Case by Case
For example, in Subramaniam Mookayah v Nestle Products Sdn Bhd [2008] 2 ILR 223 (cited by Donovan & Ho Advocates & Solicitors), the case of a dispute arising from a 17-years-long employee’s request for more time to deliberate on the employer’s request for overtime was taken as a refusal and consequently dismissed from the company. The Industrial Court found the claimant unfairly dismissed because the extra time requested for deliberation was to consult the employee’s ailing wife who was at that time admitted to the hospital, not an outright decline to overtime duties.
The Ipoh High Court presiding over another case involving seven lorry drivers against their employer also found the initial Lower Court’s order to be a fair judgment as reported by Free Malaysia Today. The lower court had in 2020 “ordered the company to pay a total of RM115,786.86 in outstanding overtime, rest day and public holiday payments ranging between six months and two years.”
Although the employer disputed by claiming the drivers were independent contractors instead of employees, “Judicial commissioner Su Tiang Joo said the labour tribunal was correct to conclude the complaints came under the purview of the Employment Act 1955.” This afforded the rights to compensation.
Overtime dispute has also shaken the social messenger space in China in 2023 with a Chinese employee demanding compensation for work related dialogues carried out on WeChat outside of standard working hours. The news piece by Straits Times Singapore showed the employee contended that more than 500 hours have been logged to hold conversations over the weekends and on holidays on a regular basis.
The Beijing Court found the extra communication deserving of overtime pay as it was considered a permanent feature instead of only during selected periods. The court then ordered the company to compensate RMB30,000 (RM20,000) to the employee.
Overtime Privilege & Limitations
In the Malaysian context, the privilege to overtime pay is generally not available to employees earning more than RM4,000 per month except for manual employees. If a dispute of such arises, employees can file a case at the Labour Court as provided for by Act 265 under Section 69 of the Employment Act.
In terms of overtime pay calculation, generally “eligible employees shall be paid at a rate not less than 1.5 times his hourly rate of pay irrespective of the basis on which his rate of pay is fixed.” But to drill down into the details, it is important to derive the Hourly Rate of Pay (HRP) and the Ordinary Rate of Pay (ORP). Establishing these variables will facilitate the full compensation value right down to the last sen. A detailed calculation including that of Rest Day Overtime Pay and Holiday Overtime Pay, and how they are provided for by the law can be found here.
But arguments over money aside, in the spirit of a harmonious workplace, it takes professional discernment and humane empathy to make the right call against every overtime application. This will either stem from astute professional judgment where respect for each other is a default priority or it will come down to draconian scrutiny to pierce through the poker face. The determinant falls under the wide ambit of “who and what kind of employee character are we dealing with?”
By and large though, by upholding the right professional principles of fairness, communication, and mutual respect, employers and employees can navigate the issue of overtime in a manner that promotes productivity and satisfaction in the workplace.
“Much was done before legislation maturity and technological innovation, much can again be accomplished from 2024 onwards.”
In conclusion, while the right to refuse overtime in Malaysia is subject to the Employment Act 1955, cultural limitations and empathetic considerations, employees are entitled to reasonable working hours and have avenues to address concerns related to excessive or unreasonable overtime demands.
