BUSINESS LAW

EMPLOYMENT LAW
EMPLOYMENT LAW
Area of law that governs the employer-employee relationship

Examples are:-
Employment contracts, equal pay, holiday entitlement and pay, working
hours, disciplinary procedures, maternity and paternity leave, different
types of discrimination, redundancy process and much more
EMPLOYMENT LAW IN BRUNEI
EMPLOYMENT LAW IN BRUNEI

www.labour.gov.bn
GUIDE TO BRUNEI EMPLOYMENT LAWS
CONTRACT OF EMPLOYMENT
Written agreement between an employer and an employee, stating
the terms and conditions for that individual’s job role

The contract will outline the employee’s basic responsibilities and

duties, their working hours, their working environment, and their
rights as an employee
TERMS OF CONTRACT OF EMPLOYMENT

Names of employer and employee

Job title of the employee

Date employment began

Scale or rate of pay and method of calculation

Manner of pay i.e., hourly or monthly

TERMS OF CONTRACT OF EMPLOYMENT
Hours of work

Holiday and leave entitlement

Social benefits such as sick leave or pension

Length of notice for termination

Location of employment

Requirement to work outside the country to be specified

HOW ?
TERMINATION OF CONTRACT OF
EMPLOYMENT

By dismissal
 WHAT IS A
DISMISSAL?
WHAT IS A DISMISSAL?
Employment Rights Act 1996

An employee is deemed to be dismissed when:-

1) The employer terminates the contract, with or without notice

EMPLOYMENT RIGHTS ACT 1996
2) Employee’s fixed term contract expired and is not extended
or renewed

3) The employer breached the contract resulting the employee

to terminate the contract (constructive dismissal)
TYPES OF DISMISSAL

1. Constructive dismissal
2. Summary dismissal
3. Wrongful dismissal
4. Unfair dismissal
CONSTRUCTIVE DISMISSAL
The employer, by his act or omission, breached the essential
term of the contract compelling the employee to leave the
employment

When employee is forced to leave the job against his/her will

because of employer’s conduct
CONSTRUCTIVE DISMISSAL

Think of a scenario where constructive dismissal happens at

workplace
CONSTRUCTIVE DISMISSAL
Do not pay employee’s salary
Demote employee for no reason
Forces employee to accept unreasonable changes to how you
work - for example, work night shifts when contract is only for
day work
Let other employees harass or bully the said employee
CONSTRUCTIVE DISMISSAL
Employee able to sue employer and claim for damages if
his/her dismissal is of constructive in nature
CONSTRUCTIVE DISMISSAL

To sue successfully, employee MUST show:-

i) The breach is committed by the employer
ii) The breach committed is serious
iii) He/she has not affirmed the contract
iv) He/she left employment because of the breach
SUMMARY
DISMISSAL
SUMMARY DISMISSAL

When employee is found to be guilty of GROSS

MISCONDUCT and AFTER a PROPER DISCIPLINARY
PROCDURES had been conducted, employer has the legal
right to dismiss the employee without any notice or payment
in lieu of notice
 GROSS
MISCONDUCT
GROSS MISCONDUCT
Theft at office
Fighting/assaulting another person
Serious incapability through alcohol or illegal drugs
Endangering the safety of others by breaching Health and
Safety Laws
GROSS MISCONDUCT
Fraud
Gross negligence
Serious insubordination
 A formal way for employer to deal with an
employee’s:
DISCIPLINARY 1) unacceptable or improper behaviour
PROCEDURES ('misconduct’)
2) performance ('capability')
 1. Get an initial understanding
2. Investigate thoroughly

STEPS IN 3. Invite the employee to a disciplinary meeting

DISCIPLINARY 4. Conduct the disciplinary meeting
PROCEDURES 5. Decide on action to take
6. Confirm the outcome in writing
7. Right to appeal
WRONGFUL DISMISSAL

When employee's contract of employment has been

terminated by the employer, where the termination
breaches one or more terms of the contract of employment
or the employment law
WRONGFUL DISMISSAL
When employee takes legal action against his employer for
wrongful dismissal, he/she is suing for breach of contract
WRONGFUL DISMISSAL
Can Ali claimed wrongful dismissal when his contract is
terminated by the company because he refused to go work
in Miri, Malaysia?
WRONGFUL DISMISSAL
Nothing Ali can do if it is agreed in the contract of
employment between Ali and his company that Ali has to
work anywhere as instructed by his company
WRONGFUL DISMISSAL
If the contract of employment stipulated Ali’s place of
employment is in Brunei Darussalam, the company breached
the term of the contract by directing Ali to work outside Brunei
Darussalam and Ali can thus, sue and claims damages for
wrongful dismissal
 UNFAIR
DISMISSAL
 UNFAIR Unfairly dismissed or terminate from
DISMISSAL service of employment
UNFAIR DISMISSAL
Employment Rights Act 1996

Employee can only claim he is unfairly dismissed if he:-

i) is an employee, not an independent contractor

ii) Has at least one year’s continuous employment

iii) Is below the normal retirement age of 65

 Once an employee claims unfair dismissal, the
UNFAIR
onus is on the employer to prove the dismissal
DISMISSAL
is fair
UNFAIR DISMISSAL
In showing the dismissal is fair, employer need to prove that
the employee:-

1) Lack of capacity and qualification

 1) LACK OF WHEN EMPLOYEE'S PERFORMANCE
CAPACITY AND FALLS BELOW THE REQUIRED
QUALIFICATION STANDARD
1) LACK OF CAPACITY AND QUALIFICATION

Alidiar v Taylor (1977)

The pilot was dismissed after he landed and damaged an
airplane and he was dismissed. He sued the airline for unfair
dismissal
ALIDIAR V TAYLOR (1977)
ALIDIAR V TAYLOR (1977)
The court held that the pilot was not unfairly dismissed. He
was rightly dismissed for his lack of skill which could have
serious consequences in getting the passengers on board the
plane killed
 Misconduct such as dishonesty would justify
2) CONDUCT dismissal to be fair
NEEFJES V CRYSTAL PRODUCTS CO LTD (1972)

An employee had been warned on few occasions by the company that

he would be dismissed if the management continued to receive
complaint about his conduct. The employee, however, continued to
assault fellow colleagues and he was subsequently dismissed. He sued
the company for unfair dismissal
NEEFJES V
CRYSTAL
PRODUCTS
CO LTD
(1972)
 NEEFJES V
CRYSTAL The court held that his dismissal was fair
PRODUCTS CO
LTD (1972)
 What if the misconduct is carried out outside
2) CONDUCT of the office?
 An employee who was involved in football
POST OFFICE
related violence overseas was dismissed. He
V LIDDIARD
claimed unfair dismissal
(2001)
POST OFFICE V
LIDDIARD (2001)
POST OFFICE V LIDDIARD (2001)
The court found that his dismissal was unfair on the basis
that there was no damage caused by his misbehaviour to
the company
SINGH V LONDON COUNTY BUS SERVICES
LIMITED (1976)

The employee, who was a bus driver, was convicted of offence of

dishonesty committed outside his employment. He was dismissed and
he filed for unfair dismissal
SINGH V LONDON COUNTY BUS
SERVICES LIMITED (1976)
SINGH V LONDON COUNTY BUS SERVICES
LIMITED (1976)

The court held the dismissal was considered fair. Misconduct does not
have to occur during the employee’s course of employment or at the
place of work. As long as the misconduct adversely or bring about
negative impact on the company, dismissal is justified
 PROVING
MISCONDUCT
How employer can show
employee’s misconduct?
BRITISH HOME STORES LTD V BURCHELL
[1980]
THREE (3) criteria to be satisfied:-
1) The employer should believe that the employer is
guilty or had committed misconduct based on the facts
known to him at that time, rather than facts discovered
later
BRITISH HOME STORES LTD V BURCHELL
[1980]

2) The employer should have reasonable ground to believe that

employer is guilty or had committed misconduct

3) The employer should carry out as detailed investigation as was

reasonable in all the circumstances
3) EMPLOYEE WAS MADE REDUNDANT

Redundant
Not or no longer needed or useful
EMPLOYEE WHO IS MAKE REDUNDANT BY THE COMPANY
COULD NOT CLAIMED UNFAIR DISMISSAL SO LONG AS HE WAS:-

a) not discriminated and

b) the procedures for redundancy is properly conducted

HEATHCOTE V NORTH WESTERN
ELECTRICITY BOARD (1974)
The plaintiff, who was employed as a driver’s mate, was made redundant
because the company felt that the position of driver’s mate was no longer
required. Employees selected to be made redundant was confined to those
working at transport section and the process of redundancy was based on
those who were employed last would be the first to go
HEATHCOTE V NORTH WESTERN
ELECTRICITY BOARD (1974)

It was held the procedure for redundancy was not properly carried out
as the selection of employees to be make redundant should be made
from the whole business rather than from the transport section within
the company only
4) STATUTORY RESTRICTION

On the employer

When the business was ordered to be closed down under the law.
In such circumstance, the employee’s dismissal by the employer
would not be deemed to be unfair
4) STATUTORY RESTRICTION
On the employee

Fearn v Tayfield Motor Co Ltd

An employee was employed as a vehicle supervisor and part of his

duties included driving vehicles. His driving licence was suspended
for 12 months because of his conviction in careless driving. The
company terminated his contract and he sued for unfair dismissal
FEARN V TAYFIELD MOTOR CO LTD

It was held the dismissal was not unfair since the employee
could no longer perform the duty as a driver which he was
engaged to do
5) SOME OTHER SUBSTANTIAL REASONS

 When an employee is a danger to his/her colleagues

5) SOME OTHER SUBSTANTIAL REASONS

As long as the employer can show that he acted “reasonably”

in dismissing the employee, the claim by employee for unfair
dismissal will fail
REMEDIES FOR UNFAIR DISMISSAL
a) Compromise agreements
 Employer and employee to negotiate privately and to settle the matter
amicably between the parties

 Usually, one or both parties will engage lawyer to provide legal

advice and to draft and formalize an agreement in relation to what
has been agreed and compromised during the negotiation
REMEDIES FOR UNFAIR DISMISSAL
b) Reinstatement
 Unfairly dismissed employee has the right to decide if he wish
to be re-employ by his employer

 When reinstate, the unfairly dismissed employee returns to his

previous job as if he has never been dismissed
REMEDIES FOR UNFAIR DISMISSAL
c) Re-engagement
Employee is reemployed but he might be allocated to a
different job if suitable and necessary. When this is so, a new
contract of employment will be entered into in which the terms
and condition might be different to the previous one
REMEDIES FOR UNFAIR DISMISSAL
Damages may be awarded for the time between the employee’s
dismissal and his reemployment i.e. during dismissal until
reinstatement or reengagement
REMEDIES FOR UNFAIR DISMISSAL
d) Compensation
Awarded based on loss of wages for immediate and future lose
of wages