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LATEST CASES (ILR Issue 12 of 2011)  
 

SUBJECT INDEX

CONTRACT OF EMPLOYMENT

Terms and conditions - Retirement age - No employment contract executed between the company and the claimant - Company retiring him off at the age of 55 - Whether the claimant had been aware of the company's retirement age - Conduct of the claimant - Evidence adduced - Whether it had been an implied term - Whether the company by its conduct had unilaterally imposed the retirement age on him - Claimant refusing to accept the retirement age - Effect of - Whether the company's actions had constituted a dismissal - Effect of - Whether the company's actions were bona fide - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Lim Theam Keat v. Terus Jaya Auto (M) Sdn Bhd
(Eddie Yeo Soon Chye ) [2011] 4 ILR 544 cljlaw  labourlaw

DISMISSAL

Absenteeism - Whether the claimant had been absent from work - Evidence adduced - Whether proven by the respondent - Whether the respondent had been bias in meting out punishment - Past misconducts of the claimant - Whether relevant - Effect of - Employment Act 1955, ss. 15(2) & 60F(2)
Malathy Jayaraman v. Bumiputra-Commerce Bank Bhd
(Sulaiman Ismail ) [2011] 4 ILR 679 cljlaw  labourlaw

Breach of company rules and policies - Medical leave - Failure to submit - Claimant failing to submit medical certificates to respondent within 48 hours - Reasons for the delay - Claimant's serious medical condition known by respondent - Whether dismissal had been an extreme punishment - Evidence adduced - Effect of - Whether proven by the claimant - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Malathy Jayaraman v. Bumiputra-Commerce Bank Bhd
(Sulaiman Ismail ) [2011] 4 ILR 679 cljlaw  labourlaw

Breach of company rules and policies - Negligence - Claimant failing to adhere to the company's SOP - Whether he had known of the SOP - Effect of - Whether the charges against the claimant had been proven by the company - Evidence adduced by the company - Effect of - Aircraft not suffering substantial damage - Whether the claimant's actions had put the passengers and crew of the aircraft in grave danger - Whether the claimant had committed the misconducts - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
M Krishnan S Maniam v. AirAsia Berhad
(Ahmad Terrirudin Mohd Salleh ) [2011] 4 ILR 568 cljlaw  labourlaw

Constructive dismissal - Demotion - Claimant re-transferred back to the Security Department and suffering a reduction in salary - Whether her re-transfer had been a demotion - Whether her transfer out of the Security Department had been a promotion or a lateral transfer - Evidence adduced - Evaluation of - Effect of - Re-transfer of claimant done at her request - Whether she had managed to prove that the company had breached the terms and conditions of its contract of employment with her - Whether the company by its conduct had evinced an intention to no longer be bound by the contract of employment - Effect of - Whether the claimant had successfully proven constructive dismissal - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Raynuga Munusamy v. Air Asia Bhd
(Ong Geok Lan ) [2011] 4 ILR 494 cljlaw  labourlaw

Constructive dismissal - Demotion - Claimant failing to plead constructive dismissal - Effect of - Claimant pleading forced resignation - Whether proven by the claimant - Conduct of the company towards the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Saiful Bahri Saroni v. Takaful Nasional Sdn Berhad
(Yamuna Menon ) [2011] 4 ILR 591 cljlaw  labourlaw

Constructive dismissal - Transfer - Claimant resigning - Whether it had been voluntary - Evidence adduced - Claimant's conduct - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Ngoi Ming Nguk v. Godell Parking Sdn Bhd
(Ong Geok Lan ) [2011] 4 ILR 696 cljlaw  labourlaw

Constructive dismissal - Transfer - Claimant transferred - Whether the company had the right to transfer her - Claimant's contract of employment - Whether there had been breach - Effect of - Whether the company had acted mala fide - Conduct of the company - Whether dismissal without just cause and excuse
Ngoi Ming Nguk v. Godell Parking Sdn Bhd
(Ong Geok Lan ) [2011] 4 ILR 696 cljlaw  labourlaw

Constructive dismissal - Transfer - Claimant re-transferred back to the Security Department and suffering a pay cut - Claimant protesting but only walking out of employment 1 1/2 months later - Whether her delay in walking out had meant that she had waived the breach - Evidence adduced by the company - Effect of
Raynuga Munusamy v. Air Asia Bhd
(Ong Geok Lan ) [2011] 4 ILR 494 cljlaw  labourlaw

Insubordination - Claimant "requested" to report to the Depot to cover for his colleague - Claimant asking for more pay and overtime benefits - Whether he had been entitled to them under his contract of employment - Perusal of the terms and conditions of his contract of employment - Effect of - Claimant failing to report to Depot as "requested" - Claimant accused of insubordination and discharged from service - Whether the claimant's conduct had amounted to insubordination - Evidence tendered by the parties - Effect of - Whether the misconduct had been proven against the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
David Charles Kast v. Monorail Malaysia Technology Sdn Bhd & Ors
(Franklin Goonting ) [2011] 4 ILR 516 cljlaw  labourlaw

Insubordination - Respondent accusing the claimant of being insubordinate - Evidence tendered by the respondent - Whether the charges of insubordination had been made out against the claimant - Effect of - The defence put forward by the claimant - Whether it had been acceptable - The behaviour of the claimant - Effect of - Whether the claimant's conduct had constituted insubordination - Factors to consider - Whether the respondent had managed to satisfy its burden of proof - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
David Charles Kast v. Monorail Malaysia Technology Sdn Bhd & Ors
(Franklin Goonting ) [2011] 4 ILR 516 cljlaw  labourlaw

Misconduct - Claimant accused of instigating colleague to claim constructive dismissal - Whether proven by the company - Evidence adduced - Effect of - Whether the firm had suffered damage - Whether the firm's actions in dismissing her had been done with just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Lalitha Nagamuthu v. Kamil Hashim Pury & Lim Advocates & Solicitors
(Ahmad Terrirudin Mohd Salleh ) [2011] 4 ILR 649 cljlaw  labourlaw

Misconduct - Claimant allowing the practice of `Hutang OT' - Whether it had been against company policy - Whether the company had known about the practice - Effect of - Charge brought against the claimant - Whether the company had proven the charge against her - Evidence adduced by the company - Evaluation of - Whether the company had benefited from the said practice - Whether the company had been justified in dismissing her - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Magaiswari Vadiveloo v. Mattel (Malaysia) Sdn Bhd
(Roslan Abu Bakar ) [2011] 4 ILR 528 cljlaw  labourlaw

Misconduct - Claimant failing to adhere to the company's SOP - Effect of - Reasons put forward by the claimant - Whether it had been acceptable - Whether company had been justified in dismissing him - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
M Krishnan S Maniam v. AirAsia Berhad
(Ahmad Terrirudin Mohd Salleh ) [2011] 4 ILR 568 cljlaw  labourlaw

Misconduct - Whether the claimant had been guilty of mismanagement - Effect of - Charges brought against the claimant - Whether the company had proven the charges against him - Evidence adduced by the company - Evaluation of - Whether the company had suffered disrepute due to the claimant's actions - Whether the company had suffered loss of revenue - Whether the company had been justified in dismissing him - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Lee Jern Chwee v. Muhibbah Engineering (M) Bhd
(Tay Lee Ly ) [2011] 4 ILR 609 cljlaw  labourlaw

Notice of termination - Forced resignation - Claimant resigning from the company - Whether the claimant had resigned voluntarily - Evidence adduced - Evaluation of - Whether the claimant had discharged his burden of proof - Effect of - Whether the claimant had been humiliated or had suffered undue financial hardship due to the company's actions - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Saiful Bahri Saroni v. Takaful Nasional Sdn Berhad
(Yamuna Menon ) [2011] 4 ILR 591 cljlaw  labourlaw

Notice of termination - Forced resignation - Claimant resigning - Whether she had been forced to resign - Evidence adduced - Effect of - Whether proven by the claimant - Industrial Relations Act 1967, s. 20(3)
Ngoi Ming Nguk v. Godell Parking Sdn Bhd
(Ong Geok Lan ) [2011] 4 ILR 696 cljlaw  labourlaw

Probationer - Claimant dismissed before the expiry of her probation period - Reasons for the same - Whether the company's actions had been reasonable - Evidence adduced by the company - Effect of - What the company should have done - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Lalitha Nagamuthu v. Kamil Hashim Pury & Lim Advocates & Solicitors
(Ahmad Terrirudin Mohd Salleh) [2011] 4 ILR 649 cljlaw  labourlaw

Retrenchment - Redundancy - Claimant retrenched - Company merging - Whether the merger had created a surplus of labour - Evidence adduced - Effect of - Whether the claimant had been victimized - Factors to consider - Whether the company's management prerogative should be interfered with - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Wong Wai Hung v. Equant Integration Services Sdn Bhd
(Rajendran Nayagam ) [2011] 4 ILR 708 cljlaw  labourlaw

Retrenchment - Redundancy - Claimant retrenched - Reasons for the same - Whether the principles of LIFO had been followed - Evaluation of the evidence - Effect of - Whether s. 60M of the Employment Act 1955 had applied - Whether the company's actions had been reasonable - Effect of - Claimant not consulted or informed of his retrenchment beforehand - Effect of - Whether his retrenchment had been carried out fairly - Industrial Relations Act 1967, s. 30(5), Employment Act 1955, s. 60M & Code of Conduct for Industrial Harmony cll 21 and 22(a)(I)
Wong Wai Hung v. Equant Integration Services Sdn Bhd
(Rajendran Nayagam ) [2011] 4 ILR 708 cljlaw  labourlaw

Retrenchment - Redundancy - Company reorganizing and restructuring its business - Claimant retrenched - Whether a redundancy situation had existed in the company - Whether proven by the company - Whether the claimant's position had become redundant - Whether the claimant by his conduct had accepted that he had become redundant to the respondent - Evidence adduced - Evaluation of - Whether the claimant's retrenchment had been carried out bona fide - Company's actions - Effect of - Industrial Relations Act 1967
Florentius Henry Toyad v. Cahya Mata Sarawak Berhad
(Franklin Goonting ) [2011] 4 ILR 662 cljlaw  labourlaw

DOMESTIC INQUIRY

Procedural impropriety - Claimant not raising any particular issue on the DI - Effect of - Company not adducing the notes of the DI - Effect of - Whether the matter was suitable to be heard de novo
Lee Jern Chwee v. Muhibbah Engineering (M) Bhd
(Tay Lee Ly ) [2011] 4 ILR 609 cljlaw  labourlaw

Procedural impropriety - Claimant pleaded guilty to first and second charges without being heard - Whether the claimant was denied her right to be represented - Whether the DI had been conducted according to the rules of natural justice - Evidence adduced - Effect of - Respondent bank producing claimant's past misconducts during DI - Probability of biasness in the panel members' decision - Whether the respondent's action had been justified - Industrial Relations Act 1967, s. 30(5)
Malathy Jayaraman v. Bumiputra-Commerce Bank Bhd
(Sulaiman Ismail) [2011] 4 ILR 679 cljlaw  labourlaw

Procedural impropriety - Whether the DI had been conducted according to the rules of natural justice - Factors to consider - Effect of - Whether the notes of enquiry had been accurate
Magaiswari Vadiveloo v. Mattel (Malaysia) Sdn Bhd
(Roslan Abu Bakar ) [2011] 4 ILR 528 cljlaw  labourlaw

EVIDENCE

Documentary evidence - Findings of the DI - Whether it had been accurate - Evaluation of the evidence
Malathy Jayaraman v. Bumiputra-Commerce Bank Bhd
(Sulaiman Ismail ) [2011] 4 ILR 679 cljlaw  labourlaw

INDUSTRIAL COURT

Remedies - Compensation - Probationer claimant - What had been suitable to award in the circumstances - Quantum of compensation - How determined
Lalitha Nagamuthu v. Kamil Hashim Pury & Lim Advocates & Solicitors
(Ahmad Terrirudin Mohd Salleh ) [2011] 4 ILR 649 cljlaw  labourlaw

Remedies - Compensation - Whether the severance pay given by the company had been adequate - Factors to consider - Effect of - Claimant remaining unemployed after being terminated - Treatment of the claimant by the company - What the company should have awarded
Wong Wai Hung v. Equant Integration Services Sdn Bhd
(Rajendran Nayagam ) [2011] 4 ILR 708 cljlaw  labourlaw

Remedies - Compensation in lieu of reinstatement - Whether appropriate to grant under the circumstances - Factors to consider - Claimant only with the company for 11 months - Effect of
Wong Wai Hung v. Equant Integration Services Sdn Bhd
(Rajendran Nayagam ) [2011] 4 ILR 708 cljlaw  labourlaw

INDEKS PERKARA

PEMBUANGAN KERJA

Pekerja percubaan - Tempoh percubaan YM dilanjutkan - Sebabnya - YM tidak disahkan dalam jawatan malahan dibuang kerja - Sebabnya - Sama ada mutu perkhidmatan YM yang kurang memuaskan dapat dibuktikan oleh responden - Keterangan yang dikemukakan - Kesannya - Sama ada pembuangan kerja YM adalah tanpa alasan atau sebab yang adil - Akta Perhubungan Perusahaan 1967, s. 20(3)
Wan Shaiful Eliza Rahim lwn. TWP Sdn Bhd
(Samsudin Hassan ) [2011] 4 ILR 485 cljlaw  labourlaw

Pemecatan secara konstruktif - Penurunan pangkat - YM telah ditukar ke bahagian lain dalam syarikat - Sama ada YM telah menerima pertukaran tersebut - Faktor-faktor yang harus diambil kira
Zulkifli Ahmad lwn. Embo Wood Industries (M) Sdn Bhd
(Roslan Abu Bakar ) [2011] 4 ILR 555 cljlaw  labourlaw

Pemecatan secara konstruktif - Pertukaran jawatan - Sama ada YM telah mendedahkan rahsia syarikat responden - YM menandatangani surat akujanji untuk menyimpan rahsia syarikat responden - Kandungan surat di dalam Bahasa Inggeris - Sama ada YM memahami kandungan surat tersebut - Faktor-faktor yang harus diambil kira - Sama ada tindakan responden memberhentikan perkhidmatan YM merupakan suatu perlanggaran yang melibatkan asas kontrak antara mereka - Sama ada pembuangan kerja YM adalah tanpa alasan atau sebab yang adil - Akta Perhubungan Perusahaan 1967, s. 20(3)
Zulkifli Ahmad lwn. Embo Wood Industries (M) Sdn Bhd
(Roslan Abu Bakar ) [2011] 4 ILR 555 cljlaw  labourlaw

Pemecatan secara konstruktif - Pertukaran jawatan - Sebab YM ditukar jawatan - Sama ada integriti beliau terlibat dalam salah laku tersebut - Sama ada responden berhak untuk mempunyai pekerja yang berintegriti - Kesannya - Sama ada responden berhak untuk menukar jawatan YM - Terma-terma perkhidmatan YM - Sama ada tindakan responden merupakan perlanggaran yang melibatkan asas kontrak antara mereka - Sama ada pembuangan kerja YM adalah tanpa alasan atau sebab yang adil - Akta Perhubungan Perusahaan 1967, s. 20(3)
Zulkifli Ahmad lwn. Embo Wood Industries (M) Sdn Bhd
(Roslan Abu Bakar ) [2011] 4 ILR 555 cljlaw  labourlaw

Perkhidmatan - Mutu perkhidmatan YM - Sama ada ianya memuaskan responden - Kesannya - Sama ada YM mempunyai pengetahuan tentang mutu perkhidmatannya yang kurang memuaskan - Sama ada YM diberi peluang untuk memperbaiki mutu perkhidmatannya - Sama ada YM mengambil langkah untuk memperbaiki mutu perkhidmatannya - Keterangan yang dikemukakan - Kesannya - Sama ada pembuangan kerja YM adalah tanpa alasan atau sebab yang adil - Akta Perhubungan Perusahaan 1967, s. 20(3)
Wan Shaiful Eliza Rahim lwn. TWP Sdn Bhd
(Samsudin Hassan ) [2011] 4 ILR 485 cljlaw  labourlaw

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