LATEST CASES (ILR Issue 12 of 2016)

SUBJECT INDEX

ADMINISTRATIVE LAW

Remedies - Certiorari - Judicial review - Application for - Termination of employee's services - Retrenchment exercise - Whether bona fide - Factors considered - Whether there was redundancy due to surplus of labour - Whether employee's job functions still in existence in company - Employee a long serving employee - Last In First Out ('LIFO') principle - Whether followed - Whether termination tainted with mala fide - Whether termination of employee according to fair labour practice - Whether findings of fact immune from judicial review
Saw Kong Beng v. Mahkamah Perusahaan Malaysia & Anor
(Collin Lawrence Sequerah JC) [2016] 4 ILR 433

CONTRACT OF EMPLOYMENT

Type of - Fixed-term contract - Whether the claimant had been a permanent employee - Evidence adduced - Factors to consider - Effect of
Mohd Norhelmi Mohd Salleh v. Malindo Airways Sdn Bhd
(Anna Ng Fui Choo) [2016] 4 ILR 538

Type of - Fixed-term contract - Whether the claimant had been employed under a genuine fixed-term contract - Perusal of the claimant's contract of employment - Evidence adduced - Effect of - Claimant promoted several times during his employment with the company - Whether the company's actions had changed his fixed-term contract to one of permanent employment - Factors to consider - Effect of - Whether the company's actions of terminating him based on the fact that his contract had expired had constituted a dismissal - Whether dismissal without just cause and excuse
Mohd Norhelmi Mohd Salleh v. Malindo Airways Sdn Bhd
(Anna Ng Fui Choo) [2016] 4 ILR 538

DISMISSAL

Breach of company rules and policies - Dishonesty - Claimant adjusting the accounting reports of the company - Company suffering substantial loss - What the claimant should have done instead - Whether his actions had been so serious as to justify his dismissal - Factors to consider - Effect of
John Stephen Dionysius v. Novotel Kota Kinabalu 1 Borneo / 1 Borneo Hotel Sdn Bhd
(Duncan Sikodol) [2016] 4 ILR 452

Breach of company rules and policies - Dishonesty - Claimant adjusting the accounting reports of the company - Whether proven by the company - Evidence adduced - Effect of - Claimant admitting to knowing that what he had been doing had been wrong - Effect of - His defence - Whether could be accepted - Factors to consider - Whether his misconduct had been grave - Whether it had justified his dismissal - Position held by the claimant in the company - What had been expected of him in that position - Whether dismissal without just cause and excuse
John Stephen Dionysius v. Novotel Kota Kinabalu 1 Borneo / 1 Borneo Hotel Sdn Bhd
(Duncan Sikodol) [2016] 4 ILR 452

Breach of company rules and policies - Lateness - Whether the claimant had frequently come to work late - Evidence adduced - Effect of - Claimant issued reminders but failing to improve - What that had shown
Thirumaran Govindasamy v. Goodyear Malaysia Berhad
(Rosenani Abd Rahman) [2016] 4 ILR 581

Breach of company rules and policies - Medical leave - Claimant submitting medical leave from non-panel clinics and hospitals despite knowing it was against the company's policy - Whether he had abused the medical leave benefit that had been provided by the company - Evidence adduced - Whether it had shown him to have behaviour and attitude problems - Whether he had been irresponsible and not committed in the performance of his duties - Factors to consider - Whether it had justified his dismissal - Whether his dismissal had been with just cause and excuse
Thirumaran Govindasamy v. Goodyear Malaysia Berhad
(Rosenani Abd Rahman) [2016] 4 ILR 581

Breach of company rules and policies - Medical leave - Whether the claimant had taken excessive medical leave - Whether he had been subject to art. 22 cl. 2(e) of the CA on Long Term Illness - Perusal of the article in question - Effect of
Thirumaran Govindasamy v. Goodyear Malaysia Berhad
(Rosenani Abd Rahman) [2016] 4 ILR 581

Breach of company rules and policies - Medical leave - Whether the claimant had taken persistent and excessive medical leave - Whether he had suffered from a chronic illness - Evidence adduced - Effect of - Claimant undergoing a medical examination which had certified him to be normal and healthy - What that had shown - His explanations - Whether could be accepted - Factors to consider - Effect of - Company's conduct towards him - Whether reasonable - Whether dismissal with just cause and excuse
Thirumaran Govindasamy v. Goodyear Malaysia Berhad
(Rosenani Abd Rahman) [2016] 4 ILR 581

Constructive dismissal - Whether the claimant had been constructively dismissed - Factors to consider - Effect of
Nina Chua Siok Pin v. Musim Indah Sdn Bhd
(Duncan Sikodol) [2016] 4 ILR 629

Misconduct - Claimant allegedly causing staff problems and having personality issues with the major shareholder of the company - Whether proven by the company - Evidence adduced - Effect of - Whether the company had acted reasonably in dismissing him - Whether the company's actions had been arbitrary and/or capricious and/or actuated by bad labour practice - Factors to consider - Effect of - Whether dismissal with just cause and excuse
Bennett Subash Peter v. Bon Ton Sdn Bhd (Bon Ton Resort Langkawi)
(Fredrick Indran XA Nicholas) [2016] 4 ILR 468

Performance - Unsatisfactory performance - Claimant allegedly failing to meet her sales targets - Whether proven by the company - Evidence adduced - Effect of - Claimant not given warning letters or having appraisals conducted on her - Effect of - What the company should have done - Whether the company had succeeded in proving poor performance against her - Whether it had acted reasonably in dismissing her - Whether dismissal without just cause and excuse
Nina Chua Siok Pin v. Musim Indah Sdn Bhd
(Duncan Sikodol) [2016] 4 ILR 629

Performance - Unsatisfactory performance - Claimant allegedly failing to perform - Whether proven by the company - Evidence adduced - Evaluation of - Effect of - Whether the company's actions towards her had been bona fide - Whether the claimant had been victimised - Whether the company had behaved reasonably towards her - Factors to consider - Whether her non-performance had justified her dismissal - Claimant's conduct - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Chong Peh Yung v. Platinum Green Chemicals Sdn Bhd
(Anna Ng Fui Choo) [2016] 4 ILR 568

Probationer - Claimant a probationer when dismissed from service - Whether he had held a lien over his post - Evaluation of the authorities - Effect of - Whether he ought to be reinstated to his former position - Factors to consider
Bennett Subash Peter v. Bon Ton Sdn Bhd (Bon Ton Resort Langkawi)
(Fredrick Indran XA Nicholas) [2016] 4 ILR 468

Probationer - Whether the claimant had been a probationer at the time of her dismissal - Factors to consider - Effect of - Two evaluations conducted on her with differing recommendations - Only second evaluation taken into account - Reasons for the same - Effect of - Whether she had been confirmed vide the evaluations - Evidence adduced - Effect of
Chong Peh Yung v. Platinum Green Chemicals Sdn Bhd
(Anna Ng Fui Choo) [2016] 4 ILR 568

Retrenchment - Redundancy - Claimant's positon becoming redundant - Whether the company had been under any obligation to source for an alternative position for him - Factors to consider - Company's conduct towards him - Perusal of the authorities - Effect of
Farid @ Hashim Haji Abdullah v. Sime Darby Foods & Beverages Marketing Sdn Bhd
(Jamhirah Ali) [2016] 4 ILR 485

Retrenchment - Redundancy - Whether the claimant's position had been redundant - Position held by the claimant in the company - Effect of the reorganisation on his position - Whether LIFO had been applicable to him - Factors to consider - Effect of - Whether the claimant had been aware of the company's need to reorganise and the fact that some of its employees would be retrenched - Effect of
Farid @ Hashim Haji Abdullah v. Sime Darby Foods & Beverages Marketing Sdn Bhd
(Jamhirah Ali) [2016] 4 ILR 485

Retrenchment - Redundancy - Whether the company had been in breach of the Code of Conduct for Industrial Harmony - Whether the Code had any legal force - Effect of - Whether the claimant had had notice of his impending retrenchment - Actions taken by the company towards its employees - Effect of
Farid @ Hashim Haji Abdullah v. Sime Darby Foods & Beverages Marketing Sdn Bhd
(Jamhirah Ali) [2016] 4 ILR 485

Retrenchment - Reorganisation - Whether the company had exercised its management prerogative in a bona fide manner - Factors to consider - Evidence adduced - Effect of - Whether the company had victimised or discriminated against him - Whether the claimant's retrenchment had been carried out bona fide - Whether his dismissal had been without just cause and excuse
Farid @ Hashim Haji Abdullah v. Sime Darby Foods & Beverages Marketing Sdn Bhd
(Jamhirah Ali) [2016] 4 ILR 485

Retrenchment - Reorganisation - Whether there had been a genuine need for the company to reorganise its business - Factors to consider - Evidence adduced - Effect of
Farid @ Hashim Haji Abdullah v. Sime Darby Foods & Beverages Marketing Sdn Bhd
(Jamhirah Ali) [2016] 4 ILR 485

DOMESTIC INQUIRY

Charges - Whether the charges framed against the claimant had been defective - Factors to consider - Effect of - Perusal of the contents of the charges - How it should have been framed - What the company should have done - Whether the charges against the claimant had been void ab initio
Vivekananda Narayanasamy v. MAA-Medicare Kidney Charity Fund
(Sarojini Kandasamy) [2016] 4 ILR 600

Procedural impropriety - Whether the claimant had been given ample opportunity to prepare his defence - Whether the rules of natural justice had been complied with - Factors to consider - Effect of - Whether the DI had been defective and improper
Vivekananda Narayanasamy v. MAA-Medicare Kidney Charity Fund
(Sarojini Kandasamy) [2016] 4 ILR 600

EVIDENCE

Adverse inference - Company failing to call Dr. Jeyabalan who had lodged the complaint against the claimant - Whether he had been an important and material witness - Factors to consider - Reasons for his non-production as a witness - Whether could be accepted - Whether an adverse inference ought to be drawn against the company - Evidence Act 1950, s. 114(g)
Vivekananda Narayanasamy v. MAA-Medicare Kidney Charity Fund
(Sarojini Kandasamy) [2016] 4 ILR 600

Adverse inference - Company failing to call Mohd Faizal and Melanie Guna to testify - Whether they had been important witnesses - Factors to consider - Whether an adverse inference ought to be drawn against the company
Mohd Norhelmi Mohd Salleh v. Malindo Airways Sdn Bhd
(Anna Ng Fui Choo) [2016] 4 ILR 538

Documentary evidence - Findings of the DI - Whether perverse - Factors to consider - Effect of
Vivekananda Narayanasamy v. MAA-Medicare Kidney Charity Fund
(Sarojini Kandasamy) [2016] 4 ILR 600

Witness - Failure to call - Company failing to call Theresa Kwok to rebut the claimant's contention that she had been dismissed - Effect of - Whether the evidence of COW2 had been sufficient to prove the company's contention that the claimant had walked out of her employment - Factors to consider - Effect of
Nina Chua Siok Pin v. Musim Indah Sdn Bhd
(Duncan Sikodol) [2016] 4 ILR 629

INDUSTRIAL COURT

Jurisdiction - Challenge to - Claimant claiming forced resignation but only filing his s. 20 representation after his resignation notice period had expired - Effect of - What he ought to have done - Perusal of s. 20(1A) of the IRA - When the 60 day time period had started to run - Factors to consider - Effect of - Whether the Industrial Court had the jurisdiction to hear the matter - Industrial Relations Act 1967, s. 20(1A)
Leong Koh Hong v. The Sanderson Design Group (Malaysia) Sdn Bhd
(Reihana Abd Razak) [2016] 4 ILR 624

Jurisdiction - Challenge to - Claimant claiming forced resignation in her Statement of Case contrary to the contents of the Ministerial reference - Effect of - Whether her actions had ousted the Industrial Court's jurisdiction to hear the case - Factors to consider - Whether the Industrial Court had jurisdiction to hear the matter
Sumitra Sabaratnam v. Kualiti Gold Sdn Bhd
(Ishak Mohd Yusoff) [2016] 4 ILR 478

Jurisdiction - Claimant failing to plead reinstatement in his pleadings - Whether the Industrial Court had jurisdiction to hear the matter - Factors to consider - Effect of
Mohd Norhelmi Mohd Salleh v. Malindo Airways Sdn Bhd
(Anna Ng Fui Choo) [2016] 4 ILR 538

Procedure - Action - Claimant pleading termination by the company and constructive dismissal at the same time - Whether she could claim for both - Factors to consider - Whether it had been procedurally wrong
Nina Chua Siok Pin v. Musim Indah Sdn Bhd
(Duncan Sikodol) [2016] 4 ILR 629

Remedies - Backwages - Claimant failing to plead in his Statement of Case - Whether backwages should be awarded - Factors to consider - Effect of
Mohd Norhelmi Mohd Salleh v. Malindo Airways Sdn Bhd
(Anna Ng Fui Choo) [2016] 4 ILR 538

Remedies - Compensation - Fixed compensation - Quantum of - How determined - Factors to consider - Effect of
Bennett Subash Peter v. Bon Ton Sdn Bhd (Bon Ton Resort Langkawi)
(Fredrick Indran XA Nicholas) [2016] 4 ILR 468

Remedies - Reinstatement - Claimant failing to plead in his Statement of Case - Whether it precluded the Industrial Court from hearing the matter
Mohd Norhelmi Mohd Salleh v. Malindo Airways Sdn Bhd
(Anna Ng Fui Choo) [2016] 4 ILR 538

Remedies - Reinstatement - Whether suitable to grant in the circumstances - Claimant had been a probationer when dismissed - Effect of
Bennett Subash Peter v. Bon Ton Sdn Bhd (Bon Ton Resort Langkawi)
(Fredrick Indran XA Nicholas) [2016] 4 ILR 468

LABOUR LAW

Employment - Termination of services - Retrenchment exercise - Whether carried out bona fide - Factors considered - Whether there was redundancy due to surplus of labour - Whether employee's job functions still in existence in company - Employee a long serving employee - LIFO principle - Whether followed - Whether termination tainted with mala fide - Whether termination of employee according to fair labour practice - Whether findings of fact immune from judicial review
Saw Kong Beng v. Mahkamah Perusahaan Malaysia & Anor
(Collin Lawrence Sequerah JC) [2016] 4 ILR 433

INDEKS PERKARA

KETERANGAN

Keterangan dokumentari - Pertuduhan-pertuduhan terhadap YM - Sama ada dirangka sebagai pertuduhan yang berganda - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada YM telah diprejudiskan - Apa yang syarikat seharusnya lakukan – Kesannya
Oslan Omar lwn. Indah Water Konsortium Sdn Bhd
(Siti Salwa Musa) [2016] 4 ILR 507

Keterangan dokumentari - Pertuduhan-pertuduhan yang dikenakan terhadap YM - Sama ada kabur dan cacat - Faktor-faktor yang harus diambil kira - Kesannya - Apa yang syarikat seharusnya lakukan
Oslan Omar lwn. Indah Water Konsortium Sdn Bhd
(Siti Salwa Musa) [2016] 4 ILR 507

PEMBUANGAN KERJA

Ketidakpatuhan terhadap peraturan dan polisi syarikat - Kecuaian - Sama ada YM cuai dalam menjalankan tugasnya - Keterangan yang dikemukakan - Kesannya - Sama ada pertuduhan ini berjaya dibuktikan oleh syarikat terhadapnya - Keterangan yang dikemukakan - Penilaiannya - Sama ada penamatan perkhidmatan beliau telah dilakukan secara adil dan bersebab
Oslan Omar lwn. Indah Water Konsortium Sdn Bhd
(Siti Salwa Musa) [2016] 4 ILR 507

Ketidakpatuhan terhadap peraturan dan polisi syarikat - Sama ada YM telah meletakkan diri beliau dalam situasi konflik kepentingan dengan syarikat - Sama ada syarikat berjaya membuktikan salah laku tersebut terhadap YM - Keterangan yang dikemukakan - Kesannya - Penjelasan YM - Sama ada dapat diterima - Apa yang beliau seharusnya lakukan - Jawatan yang dipegang oleh YM di syarikat - Kekananan beliau - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab
Oslan Omar lwn. Indah Water Konsortium Sdn Bhd
(Siti Salwa Musa) [2016] 4 ILR 507

Notis penamatan - Sama ada ianya mengandungi sebab mengapa YM dibuang kerja - Penelitian pliding syarikat responden - Kesannya - Sama ada YM telah diberi surat tunjuk sebab dan diberi peluang untuk membela diri - Tindakan syarikat responden terhadapnya - Sama ada mengikuti prinsip keadilan asasi - Apa yang syarikat responden seharusnya lakukan - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Chan Pak Soong lwn. Labro Sdn Bhd
(Rasidah Chik) [2016] 4 ILR 550

Notis penamatan - Sama ada YM telah ditamatkan perkhidmatannya oleh syarikat responden - Keterangan yang dikemukakan - Kesannya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab
Chan Pak Soong lwn. Labro Sdn Bhd
(Rasidah Chik) [2016] 4 ILR 550

Pemecatan secara konstruktif - YM diturunkan pangkat - Tindakan yang diambil oleh YM - Sama ada YM telah meninggalkan perkhidmatannya dan mendakwa pemecatan secara konstruktif - Faktor-faktor yang harus diambil kira - Keterangan yang dikemukakan - Kesannya - Sama ada beliau telah dipecat oleh syarikat responden - Sama ada pembuangan kerja beliau telah dilakukan secara adil dan bersebab
Chan Pak Soong lwn. Labro Sdn Bhd
(Rasidah Chik) [2016] 4 ILR 550

SIASATAN DALAMAN

Ketiadaan - Sama ada merupakan suatu perlanggaran prinsip keadilan asasi - Faktor-faktor yang harus diambil kira – Kesannya
Chan Pak Soong lwn. Labro Sdn Bhd
(Rasidah Chik) [2016] 4 ILR 550