LATEST CASES (ILR Issue 01 of 2019)

SUBJECT INDEX

DISMISSAL

Absenteeism – Whether the claimant had been absent from work without leave – Factors to consider – Evidence adduced – Effect of – Whether proven by the company against him – Claimant’s explanations – Whether it had merit – Factors to consider – Whether the company had acted reasonably towards him – Position held by the claimant in the company – Whether his dismissal had been without just cause and excuse
Tan Tian Hock v. Timberion Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2019] 1 ILR 43

Absenteeism – Whether the claimant had been absent without leave on the material days – Evidence adduced – Effect of – Claimant’s explanations – Whether acceptable – Whether he had been absent from work without leave – Claimant successfully completing the Attendance Monitoring Programme and getting good reviews – Whether the company’s actions of subsequently punishing him on similar grounds had been correct – Whether the company had shown mala fide intent towards him – Factors to consider – Effect of – Whether charge proven by the company – Whether his misconduct had justified his dismissal – Whether dismissal too harsh under the circumstances – Whether dismissal without just cause and excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Thamotharan Ramasanderan v. UMW Toyota Motor Sdn Bhd
(Yong Soon Ching) [2019] 1 ILR 7

Attendance – Lateness – Whether the claimant had displayed tardiness in his work attendance – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant’s defence – Whether could be accepted – Whether his actions had constituted misconduct warranting his dismissal – Factors to consider – Whether his dismissal had been without just cause and excuse
Tan Tian Hock v. Timberion Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2019] 1 ILR 43

Breach of company rules and policies – Dishonesty – Whether the claimant had forwarded false claims for cleaning and maintenance services – Evidence adduced – Effect of – His actions and defence – Whether acceptable – Whether the charge had been proven against him – Whether the charge had related to his substantive position as a Senior Lecturer – Factors to consider – Effect of – Whether he should have been dismissed – Whether dismissal without just cause and excuse
Lamjin Atoh v. Sabah Learning Centre, Open University Malaysia (OUM)
(Duncan Sikodol) [2019] 1 ILR 84

Breach of company rules and policies – Negligence – Whether the claimant had been negligent in the performance of his duties – Evidence adduced – Evaluation of – Effect of – The company’s actions towards him – Whether the company had been reasonable in dismissing him – Whether dismissal without just cause and excuse
Lamjin Atoh v. Sabah Learning Centre, Open University Malaysia (OUM)
(Duncan Sikodol) [2019] 1 ILR 84

Constructive dismissal – Demotion – Claimant offered new employment terms containing a downward revision – Whether it had been a fundamental breach which had gone to the root of her contract of employment – The reasons put forth by the company – Whether acceptable – Factors to consider – Evidence adduced – Effect of – Whether the claimant had acted within a reasonable time – Whether she had been constructively dismissed – Whether dismissal without just cause and excuse
Gursharan Kaur Gurdav Singh v. Momentum Wellness Sdn Bhd
(Bernard John Kanny) [2019] 1 ILR 219

Constructive dismissal – Transfer – Claimant offered new employment terms containing a downward revision – Company citing reorganisation as a reason – Whether the reorganisation exercise had been carried out bona fide – Factors to consider – Evidence adduced – Effect of – Company’s actions – What it had shown
Gursharan Kaur Gurdav Singh v. Momentum Wellness Sdn Bhd
(Bernard John Kanny) [2019] 1 ILR 219

Misconduct – Picketing – Whether the claimant had been involved in an unlawful picket – Evidence adduced – Effect of – What the union should have done instead
Victor Asir Jatham Juvakin v. United Sanoh Industries Sdn Bhd
(Rajendran Nayagam) [2019] 1 ILR 148

Misconduct – Whether the claimant’s demand for commissions for doing a job within his job scope, had constituted misconduct – Factors to consider – Effect of
Tan Tian Hock v. Timberion Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2019] 1 ILR 43

Misconduct – Whether the claimant had applied, as a college and university, to the Ministry for a Training Visa, thus breaching the fundamental terms of confidentiality and fiduciary duties he had owed the company as the CEO – Factors to consider – Evidence adduced – Effect of – Whether the company had succeeded in establishing the misconduct against him – Claimant’s defence – Whether acceptable – Whether dismissal with just cause and excuse
K Indhira Raja Kalandasamy v. Khas Cergas Sdn Bhd
(Sarojini Kandasamy) [2019] 1 ILR 23

Misconduct – Whether the claimant had applied to the Ministry for approval of an Ex-Pat Employment Pass, vide another company, using the company’s information as his own – Factors to consider – Evidence adduced – Effect of – Whether the company had succeeded in establishing the misconduct against him – Claimant’s defence – Whether acceptable – Whether dismissal with just cause and excuse
K Indhira Raja Kalandasamy v. Khas Cergas Sdn Bhd
(Sarojini Kandasamy) [2019] 1 ILR 23

Misconduct – Whether the claimant had been guilty of sexual grooming – Factors to consider – Evidence adduced – Effect of – Claimant largely admitting to the same – Effect of – Whether the charge had been proven against him – Whether it had constituted serious misconduct – His defence – Whether could be accepted – Whether the company had acted reasonably in dismissing him – Whether dismissal without just cause and excuse
Syed Naharudin Syed Hashim v. Etiqa Takaful Berhad
(Yong Soon Ching) [2019] 1 ILR 198

Misconduct – Whether the claimant had been guilty of sexual grooming – Whether his actions had tarnished the image of the company – Factors to consider – Evidence adduced – Evaluation of – Effect of – Position held by the claimant in the company and his years of service with it – Whether the company had acted reasonably in dismissing him – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Syed Naharudin Syed Hashim v. Etiqa Takaful Berhad
(Yong Soon Ching) [2019] 1 ILR 198

Misconduct – Whether the claimant had intended to cheat the company of RM150 – Factors to consider – Evidence adduced – Effect of – His explanations – Whether could be accepted – What his actions had shown – Whether the company had acted reasonably in thinking that he had intended to cheat it – Whether it had warranted his dismissal – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Tan Tian Hock v. Timberion Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2019] 1 ILR 43

Misconduct – Whether the claimant’s pre-approved leave had been subject to guidelines issued by the company subsequently – Evidence adduced – Effect of – Whether misconduct proven by the company – Whether her misconduct had justified her dismissal – Whether dismissal without just cause and excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Lynette Suppiah v. Malaysia Mega Galvaniser Sdn Bhd
(Rajendran Nayagam) [2019] 1 ILR 187

Misconduct – Whether the claimant’s refusal to stop picketing and do overtime work had constituted serious misconduct – Factors to consider – Effect of – Claimant serving the company for 13 years – Whether it could assist him now
Victor Asir Jatham Juvakin v. United Sanoh Industries Sdn Bhd
(Rajendran Nayagam) [2019] 1 ILR 148

Misconduct – Whether the claimant had set up another company which had had the same business operations and address as the company – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had succeeded in establishing the misconduct against him – Claimant’s defence – Whether could be accepted – Whether the company’s conduct towards him had shown mala fide intent – Factors to consider – Effect of – Whether dismissal without just cause and excuse
K Indhira Raja Kalandasamy v. Khas Cergas Sdn Bhd
(Sarojini Kandasamy) [2019] 1 ILR 23

Retrenchment – Redundancy – Whether the claimants’ positions had become redundant – Factors to consider – Evidence adduced – Effect of – Evaluation of the evidence – Whether an actual redundancy situation had existed – Company’s actions towards them – Whether it had been hasty – Whether the company’s failure to retrain the claimants and follow the LIFO principle had breached the provisions of the Code of Conduct for Industrial Harmony – Effect of – Whether dismissals without just cause and excuse
Nurul Najmi Radzuan & Ors v. T-Systems Malaysia Sdn Bhd
(Bernard John Kanny) [2019] 1 ILR 108

Retrenchment – Reorganisation – Whether the company had carried out a reorganisation exercise – Whether it had given any reason and proof for the so-called reorganisation exercise – Evidence adduced – Effect of – Claimants not warned of their redundancy – Effect of – Whether the company had exercised its managerial powers bona fide – Whether its actions towards the claimants had deprived the latter of their fundamental right to earn a livelihood and had constituted an unfair labour practice
Nurul Najmi Radzuan & Ors v. T-Systems Malaysia Sdn Bhd
(Bernard John Kanny) [2019] 1 ILR 108

DOMESTIC INQUIRY

Absence of – Whether the company’s failure to hold a DI had been an aberration in law and practice – Whether the claimant had been denied natural justice – Factors to consider – Effect of
Thamotharan Ramasanderan v. UMW Toyota Motor Sdn Bhd
(Yong Soon Ching) [2019] 1 ILR 7

Procedural impropriety – Whether the claimant had been “imposed” upon to accept the charge against him – Factors to consider – Evidence adduced – Effect of – Whether the DI had been in breach of the rules of natural justice – Whether it had been safe to rely upon
Lamjin Atoh v. Sabah Learning Centre, Open University Malaysia (OUM)
(Duncan Sikodol) [2019] 1 ILR 84

Procedural impropriety – Whether the DI held by the company had erred in its findings as it had dealt with charges in relation to a separate company – Factors to consider – Evidence adduced – Effect of
Tan Choon Moi v. Sapatanian Sdn Bhd
(Duncan Sikodol) [2019] 1 ILR 71

EVIDENCE

Adverse inference – Whether the company’s failure to call Dr. Sayyid Shah had raised an adverse inference against it – Factors to consider – Effect of – Evidence Act 1950, s. 114(g)
K Indhira Raja Kalandasamy v. Khas Cergas Sdn Bhd
(Sarojini Kandasamy) [2019] 1 ILR 23

Documentary evidence – Police reports and SDs submitted by the company – Whether these documents had been within the contemplation of the company when the claimant had been terminated – Evidence adduced – Effect of – Whether these documents had raised concerns and had a nexus to the claimant’s case – Whether it had been an attempt by the company to bolster its case against him
K Indhira Raja Kalandasamy v. Khas Cergas Sdn Bhd
(Sarojini Kandasamy) [2019] 1 ILR 23

Documentary evidence – Whether the claimant had been SISB’s employee – Factors to consider – Evidence adduced – Effect of – Whether she had dishonestly and/or unlawfully received salary from it
Tan Choon Moi v. Sapatanian Sdn Bhd
(Duncan Sikodol) [2019] 1 ILR 71

Documentary evidence – Whether the company’s actions of adducing fresh evidence after the conclusion of the hearing should be allowed – Factors to consider – Whether the prejudicial effect of such evidence had outweighed its probative value
K Indhira Raja Kalandasamy v. Khas Cergas Sdn Bhd
(Sarojini Kandasamy) [2019] 1 ILR 23

INDUSTRIAL COURT

Jurisdiction – Whether the Court had threshold jurisdiction to hear the claim – Whether the claimant had filed her representation to IRD within the mandatory prescribed period in the IRA – Factors to consider – Evaluation of case law – Effect of – Whether the matter ought to be struck off for want of jurisdiction – Industrial Relations Act 1967, s. 20(1A)
Naga Eshwary Nadarajah v. AIG Shared Services (M) Sdn Bhd
(Paramalingam J Doraisamy) [2019] 1 ILR 99

Procedure – Action – Claimant and company executing a Deed of Settlement pursuant to a civil claim in the Civil Court – Whether it had precluded the claimant from bringing this action against the company – Factors to consider – Evidence adduced – Effect of
K Indhira Raja Kalandasamy v. Khas Cergas Sdn Bhd
(Sarojini Kandasamy) [2019] 1 ILR 23

Procedure – Action – Striking out – Respondent company orally applying to strike out the CA entered into by it, after the completion of a successful mediation – Whether its application should be allowed – Factors to consider – Evidence adduced – Effect of
Lam Kor Sin v. Globalgroup Asia Pacific Sdn Bhd & Anor
(P Iruthayaraj D Pappusamy) [2019] 1 ILR 1

Procedure – Action – Striking out – Whether the company’s striking out application ought to be allowed – Factors to consider – Effect of – Company delayed in filing the application for more than eight months after matter set down for hearing – Whether the delay ought to be held against it – Industrial Relations Act 1967, ss. 29(fa) and (g)
Naga Eshwary Nadarajah v. AIG Shared Services (M) Sdn Bhd
(Paramalingam J Doraisamy) [2019] 1 ILR 99

Procedure – Action – Whether the IC ought to award costs – Factors to consider – Effect of – Actions of the claimant’s counsel – Whether personal costs ought to be made against her – Industrial Relations Regulations 1967, reg. 5
Athanasius Allapan Anthong v. Myteksi Sdn Bhd
(Rajeswari Karupiah) [2019] 1 ILR 66

Procedure – Action – Whether the union had the locus standi to represent UW2 to UW5 – Factors to consider – Effect of – Whether this case ought to be dismissed
Persatuan Kebangsaan Pekerja-Pekerja Bank v. Standard Chartered Bank Malaysia Berhad
(Jalaldin Hussain) [2019] 1 ILR 158

Remedies – Compensation – Determination of – Whether claimants must take reasonable steps to mitigate their losses post-dismissal – Spirit and intent of para. 3 of the Second Schedule of the Industrial Relations Act 1967 – Industrial Relations Act 1967, para. 3 of the Second Schedule
Nurul Najmi Radzuan & Ors v. T-Systems Malaysia Sdn Bhd
(Bernard John Kanny) [2019] 1 ILR 108

Remedies – Punishment – Claimant admitting to the misconduct – Whether the punishment of dismissal imposed on him had been too harsh under the circumstances – Factors to consider – Effect of – Whether the company had taken all relevant matters into consideration before imposing the punishment of dismissal on him – Evidence adduced – Effect of
Abdul Azis Isa v. Yeo Hiap Seng (Malaysia) Berhad
(Rajendran Nayagam) [2019] 1 ILR 193

TRADE DISPUTE

Collective Agreement – Terms and conditions of service – Bank practising a zero incentive and one customer complaint practice – Whether it had constituted an unfair labour practice or been a form of discrimination – Factors to consider – Evidence adduced – Effect of
Persatuan Kebangsaan Pekerja-Pekerja Bank v. Standard Chartered Bank Malaysia Berhad
(Jalaldin Hussain) [2019] 1 ILR 158

Collective Agreement – Terms and conditions of service – Whether UW2 to UW5 had been members of the union – Factors to consider – Evidence adduced – Effect of – Perusal of the union’s constitution and rules – Whether the bank had practiced union busting on them
Persatuan Kebangsaan Pekerja-Pekerja Bank v. Standard Chartered Bank Malaysia Berhad
(Jalaldin Hussain) [2019] 1 ILR 158