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LATEST CASES (ILR Issue 12 of 2013) SUBJECT INDEX DISMISSAL Abandonment - Whether the claimant had abandoned her job - Claimant absent from work without leave - Claimant admitting to it - Whether mere absence from work would lead to an automatic termination - What abandonment had entailed - Whether satisfied in this case - Factors to consider - Evidence adduced - Effect of Abandonment - Whether the claimant had abandoned his job - Whether the claimant had been on leave with the company's approval - Factors to consider - Evidence adduced - Effect of Absenteeism - Claimant absent from work without leave - Whether the claimant had proven that his absences had been justified - Factors to consider - Evidence adduced - Effect of - Whether dismissal without just cause and excuse - Employment Act 1955, s. 60F(2) Absenteeism - Claimant absent from work without leave - Whether the company had a reciprocal duty to enquire why he had been absent from work - Whether discharged by the company - Evidence adduced - Effect of - Whether dismissal without just cause and excuse Absenteeism - Whether the claimant had been absent without leave - Evidence adduced - Evaluation of - Whether proven by the company - Whether the company had been justified in dismissing him - Actions of the company - Reasonableness of the company - Factors to consider - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Fraud - Claimant applying for a medical board out - Whether fraud proven by the company - Evidence adduced - What the company should have done Breach of company rules and policies - Negligence - Whether the claimant had abused his position in the company - Whether proven by the company - Evidence adduced - Effect of - Whether it had been a serious misconduct - Whether it had justified his dismissal - Whether dismissal without just cause and excuse Breach of company rules and policies - Negligence - Whether the claimant had been negligent in carrying out his duties - Evaluation of the evidence adduced -Whether the claimant had the authorisation of his employer to act as he had - Effect of - Whether the claimant had been aware of the correct procedure to follow - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Claimant accused of failing to contribute anything to the company and of bringing a host of problems to it - Whether proven by the company - Evidence adduced - Effect of - Claimant not being given warnings - Whether warnings had been required - Effect of - Whether the company had been reasonable in dismissing the claimant - Whether dismissal without just cause and excuse Notice of termination - Forced resignation - Whether the claimant had been forced to resign - Evidence adduced - Evaluation of - Effect of - Whether the claimant had been indirectly dismissed by the company - The company's conduct towards him - Whether in compliance with the rules of natural justice - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Performance - Unsatisfactory performance - Claimant under-performing - Whether proven by the company - Evidence adduced - Whether the claimant had come to court with clean hands - Factors to consider - Whether the company had been justified in dismissing her - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Performance - Unsatisfactory performance - Whether proven by the company - Whether the claimant had been warned - Evidence adduced - Effect of - Position held by the claimant - Whether written warnings had been necessary - Whether dismissal without just cause and excuse Performance - Unsatisfactory performance - Whether the claimant had under-performed - Who had been in the best position to decide - Whether this ground had been proven by the company - Evidence adduced - Whether the company had been justified in dismissing her Probationer - Claimant put on probation - No confirmation of appointment given by the company - Effect of - Whether the claimant had been a probationer at the time of dismissal - Factors to consider - Conduct of the company towards her - Actions taken by the company during her probationary period - Effect of Probationer - Claimant working with the company beyond her probation period without being confirmed or terminated - Effect of - Whether the claimant had been a probationer when she had been dismissed - Factors to consider - Whether she had been a confirmed employee by the company's conduct - Evidence adduced - Effect of Retrenchment - Redundancy - Claimant retrenched - Claimant refusing an assignment in China - Whether her refusal had been acceptable - Factors to consider - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Retrenchment - Redundancy - Claimant retrenched -Whether the retrenchment had been carried out bona fide - Factors to consider - Evidence adduced by the company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Retrenchment - Redundancy - Claimant retrenched - Whether her job had become redundant - Evidence adduced - Evaluation of - Claimant not having a job description in the new department set up by the company - Reasons for the same - Whether the company had been aware of this fact - Evidence adduced - Whether it had been the company's duty to provide her with one - What the company should have done - Company not raising any objection to the claimant's job functions or lack of it until many years later - What it had shown - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Victimisation - Claimant pregnant - Whether the claimant had been dismissed due to her pregnancy - Evidence adduced - Evaluation of - Effect of - Conduct of the company - Whether the company's actions had been reasonable under the circumstances - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) DOMESTIC INQUIRY Procedural impropriety - Whether the DI had been conducted fairly and in conformance with the rules of natural justice - Factors to consider EVIDENCE Burden of proof - No express approval given by employer for leave application - Whose burden to prove leave application approved - Whether satisfied by the claimant - Evidence adduced - Quality of - Effect of Burden of proof - Whether dismissal established by the claimant - Evidence adduced - Effect of - Whether the burden had shifted to the bank to prove just dismissal Burden of proof - Whether the bank had discharged its burden of proving dismissal with just cause and excuse - Evidence adduced - Whether the claimant's dismissal had been done in haste - Whether this had been the claimant's first incident of absence without leave - How that should have weighed in - Effect of Burden of proof - Whether the company had discharged its burden of proving dismissal with just cause and excuse - Company failing to appear in Court despite being served with the notice of hearing - Claimant's testimony unrebutted - Effect of - Whether dismissal without just cause and excuse Documentary evidence - Company seeking to tender new evidence after the close of the case - Whether should be allowed - Factors to consider - Effect of - Evidence Act 1950, s. 138(4) Documentary evidence - Findings of the Domestic Inquiry - Whether accurate - Factors to consider Witness - Whether COW1 had been a suitable witness for the company - Whether there had been gaps in the company's evidence that had required filing in - Company failing to call two witnesses - Whether they had been material witnesses - Whether the company had been withholding evidence - Whether an adverse inference ought to drawn against them - Factors to consider - Evidence Act 1950, s. 114(g) Witness - Witness statements - Whether the court had to take judicial notice of all witness statements filed - Factors to consider - Purpose of witness statements - Effect of - The Industrial Court's Practice Note No. 1 of 2003 para. 4 INDUSTRIAL COURT Remedies - Backwages - Probationer client - How much backwages to award - Factors to consider - Provisions of legislation - Industrial Relations (Amendment) Act 2007, s. 2 of Second Schedule Remedies - Compensation - What had been a suitable remedy to award the claimant - Claimant failing to produce documentary evidence of his last drawn salary - Whether it had been according to equity and good conscience to just accept his word on what his last drawn salary had been - Claimant's conduct - Effect of - Whether the figure had been plucked by the claimant from the air - Industrial Relations Act 1967, ss. 30(5) & 30(6A) LABOUR LAW Dismissal - Unfair dismissal - Allegation of - Misconduct - Appellant served on board of directors in another company while in respondent's employment - Whether a breach of respondent company's code of conduct - Whether punishment of dismissal unduly harsh - Whether appellant's dismissal reasonable and fair Industrial Court - Jurisdiction - Whether Industrial Court could substitute own view, in place of employer's view, as to appropriate penalty for employee's misconduct - Whether Industrial Court duty-bound to use doctrine of proportionality of punishment to decide whether misconduct justified dismissal - Whether Industrial Court should take all relevant factors into account before ruling unfair dismissal TRADE DISPUTE Collective agreement - Terms and conditions of service - Article on annual leave - Whether cash should be given in lieu of unconsumed leave - In what circumstances should that apply - Effect of Collective agreement - Terms and conditions of service - Article on bonus - Whether there should be an increase - Factors to consider - Effect of Collective agreement - Terms and conditions of service - Article on commencement and duration - Whether the date of commencement could be different from the date of implementation - Factors to consider - Effect of - Industrial Relations Act 1967, s. 30(7) Collective agreement - Terms and conditions of service - Article on medical attention - Whether it should be increased - Factors to consider - Effect of Collective agreement - Terms and conditions of service - Article on overtime - Whether it should be in accordance with the Employment Act 1955 - Factors to consider - Effect of - Employment Act 1955, ss. 2 and 7 & Industrial Relations Act 1967, s. 14(3) Collective agreement - Terms and conditions of service - Article on rest day and rest day rate - Whether the article in the sixth collective agreement should be maintained - Factors to consider Collective agreement - Terms and conditions of service - Article on retirement and retirement benefits - Whether the retirement age ought to be increased to sixty - Whether retirement benefits ought to be paid out - Factors to consider - Effect of Collective agreement - Terms and conditions of service - Article on retrenchment and retrenchment benefits - Whether it should be increased - Factors to consider Collective agreement - Terms and conditions of service - Article on safety boots and uniforms - Whether a laundry allowance ought to be given to the employees - Factors to consider - Effect of - Practices of other companies in similar industries Collective agreement - Terms and conditions of service - Article on salary adjustment and job classification - Perusal thereof - Whether employees who had reached their maximum salaries would be allowed to receive a salary on a personal-to-holder basis if the salary adjustment exceeded the maximum salary - Submissions from parties - Effect of Collective agreement - Terms and conditions of service - Article on salary range and annual increment - Whether it should be increased - Factors to consider - Effect of Collective agreement - Terms and conditions of service - Article on shift allowance - Whether it should be increased - Factors to consider - Effect of INDEKS PERKARA KETERANGAN Keterangan dokumentari - Sama ada YM merupakan pekerja kepada syarikat atau syarikat yang digabungkan - Faktor-faktor yang harus diambil kira - Keterangan yang dikemukakan – Kesannya MAHKAMAH PERUSAHAAN Prosidur - Tindakan - YM menerima bayaran penyelesaian daripada syarikat - Sama ada beliau diestop dari membawa tindakan ini di Mahkamah Perusahaan - Faktor-faktor yang harus diambil kira – Kesannya PEMBUANGAN KERJA Pembuangan kerja secara konstruktif - YM dituduh cuai dalam menjalankan tugasnya dan diberhentikan kerja - Sama ada berjaya dibuktikan oleh syarikat - Keterangan yang dikemukakan - Kesannya - YM menafikan pertuduhan yang dikenakan keatasnya - Tindakbalas syarikat - Apa yang syarikat seharusnya lakukan - Sama ada tindakan syarikat merupakan suatu perlanggaran fundamental terma dan syarat kontrak perkhidmatan YM - Sama ada YM telah dibuang kerja secara konstruktif - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) SIASATAN DALAMAN Kesilapan prosedur - Sama ada syarikat telah mengikuti prosedur yang betul dalam menjalankan Siasatan Dalaman - Keterangan yang dikemukakan – Kesannya |
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