LATEST CASES (ILR Issue 12 of 2019)

SUBJECT INDEX

DISMISSAL

Constructive dismissal – Benefits – Company approving her long leave and then subsequently attempting to cancel it – Whether the company's actions had been reasonable – Factors to consider – Evidence adduced – Effect of – Whether she had been entitled to utilise or clear her balance annual leave – Whether her claim for constructive dismissal ought to be allowed
Joo Chooi Me v. Sampro Distribution Sdn Bhd
(Andersen Ong Wai Leong) [2019] 4 ILR 471

Constructive dismissal – Change in job functions – Unilateral removal of the claimant's roles and responsibilities by the company – Whether the company had removed her from her roles with valid reason – Factors to consider – Evidence adduced – Evaluation of – Effect of – Actions taken by the company towards her – What it had shown – Whether reasonable – Whether it had justified her walking out of her employment and claiming constructive dismissal
Joo Chooi Me v. Sampro Distribution Sdn Bhd
(Andersen Ong Wai Leong) [2019] 4 ILR 471

Constructive dismissal – Salary – Company attempting to reduce her salary – Whether its actions had seriously dampened the trust and confidence between the parties – Whether the company, by its actions, had evinced an intention not to be bound by her contract of employment
Joo Chooi Me v. Sampro Distribution Sdn Bhd
(Andersen Ong Wai Leong) [2019] 4 ILR 471

Constructive dismissal – Whether the claimant had been victimised or her reputation damaged, by the company's actions – Factors to consider – Evidence adduced – Effect of – Whether its actions had clearly undermined the relationship of trust and confidence between the employer and employee – Whether it had justified her walking out and claiming constructive dismissal
Joo Chooi Me v. Sampro Distribution Sdn Bhd
(Andersen Ong Wai Leong) [2019] 4 ILR 471

Constructive dismissal – Whether the company had repeatedly harassed, humiliated and/or ridiculed the claimant – Evidence adduced – Evaluation of – Effect of – Whether the company's actions had been warranted – Whether it had justified the claimant walking out and claiming constructive dismissal
Joo Chooi Me v. Sampro Distribution Sdn Bhd
(Andersen Ong Wai Leong) [2019] 4 ILR 471

Misconduct – Whether the claimant had harassed her subordinates by spreading unsubstantiated rumours of a malicious nature about them – Factors to consider – Evidence adduced – Effect of – What her actions had shown – Position held by the claimant in the company – Effect of – Whether the charge had been proven against her – Whether it had justified her dismissal
Afnizahanim Mohammad Saad v. Kemaman Bitumen Company Sdn Bhd
(Noor Ruwena Dato' Mohd Nurdin) [2019] 4 ILR 503

Misconduct – Whether the claimant had withheld information, made untrue statements and lied to the CEO – Factors to consider – Evidence adduced – Effect of – Claimant's defence – Whether could be accepted – Whether the company had had reasonable grounds to believe that she had committed the offence – Effect of – Whether the charge had been proven against her – Whether it had justified her dismissal
Afnizahanim Mohammad Saad v. Kemaman Bitumen Company Sdn Bhd
(Noor Ruwena Dato' Mohd Nurdin) [2019] 4 ILR 503

Retrenchment – Redundancy – Claimant offered MSS – Whether mutual termination had taken place upon her acceptance of it – Factors to consider – Evaluation of the case laws – Effect of
Liza Umi Mohd Ibrahim v. Persatuan Bagi Orang Buta Malaysia
(Syed Noh Said Nazir) [2019] 4 ILR 608

Retrenchment – Redundancy – Claimant terminated based on MSS – Whether the MSS had been signed voluntarily – Factors to consider – Evidence adduced – Evaluation of – Whether the claimant had been dismissed by the company – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Liza Umi Mohd Ibrahim v. Persatuan Bagi Orang Buta Malaysia
(Syed Noh Said Nazir) [2019] 4 ILR 608

Retrenchment – Redundancy – Whether the Association had followed the LIFO principle – Evidence adduced – Effect of – What it had shown
Liza Umi Mohd Ibrahim v. Persatuan Bagi Orang Buta Malaysia
(Syed Noh Said Nazir) [2019] 4 ILR 608

Retrenchment – Redundancy – Whether the claimant's position had become redundant – Whether the downsizing undertaken by it had been a bona fide exercise of management's prerogative – Factors to consider – Evidence adduced – Effect of – Association's financial standing – What it had shown – Whether she had been dismissed – Whether dismissal without just cause and excuse
Liza Umi Mohd Ibrahim v. Persatuan Bagi Orang Buta Malaysia
(Syed Noh Said Nazir) [2019] 4 ILR 608

EVIDENCE

Documentary evidence – Whether the claimant, who had been employed as a locum doctor, had been a workman within the definition of s. 2 of the Industrial Relations Act – Factors to consider – Evidence adduced – Effect of – Evaluation of the evidence and case laws – What it had shown – What the intention of the parties had been – Conduct and actions of the claimant – What it had shown – Industrial Relations Act 1967, s. 2
K Sakthiaseelan Kumaraveloo v. Poliklinik Dan Surgeri Semarak (Aker Solution In-House Clinic)
(P Iruthayaraj D Pappusamy) [2019] 4 ILR 634

INDUSTRIAL COURT

Jurisdiction – Whether the respondent had been a statutory body – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the Industrial Court had jurisdiction to hear the matter – Whether the claimant had been excluded from redress available to the ordinary workman under s. 20(1) of the IRA – Farmers' Organization Act 1973, s. 7, Farmers' Organization Authority Act 1973, Industrial Relations Act 1967, ss. 2, 20(1), 52(1) & Part VI & Rules of Farmers Organization 1983, P.U.(A) 303
Hamid Sulaiman v. Pertubuhan Peladang Kebangsaan (NAFAS)
(Rajeswari Karupiah) [2019] 4 ILR 542

Remedies – Punishment – Whether dismissal had been too harsh under the circumstances – Factors to consider – Whether the claimant's exemplary service record could be considered a mitigating factor in this case – Factors to consider – Effect of
Afnizahanim Mohammad Saad v. Kemaman Bitumen Company Sdn Bhd
(Noor Ruwena Dato' Mohd Nurdin) [2019] 4 ILR 503

LABOUR LAW

Social security – Survivors' pension – Claim by widow of deceased – Marriage solemnised by way of Chinese customary marriage – Marriage never registered under Law Reform (Marriage and Divorce) Act 1976 (‘LRA') – Whether widow fell within category of ‘dependant' under s. 2(3) of Employees' Social Security Act 1969 (‘ESSA') – Whether word ‘dependant' in s. 2(3) of ESSA includes widow of deceased insured person – Whether must prove valid marriage solemnised and registered under LRA – Whether s. 2(3) of ESSA refers to ‘widow or widower and not ‘lawful widow' or ‘lawful widower' of deceased – Whether widow entitled to be paid survivors' pension
Ketua Pengarah Pertubuhan Keselamatan Sosial v. Lam Kun Tai
(Su Geok Yiam J) [2019] 4 ILR 449

TRADE DISPUTE

Collective Agreement – Parties entering into a MOA during the term of the CA – Whether the MOA had legally bound the parties – Factors to consider – Evidence adduced – Effect of – Actions of the union – What the intention of the parties had been – Effect of – Industrial Relations Act 1967, Part IV and s. 16
National Union Of Bank Employees (NUBE) v. HSBC Bank Malaysia Berhad
(Rajendran Nayagam) [2019] 4 ILR 630

Collective Agreement – Terms and conditions of service – Article on annual leave – Determination of the number of days – Factors to consider – Effect of – Whether the status quo ought to be maintained – Employment Act 1955, s. 60E & Industrial Relations Act 1967, s. 14
All Malayan Estates Staff Union v. Seri Langat Palm Oil Mill Sdn Bhd
(Jalaldin Hussain) [2019] 4 ILR 550

Collective Agreement – Terms and conditions of service – Article on attendance allowance – What would be a fair amount to set – Whether the status quo ought to be maintained – Factors to consider – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. Isuzu Hicom Malaysia Sdn Bhd
(Franklin Goonting) [2019] 4 ILR 576

Collective Agreement – Terms and conditions of service – Article on duration – Determination of the duration of the 5th CA – Factors to consider – Effect of – Industrial Relations Act 1967, s. 30(7)
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. Isuzu Hicom Malaysia Sdn Bhd
(Franklin Goonting) [2019] 4 ILR 576

Collective Agreement – Terms and conditions of service – Article on public holidays – Determination of the number of days – Factors to consider – Effect of – Whether the status quo ought to be maintained – Employment Act 1955, s. 60D & Industrial Relations Act 1967, s. 30(4)
All Malayan Estates Staff Union v. Seri Langat Palm Oil Mill Sdn Bhd
(Jalaldin Hussain) [2019] 4 ILR 550

Collective Agreement – Terms and conditions of service – Article on retirement benefit – Benefits currently granted by the company – Whether sufficient – Whether the status quo ought to be maintained – Factors to consider – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. Isuzu Hicom Malaysia Sdn Bhd
(Franklin Goonting) [2019] 4 ILR 576

Collective Agreement – Terms and conditions of service – Article on salary scale – What would be a fair percentage to set – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, s. 30(7)
All Malayan Estates Staff Union v. Seri Langat Palm Oil Mill Sdn Bhd
(Jalaldin Hussain) [2019] 4 ILR 550

Collective Agreement – Terms and conditions of service – Article on wages and increment – Determination of a fair percentage to allow – Factors to consider – Evidence adduced – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. Isuzu Hicom Malaysia Sdn Bhd
(Franklin Goonting) [2019] 4 ILR 576

Collective Agreement – Terms and conditions of service – Company concluding current CA with KPSCM but failing to proceed with collective bargaining with NUJ on the same issue – Reasons for the same – Whether the company's actions had been justified – Factors to consider – Effect of – Whether a trade dispute had existed between the company and NUJ – Industrial Relations Act 1967, s. 17(1)(b) & (2)
Kesatuan Kebangsaan Wartawan Semenanjung Malaysia v. Sin Chew Media Corporation Berhad
(Rajendran Nayagam) [2019] 4 ILR 464

Collective Agreement – Terms and conditions of service – Company historically dealing with two unions – Whether that had augured well for industrial harmony – Factors to consider – Effect of – Industrial Relations Act 1967, s. 17(1)(b) & (2)
Kesatuan Kebangsaan Wartawan Semenanjung Malaysia v. Sin Chew Media Corporation Berhad
(Rajendran Nayagam) [2019] 4 ILR 464

Collective Agreement – Terms and conditions of service – Whether the company is, and should be, allowed to implement its proposed working shift pattern – Factors to consider – Evidence adduced – Effect of – Employment Act 1955, s. 60C(2), Industrial Relations Act 1967, ss. 18, 26, 30(4) and (5) & Malaysian Aviation Commissions Directives
Malaysia Airport Holdings Berhad v. Kesatuan Pekerja-pekerja Malaysia Airport Berhad Semenanjung Malaysia (KESMA)
(Franklin Goonting) [2019] 4 ILR 643

INDEKS PERKARA

MAHKAMAH PERUSAHAAN

Bidang kuasa – Had masa – Sama ada representasi YM berada di luar batasan masa sepertimana diperuntukkan oleh s. 20(1A) Akta – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Maksud "Tarikh Difailkan" – Akta Perhubungan Perusahaan 1967, s. 20(1A)
Adam Husein Yusop lwn. CIMB Bank Berhad
(Noor Hayati Haji Mat) [2019] 4 ILR 492

Bidang kuasa – YM dan bank telah menandatangani satu Memorandum Persetujuan – Kesannya – Sama ada Mahkamah Perusahaan mempunyai bidang kuasa untuk membicarakan dan menurunkan Award bagi kemungkiran mana-mana terma Memorandum Persetujuan tersebut kerana alegasi kemungkirannya – Sama ada alegasi kemungkiran Memorandum Persetujuan boleh membuka semula representasi di bawah s. 20 Akta – Faktor-faktor yang harus diambil kira – Kesannya – Sama ada Mahkamah Perusahaan mempunyai bidang kuasa untuk mendengar rujukan ini – Akta Perhubungan Perusahaan 1967, s. 20(2)
Adam Husein Yusop lwn. CIMB Bank Berhad
(Noor Hayati Haji Mat) [2019] 4 ILR 492