Retrenched, but the company is hiring?
Your role was made redundant, then a similar job was advertised.
You were told your position no longer existed because of restructuring. Weeks later, a job advertisement appeared for a role that sounds a lot like yours.
Genuine redundancy means the position itself disappears, not that a worker is swapped out. New hiring for similar work soon after raises a fair question under unfair dismissal law.
Does hiring afterward mean my retrenchment was not genuine?
It can be strong evidence against genuineness, especially if the new role has similar duties, reports to the same manager, or was advertised soon after you left.
A completely different role, or hiring for a separate department, tells you less. Compare the new job description with your own.
Was I selected fairly compared with others in my position?
Malaysian practice favours Last In First Out, where the most recently hired go first. An employer who departs from it needs sound reasons.1
If colleagues doing the same work with less seniority than you kept their jobs, ask why. A departure from that principle without explanation is worth raising with a lawyer.
Who has to justify the retrenchment?
Your employer must show the retrenchment was for a genuine reason and handled fairly. A letter saying so is not enough.2
Save the retrenchment letter, the stated reason, and any internal announcement about restructuring or cost cutting given to staff.
How long do you have to challenge this?
You have 60 days from the date of retrenchment to file a Section 20 representation.3 This is the written claim you lodge to say your dismissal was unfair, and it goes to the Director General of Industrial Relations.
Retrenched workers may also be able to apply to the Social Security Organisation (PERKESO) for Employment Insurance System support. It is separate from any unfair dismissal claim and does not affect it.
What should you do this week?
Screenshot the job advertisement and note the date it appeared relative to your last day of work. Compare your severance with what your contract and length of service suggest.
For a related pattern, read about a sudden role made redundant. Then use the deadline calculator to track your 60 days.
If you want a lawyer to challenge the redundancy, request lawyer contact first; only after an identified independent lawyer has contacted you and specifically requested the material, send the retrenchment letter and the job advertisement directly to that lawyer. They can review whether it is a case they can act on.
You were retrenched while the company was hiring. An independent employment lawyer can compare the job advertisement with your retrenchment letter and handle the claim if the redundancy looks doubtful.
For people seeking legal representation. For general information, please use our guides and tools.
First contact: general facts only, such as date, location, employment status and a short summary. Keep documents private until an identified independent lawyer contacts you and specifically requests them.
Common questions
Is it illegal for a company to hire again after retrenching me?
Not automatically illegal, but hiring for a similar role soon afterward can undermine the claim that your position was redundant. The closer the new role is to yours, the more it matters.
What if the new job posting uses a slightly different title?
Titles alone do not decide this. Compare the duties, reporting line and required skills in the posting with your old role. A different label over the same work still raises questions.
Does Last In First Out always have to be followed exactly?
No. An employer can depart from it, but needs sound reasons, such as specific skills the business still requires. A departure with no clear reason is easier to challenge.
Can I claim both a retrenchment claim and Employment Insurance System support?
Yes. The Employment Insurance System is a government support scheme separate from an unfair dismissal claim, and pursuing one does not block the other. Each has its own deadline.
Sources
- Last In First Out is the conventional, objective retrenchment selection principle, and an employer who departs from it must justify the departure with sound reasons. Richard Wee Chambers
- In an unfair dismissal case the burden of proof rests on the employer to show just cause or excuse for what happened. Mah Weng Kwai & Associates
- An employee who believes they were dismissed without just cause may file a Section 20 representation within 60 days of the dismissal. Mah Weng Kwai & Associates
Keep reading
You were retrenched while the company was hiring. An independent employment lawyer can compare the job advertisement with your retrenchment letter and handle the claim if the redundancy looks doubtful.
For people seeking legal representation. For general information, please use our guides and tools.
First contact: general facts only, such as date, location, employment status and a short summary. Keep documents private until an identified independent lawyer contacts you and specifically requests them.