec 2019 11:46:33 AM

Sorry that I am not able to give any opinion on your claim at the Magistrate Court.

I just need to clarify on your Note: I was given the wrong advice by a Labour department staff earlier when I asked them if I can file a complaint for non-payment of salary and sales commission as I had also filed a complaint at Industrial Relations department at the same time for reinstatement.

The Labour Dept staff was right. You should have file claim for the non-payment at the Labour Dept FIRST before you file claim for reinstatement at Industrial Relations Dept. Since you went to IR Dept first, that is why Labour Dept cannot file you claim until your claim at IR Dept settles.

This is stated in Section 69A of the Employment Act 1955.

KL Siew
Administrator
Mon, 23 Dec 2019 11:47:27 AM

1. Abiout your claim in the court, I think you may have to wait for the outcome. That may take time to be finalised. Let your lawyer deal with the matter for you.

2. About bring the matter to the Labour Department, I think it is not going to work as your case is pending at the Industrial Court as you said.

Emoployment Act 69A. Notwithstanding section 69, the Director General shall not inquire into, hear, decide or make any order in respect of any claim, dispute or purported dispute which, in accordance with the Industrial Relations Act 1967—

(a) is pending in any inquiry or proceedings under that Act;

(b) has been decided upon by the Minister under subsection 20(3) of that Act; or

(c) has been referred to, or is pending in any proceedings before, the Industrial Court.

Saleh87
Member
Mon, 23 Dec 2019 06:18:44 PM
Originally posted by mdkamil on Mon, 23 Dec 2019 11:46:33 AM

Sorry that I am not able to give any opinion on your claim at the Magistrate Court.

I just need to clarify on your Note: I was given the wrong advice by a Labour department staff earlier when I asked them if I can file a complaint for non-payment of salary and sales commission as I had also filed a complaint at Industrial Relations department at the same time for reinstatement.

The Labour Dept staff was right. You should have file claim for the non-payment at the Labour Dept FIRST before you file claim for reinstatement at Industrial Relations Dept. Since you went to IR Dept first, that is why Labour Dept cannot file you claim until your claim at IR Dept settles.

This is stated in Section 69A of the Employment Act 1955.

Thanks for your input.

I was told that I need to file for reinstatement within 60 days from the date of dismissal with IR department but I have 6 years to file for non-payment of salary and sales commission with Labour department.

As I can't file BOTH at the same time, I had to make a difficult choice. Even though claiming my salary and sales commission wass MORE URGENT, I had to file for reinstatement FIRST as I only have a short window of 60 days to do so.

Saleh87
Member
Mon, 23 Dec 2019 06:31:20 PM
Originally posted by KL Siew on Mon, 23 Dec 2019 11:47:27 AM

1. Abiout your claim in the court, I think you may have to wait for the outcome. That may take time to be finalised. Let your lawyer deal with the matter for you.

2. About bring the matter to the Labour Department, I think it is not going to work as your case is pending at the Industrial Court as you said.

Emoployment Act 69A. Notwithstanding section 69, the Director General shall not inquire into, hear, decide or make any order in respect of any claim, dispute or purported dispute which, in accordance with the Industrial Relations Act 1967—

(a) is pending in any inquiry or proceedings under that Act;

(b) has been decided upon by the Minister under subsection 20(3) of that Act; or

(c) has been referred to, or is pending in any proceedings before, the Industrial Court.

Thanks for your input.

I was so unfortunate to meet this bastard ex-boss in my lifetime.

I am unrepresented in Magistrate Court under Small Claims. I can't be represented by a lawyer as i am an individual. But the company MUST be represented by a lawyer. If the lawyer succeeds in asking the Court to order me to pay legal fees, I am f**ked.

I am not sure if this legal fees that their lawyer is asking me to bear is included in Rules of Court 2012 ( Order 93, Rule 15, paragraph 2 ). It says NO parties are allowed to claim costs for legal fees. I am not sure if it applies to one party if that party has to hire a lawyer.

Getting justice is turning out to be a real pain in the a**. Am I supposed to eat grass until my Industrial Court case is over in May 2020 before Labour department can even begin to look into my case? Sigh

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