LATEST CASES (ILR Issue 02 of 2019)

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review – Certiorari – Application to quash award of Industrial Court ('IC') – Ministerial reference under s. 26(2) of Industrial Relations Act 1967 ('IRA') – Whether reference arose out of trade dispute between Union and company – Whether IC adjudicated Ministerial reference as reference under s. 20(3) of IRA – Whether IC committed jurisdictional error in treating case as wrongful dismissal simpliciter – Whether IC misapplied principles of law
Sri Ganeson Angamuthu v. Anglo-Eastern Plantations (M) Sdn Bhd & Anor
(Su Geok Yiam J) [2019] 1 ILR 249

DISMISSAL

Absenteeism – Whether the claimant had been absent without leave on two consecutive days – Factors to consider – Evidence adduced – Effect of – Claimant's explanations – Whether acceptable – Whether the charge had been proven by the company against him – Company's actions – What it had shown – Whether his dismissal had been with just cause and excuse
Bat Rayada A Khamid v. Eighty Nine Machinery Trading Sdn Bhd
(Rosenani Abd Rahman) [2019] 1 ILR 362

Breach of company rules and policies – Theft – Whether proven by the company – Factors to consider – Evidence adduced – Effect of – Whether it had justified the claimant's dismissal – Claimant's defence – Whether it had been plausible – What the company should have done – Whether dismissal without just cause and excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Kalaivanan Mannikam v. Malaysian Airlines
(Anna Ng Fui Choo) [2019] 1 ILR 348

Constructive dismissal – Salary – Claimant not given a salary increment and bonus – Reasons for the same – Whether he had been performing poorly for that year – Evidence adduced – Evaluation of – Effect of – Company's actions towards him – Whether reasonable – Whether it had amounted to a fundamental breach which had gone to the root of his contract of employment – Whether it had justified him walking out of his employment and claiming constructive dismissal
Hamdan Rasid Hj A Manan v. Telekom Malaysia Berhad
(Paramalingam J Doraisamy) [2019] 1 ILR 325

Constructive dismissal – Salary – Claimant not given a salary increment and bonus due to his poor performance – Whether he had been fairly assessed – Factors to consider – Evidence adduced – Effect of – Company's actions towards him – Whether reasonable – Whether it had breached the fundamental terms of his employment contract
Hamdan Rasid Hj A Manan v. Telekom Malaysia Berhad
(Paramalingam J Doraisamy) [2019] 1 ILR 325

Constructive dismissal – Whether the company had disclosed private and confidential information to third parties without his permission, in contravention of the Personal Data Protection Act 2010 – Factors to consider – Effect of – Whether it had constituted a fundamental breach of his employment contract
Hamdan Rasid Hj A Manan v. Telekom Malaysia Berhad
(Paramalingam J Doraisamy) [2019] 1 ILR 325

Misconduct – Whether the claimant had committed misconduct in relation to carrying out his duties in the company – Factors to consider – Effect of – His explanations for the same – Whether acceptable – Whether misconduct proven by the company – Whether the company had been justified in dismissing him
Gurcharan Singh Melkha Singh v. Sixfingers Dot Com Sdn Bhd
(Paramalingam J Doraisamy) [2019] 1 ILR 367

Misconduct – Whether the claimant had hired foreign workers without permits – Evidence adduced – Effect of – Whether it had been considered serious misconduct – His explanations – Whether could be accepted – Position held by the claimant in the company – His duties towards the company – What his conduct had shown – Whether he had exposed the company to potential criminal prosecution by flouting the local laws – Whether his conduct had justified his dismissal – Factors to consider – Effect of – Whether dismissal with just cause and excuse – Immigration Act 1959/63, s. 55B
Gurcharan Singh Melkha Singh v. Sixfingers Dot Com Sdn Bhd
(Paramalingam J Doraisamy) [2019] 1 ILR 367

Retrenchment – Redundancy – Claimant offered VSS – Whether mutual termination had taken place upon her acceptance of it – Factors to consider – Evaluation of the case laws – Effect of
Suseela Devi Balakrishnan v. INTI International College Kuala Lumpur Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 1 ILR 421

Retrenchment – Redundancy – Claimant terminated based on VSS – Whether the VSS had been genuine and voluntary – 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)
Suseela Devi Balakrishnan v. INTI International College Kuala Lumpur Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 1 ILR 421

Retrenchment – Redundancy – Whether the claimant's acceptance of retrenchment benefits had precluded or estopped her from contending that her dismissal had been unlawful – Factors to consider – Evidence adduced – Effect of – Whether she had accepted the VSS voluntarily – Whether she had been dismissed by the company – Whether dismissal without just cause and excuse
Suseela Devi Balakrishnan v. INTI International College Kuala Lumpur Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 1 ILR 421

Retrenchment – Redundancy – Whether the claimant's position 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 her – Whether it had been arbitrary and unfair – Whether the company had acted bona fide – Effect of – Whether dismissal without just cause and excuse
Gowry Prabagari Elankoovan v. Giant Management Services Sdn Bhd (Global Modern International School)
(Augustine Anthony) [2019] 1 ILR 388

Retrenchment – Redundancy – Whether the claimant's position had become redundant – Whether it had been a bona fide exercise of management's prerogative – Factors to consider – Evidence adduced – Effect of – Company's actions towards her – What it had shown – Whether she had been dismissed – Whether dismissal without just cause and excuse
Suseela Devi Balakrishnan v. INTI International College Kuala Lumpur Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 1 ILR 421

EVIDENCE

Burden of proof – Whether discharged by the claimant in proving constructive dismissal – Effect of
Hamdan Rasid Hj A Manan v. Telekom Malaysia Berhad
(Paramalingam J Doraisamy) [2019] 1 ILR 325

Documentary evidence – Determination of who had been the claimant's employer – Factors to consider – Evidence adduced – Effect of
Kiron Kumar George Manuel v. Akubekam (M) Sdn Bhd
(Jalaldin Hussain) [2019] 1 ILR 398

Documentary evidence – Whether he had been given a reasonable time to respond to the show cause letter – Factors to consider – Effect of – Company's conduct towards him – What it had shown
Gurcharan Singh Melkha Singh v. Sixfingers Dot Com Sdn Bhd
(Paramalingam J Doraisamy) [2019] 1 ILR 367

Documentary evidence – Whether the claimant had been in the employment of the company – Factors to consider – Evidence adduced – Effect of – Whether he had received salary and benefits from it
Kiron Kumar George Manuel v. Akubekam (M) Sdn Bhd
(Jalaldin Hussain) [2019] 1 ILR 398

Documentary evidence – Witness – Conflicting evidence – Material contradictions in the date the claimant had been allegedly employed in his letter to JPP, his pleadings and his witness statement – Effect of – What it had shown
Kiron Kumar George Manuel v. Akubekam (M) Sdn Bhd
(Jalaldin Hussain) [2019] 1 ILR 398

INDUSTRIAL COURT

Procedure – Action – Whether the claimant had brought the case correctly against the company – Factors to consider – Company's actions – Effect of
Kalaivanan Mannikam v. Malaysian Airlines
(Anna Ng Fui Choo) [2019] 1 ILR 348

Remedies – Compensation in lieu of reinstatement – Whether the claimant had been entitled to it – Her period of service in the company – Effect of
Gowry Prabagari Elankoovan v. Giant Management Services Sdn Bhd (Global Modern International School)
(Augustine Anthony) [2019] 1 ILR 388

LABOUR LAW

Employment – Employee – Employee found guilty of charges of misconduct – Punishment of demotion and reduction in salary – Whether punishment of demotion provided for in contract of employment – Whether employer could rely on statutory power under s. 14 of Employment Act 1955 for downgrading of employee – Whether demotion and reduction in salary amounted to double punishment – Whether constituted unfair labour practice
Sri Ganeson Angamuthu v. Anglo-Eastern Plantations (M) Sdn Bhd & Anor
(Su Geok Yiam J) [2019] 1 ILR 249

Industrial Court – Award – Application to quash award of Industrial Court ('IC') – Ministerial reference under s. 26(2) of Industrial Relations Act 1967 ('IRA') – Whether reference arose out of trade dispute between Union and company – Whether IC adjudicated Ministerial reference as reference under s. 20(3) of IRA – Whether IC committed jurisdictional error in treating case as wrongful dismissal simpliciter – Whether IC misapplied principles of law
Sri Ganeson Angamuthu v. Anglo-Eastern Plantations (M) Sdn Bhd & Anor
(Su Geok Yiam J) [2019] 1 ILR 249

Wages – Minimum wages – Claim for – Whether employees entitled to unpaid minimum wages – Whether mandatory to provide minimum wages – Whether basic wages differ from commission and allowance – Whether employees agreed to change of basic wages to allowance – Whether employer unilaterally made decision without consensus of employees – Whether employment terms in compliance with Minimum Wages Order 2012 – National Wages Consultative Council Act 2011, ss. 2, 23(1) & 24(2) – Minimum Wages Order 2012, O. 4 & O. 6
Syarikat Logistik Petikemas Sdn Bhd v. Masri Halim & Ors And Other Appeals
(Zalita Zaidan JC) [2019] 1 ILR 294

INDEKS PERKARA

KESATUAN SEKERJA

Sama ada syarikat responden telah melanggar peruntukan-peruntukan ss. 4 dan 5 Akta Perhubungan Perusahaan 1967 – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada permohonan pihak kesatuan harus dibenarkan – Akta Perhubungan Perusahaan 1967, ss. 4, 5 dan 8(2A)
Kesatuan Kakitangan Akademik KYP Education Sdn Bhd lwn. KYP Education Sdn Bhd
(Eddie Yeo Soon Chye) [2019] 1 ILR 312

KETERANGAN

Keterangan dokumentari – Sama ada UB1 ms. 31 dan 32 dan Pernyataan Kes perenggan 7.13 dan 7.14 harus dikeluarkan (expunge) – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Akta Perhubungan Perusahaan 1967, s. 54(1) dan (3)
Kesatuan Kakitangan Akademik KYP Education Sdn Bhd lwn. KYP Education Sdn Bhd
(Eddie Yeo Soon Chye) [2019] 1 ILR 312