BULLETIN 2/2017

LATEST CASES (ILR Issue 1 of 2017)

SUBJECT INDEX

DISMISSAL

Breach of company rules and policies - Bullying and intimidation - Whether the claimant had bullied and intimidated his subordinates - Evidence adduced - Evaluation of - Effect of - Claimant partially admitting to the same - Whether his conduct had justified the respondent company dismissing him - Whether dismissal without just cause and excuse
Chew Chor Eng v. Golden Palm Tree Resort & SPA Sdn Bhd
(Eddie Yeo Soon Chye) [2017] 1 ILR 140 cljlaw labourlaw

Breach of company rules and policies - Dishonesty - Whether the claimant had failed to collect and hand over the car park rentals from the respondent company's tenants - Evidence adduced - Effect of - Whether it had been a part of his KPI - Claimant's defence - Whether could be accepted - Position held by the claimant in the respondent company - What had been expected of him - Whether discharged by him - Factors to consider - Whether the respondent company had acted reasonably in dismissing him - Whether dismissal with just cause and excuse
Suresh Nair Gopa Kumar v. CIMB Bank Berhad
(Tan Ghee Phaik) [2017] 1 ILR 76 cljlaw labourlaw

Breach of company rules and policies - Dishonesty - Whether the respondent company had successfully proven the charges against him - Factors to consider - Evidence adduced - Effect of
Suresh Nair Gopa Kumar v. CIMB Bank Berhad
(Tan Ghee Phaik) [2017] 1 ILR 76 cljlaw labourlaw

Breach of company rules and policies - Negligence - Whether the claimant had been negligent in the discharge of his duties - Company only taking action against him 14 months after the show cause letter - Whether it had condoned his actions - Whether the principle of condonation had any application in this case - Effect of - Whether his dismissal had been justified
Hamdan Mohd Noor v. Perusahaan Otomobil Nasional Sdn Bhd
(Jamhirah Ali) [2017] 1 ILR 1 cljlaw labourlaw

Breach of company rules and policies - Negligence - Whether the claimant had been negligent in the discharge of his duties - Factors to consider - Evidence adduced - Effect of - Company's actions towards him - What it had shown - Whether the claimant had been a scapegoat for the company - Whether the charge had been proven against him - Whether the company had been justified in dismissing him - Whether dismissal without just cause or excuse
Hamdan Mohd Noor v. Perusahaan Otomobil Nasional Sdn Bhd
(Jamhirah Ali) [2017] 1 ILR 1 cljlaw labourlaw

Breach of company rules and policies - Theft - Whether proven by the respondent company - Factors to consider - Evidence adduced - Effect of - Whether it had justified her dismissal - What the respondent company should have done - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mariaee Maniam v. Sime Darby Plantation Sdn Bhd
(Eddie Yeo Soon Chye) [2017] 1 ILR 59 cljlaw labourlaw

Constructive dismissal - Demotion - Whether the claimant had been demoted - Factors to consider - Evidence adduced - Effect of - The claimant's job grade and terms and conditions of employment remaining the same after the transfer - What that had shown
Chan Yew Choon v. MJ Department Stores Sdn Bhd
(Anna Ng Fui Choo) [2017] 1 ILR 195 cljlaw labourlaw

Constructive dismissal - Transfer - Whether the claimant, by his transfer, had been constructively dismissed - Claimant attending an employment interview with OSIM in meantime - What it had shown - Reasons why he had walked out of his employment - Evidence adduced - Effect of - Whether the company had breached the terms and conditions of his employment contract - Whether it had been a fundamental breach going to the root of his contract of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Chan Yew Choon v. MJ Department Stores Sdn Bhd
(Anna Ng Fui Choo) [2017] 1 ILR 195 cljlaw labourlaw

Constructive dismissal - Transfer - Whether the claimant had been forced to go on transfer - Factors to consider - Evidence adduced - Effect of - Claimant's actions - What it had shown - Whether his transfer had taken him unawares as alleged - Effect of - Whether he had been victimised before and after his transfer - Whether it had been a bona fide exercise of management's prerogative - Whether dismissal without just cause and excuse
Chan Yew Choon v. MJ Department Stores Sdn Bhd
(Anna Ng Fui Choo) [2017] 1 ILR 195 cljlaw labourlaw

Misconduct - Sexual harassment - Claimant accused of sexually harassing the complainant - Whether proven by the respondent company - Evidence adduced - Evaluation of - Effect of - Complainant failing to lodge a police report and give evidence in Court - What that had meant - Whether the respondent company had acted reasonably in dismissing him - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Chew Chor Eng v. Golden Palm Tree Resort & SPA Sdn Bhd
(Eddie Yeo Soon Chye) [2017] 1 ILR 140 cljlaw labourlaw

Misconduct - Whether the claimant had been unable to improve guest satisfaction - Whether it had been an integral part of his duties - Factors to consider - Position held by the claimant in the company - Effect of - Whether the charge had been proven against him - Whether dismissal without just cause and excuse
Chew Chor Eng v. Golden Palm Tree Resort & SPA Sdn Bhd
(Eddie Yeo Soon Chye) [2017] 1 ILR 140 cljlaw labourlaw

Misconduct - Whether the claimant had displayed a lack of urgency in adhering to the critical path of the respondent company's conversion - Evidence adduced - Evaluation of - Effect of - Claimant's position in the company - Whether he should have taken the lead - Factors to consider - Effect of - His admissions - What it had shown - Whether the charge had been proven against him - Whether dismissal without just cause and excuse
Chew Chor Eng v. Golden Palm Tree Resort & SPA Sdn Bhd
(Eddie Yeo Soon Chye) [2017] 1 ILR 140 cljlaw labourlaw

Misconduct - Whether the claimant had failed to guide and supervise his senior team - Evidence adduced - Evaluation of - Effect of - Claimant admitting to the same - Whether his conduct had justified the respondent company dismissing him - Whether dismissal without just cause and excuse
Chew Chor Eng v. Golden Palm Tree Resort & SPA Sdn Bhd
(Eddie Yeo Soon Chye) [2017] 1 ILR 140 cljlaw labourlaw

Misconduct - Whether the claimant had had a lack of comprehension and awareness of financials in respect of the respondent company - Evidence adduced - Evaluation of - Effect of - Claimant's defence - Whether could be accepted - Whether the charge had been proven against him - Whether his conduct had justified the respondent company dismissing him - Whether dismissal without just cause and excuse
Chew Chor Eng v. Golden Palm Tree Resort & SPA Sdn Bhd
(Eddie Yeo Soon Chye) [2017] 1 ILR 140 cljlaw labourlaw

Performance - Unsatisfactory performance - Claimant allegedly failing to perform up to expectations - Whether proven by the company - Evidence adduced - Evaluation of - Effect of - Whether the company's actions towards him had been bona fide - Whether the claimant had been victimised - Whether the company had behaved reasonably towards him - Factors to consider - Whether his non-performance had justified his dismissal - Claimant's conduct - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Rajendra Rao v. CIMB Aviva Assurance Berhad
(Anna Ng Fui Choo) [2017] 1 ILR 32 cljlaw labourlaw

Probationer - Whether the claimant had been a probationer at the time of his dismissal - Factors to consider - Effect of
Rajendra Rao v. CIMB Aviva Assurance Berhad
(Anna Ng Fui Choo) [2017] 1 ILR 32 cljlaw labourlaw

DOMESTIC INQUIRY

Charges - Whether the charges framed against the claimant had been grossly defective for want of material particulars - Factors to consider - Effect of - Perusal of the contents of the charges - What the company should have done - Whether the charges against the claimant had been void ab initio
Hasdie Tusin v. Kudat Golf & Marina Resort (Tangamahir Sdn Bhd)
(Duncan Sikodol) [2017] 1 ILR 50 cljlaw labourlaw

EVIDENCE

Witness - Material contradictions and inconsistencies - Whether the evidence of COW1 and COW2 had been credible - Factors to consider - Effect of - Whether they had been credible witnesses
Mariaee Maniam v. Sime Darby Plantation Sdn Bhd
(Eddie Yeo Soon Chye) [2017] 1 ILR 59 cljlaw labourlaw

INDUSTRIAL COURT

Jurisdiction - Company in breach of the Minimum Wages Order 2012 - Whether the Industrial Court had been the correct forum to bring it up in - Factors to consider - Effect of - Which forum had been more appropriate to deal with it
Hasdie Tusin v. Kudat Golf & Marina Resort (Tangamahir Sdn Bhd)
(Duncan Sikodol) [2017] 1 ILR 50 cljlaw labourlaw

Remedies - Backwages awarded to the claimant - Whether a deduction ought to be made for contributory conduct - Factors to consider - Effect of
Hasdie Tusin v. Kudat Golf & Marina Resort (Tangamahir Sdn Bhd)
(Duncan Sikodol) [2017] 1 ILR 50 cljlaw labourlaw

TRADE DISPUTE

Collective Agreement - Terms and conditions of service - Article on service charge - Whether it could be utilised by the hotel unilaterally and arbitrarily as it saw fit - Perusal of the Collective Agreement and the article on service charge - Effect of - Hotel using the employees' service charge points to top up their minimum wages, in order to comply with the MWO - Whether the hotel's actions had been correct - Factors to consider - Effect of - Whether the hotel had the financial capacity to pay its employees the minimum wage without drawing from their service charge - Evaluation of the evidence adduced - Effect of - Industrial Relations Act 1967, ss. 18(1) & 30(4)
Federal Hotels Sendirian Berhad (The Federal Hotel Kuala Lumpur) v. Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia
(Anna Ng Fui Choo) [2017] 1 ILR 108 cljlaw labourlaw

Collective Agreement - Terms and conditions of service - Hotel using the employees' service charge points to top up their minimum wages, in order to comply with the MWO - Whether the MWO Guidelines could be waved aside on the ground that it had been merely advisory and had no legal binding effect - Factors to consider - Effect of - National Wages Consultative Council Act 2011, ss. 3 & 4(2)
Federal Hotels Sendirian Berhad (The Federal Hotel Kuala Lumpur) v. Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia
(Anna Ng Fui Choo) [2017] 1 ILR 108 cljlaw labourlaw

Collective Agreement - Terms and conditions of service - Union claiming for refund of deducted service charges wrongfully deducted by the hotel - Whether this claim had been in excess of the Minister's reference which had specifically concerned the restructuring of wages - Whether ought to be allowed - Factors to consider - Effect of - Industrial Relations Act 1967, s. 30(6)
Federal Hotels Sendirian Berhad (The Federal Hotel Kuala Lumpur) v. Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia
(Anna Ng Fui Choo) [2017] 1 ILR 108 cljlaw labourlaw

INDEKS PERKARA

KETERANGAN

Saksi - Keterangan saksi syarikat responden hanya diberi secara lisan - Sama ada memadai untuk membuktikan pertuduhan terhadap YM - Faktor-faktor yang harus diambil kira – Kesannya
Raffan Kashoggi Ramli lwn. Nectar Agro (M) Sdn Bhd
(Sapini Mat Saman) [2017] 1 ILR 173 cljlaw labourlaw

MAHKAMAH PERUSAHAAN

Prosedur - Tindakan - YM memohon untuk kos disebabkan permohonan penangguhan oleh pihak responden - Sama ada wajar diperintahkan - Akta Perhubungan Perusahaan, s. 29(g)
Mohd Nor Khan Gulam Haider lwn. Air Asia Berhad
(Siti Salwa Musa) [2017] 1 ILR 73 cljlaw labourlaw

PEMBUANGAN KERJA

Kehadiran - Sama ada YM telah pulang awal daripada kerja tanpa mendapatkan kebenaran - Keterangan yang dikemukakan - Kesannya - Sama ada berjaya dibuktikan oleh syarikat responden - Penjelasan YM - Sama ada dapat diterima - Tindakan syarikat responden terhadapnya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab
Jayaselan Krishnan lwn. Bersatu Integrated Logistics Sdn Bhd
(Sapini Mat Saman) [2017] 1 ILR 162 cljlaw labourlaw

Ketidakpatuhan terhadap peraturan dan polisi syarikat - Sama ada YM telah mengugut Penyelia Operasinya - Faktor-faktor yang harus diambil kira - Keterangan yang dikemukakan - Kesannya - Sama ada pertuduhan ini berjaya dibuktikan oleh syarikat responden terhadapnya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Jayaselan Krishnan lwn. Bersatu Integrated Logistics Sdn Bhd
(Sapini Mat Saman) [2017] 1 ILR 162 cljlaw labourlaw

Ketidakturutan - Sama ada tindakan YM1 dan YM2 tidak memaklumkan atau mendapat kebenaran daripada pegawai atasan mereka sebelum memberhentikan lori tersebut sebanyak dua kali merupakan satu salah laku yang serius - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada pertuduhan ini berjaya dibuktikan oleh syarikat responden - Keterangan yang dikemukakan - Kesannya - Sama ada pembuangan kerja YM1 dan YM2 telah dilakukan secara adil dan bersebab
Lachemunan Vadivelloo & Satu Lagi lwn. FY Sdn Bhd
(Rasidah Chik) [2017] 1 ILR 180 cljlaw labourlaw

Ketidakturutan - Sama ada YM gagal untuk mengikut arahan Pengurus Operasinya - Keterangan yang dikemukakan - Kesannya - Sama ada pertuduhan ini berjaya dibuktikan oleh syarikat responden - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab
Jayaselan Krishnan lwn. Bersatu Integrated Logistics Sdn Bhd
(Sapini Mat Saman) [2017] 1 ILR 162 cljlaw labourlaw

Prestasi kerja - Prestasi kerja yang tidak memuaskan - Sama ada pertuduhan ini berjaya dibuktikan oleh syarikat responden terhadap YM - Keterangan yang dikemukakan - Kesannya - Sama ada tindakan syarikat responden adalah berpatutan - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Raffan Kashoggi Ramli lwn. Nectar Agro (M) Sdn Bhd
(Sapini Mat Saman) [2017] 1 ILR 173 cljlaw labourlaw
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