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termination during pregnancy

CJ  
Guest
Mon, 12 Oct 2009 03:52:10 PM  (Last updated: Fri, 16 Oct 2009 06:49:04 PM)

Dear Sir / Madam,

My wife is expected to deliver on 1st week of Dec 2009. Her salary is above RM 1,500. The company serve the notice on early Oct 09 and her last date is 31 Dec 2009 (during her maternity leave). The company policy stated the clause as below, (the company copy it from the employment act without knowing the meaning)

1.1          When a female employee remains absent from her work after the expiration of the eligible period as a result of illness certified by the Company’s panel doctor, government medical practitioner or registered medical practitioner to arise out of her pregnancy and confinement and to render her unfit for work, it shall be an offence for the Company to terminate her services or give her a Notice of Termination, until her absence exceeds a period of ninety (90) days after the expiration of the eligible period.

1.2          Subject to clause 1.2 above, where a female employee is dismissed from her employment with wages in lieu of notice at any time during the period of four (4) months immediately preceding her confinement, she shall in computing the period of her employment for the purposes of this clause, be deemed to have been employed as she had been given due notice instead of wages in lieu thereof.

she has ask for an interpretation from the HR department but their reply is the clauses doesn't apply to her.  my wife and myself don't fully agree.

what does the 2 clauses mena? Does it mean that they can't serve the notice during the 4 months prior to confinement and only can be serve during after her maternity leave.

pls help and thanks.

KL Siew
Administrator
Mon, 12 Oct 2009 04:59:13 PM

Actually, those two clauses are irrelevant to your wife's case. Your wife is entitled to maternity benefit as long as she gives birth within 4 months from the last date of her employment. Since your wife is going to give birth in the first week of Dec, she is well within the 4 months' period.

Maternity benefit is one thing, the other thing is about the termination of her service. If your wife thinks the termination is unfair and without good reasons, she can complain to the Industrial Relations Department for reinstatement.

CJ
Guest
Fri, 16 Oct 2009 05:49:00 PM

Dear KL Siew,

Many thanks for your reply. My wife is very frustrated with the company and don't want to spend more time with them anymore. She just would like to get what she is entitle for and leave the company.

on clause 1.2, the sentense "be deemed to have been employed as she had been given due notice instead of wages in lieu thereof". Isn't that means the pregnant employee must be considered as employeed prior to confinement? In this case, the notice of termination only can be serve on the date when she started her matternity.

Also, as it subject to clause 1.1, does it mean they can't serve the notice of termination within the 90 days after her matternity leave.

many thanks again.

KL Siew
Administrator
Fri, 16 Oct 2009 06:49:04 PM

Clause 1.1 is correct in the way you interpreted it. 

Meanwhile, you can always drop in the Labour Department and get more info about your wife's case.

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