LATEST CASES (ILR Issue 2 of 2020)

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review – Local authority – Dismissal from service – Failure of local authority to give reasonable opportunity to be heard – Whether clear breach of s. 16(4) of Local Government Act 1976 ('LGA') and reg. 29(1) of Public Officers (Conduct and Discipline) Municipal Council of the Province Wellesley Regulations 1995 ('1995 Regulations') – Whether right to be heard nullified by reg. 25(2)(a) of 1995 Regulations – Whether reg. 25(2)(a) in conflict with s. 16(4) of LGA – Whether employee denied procedural fairness provided under Federal Constitution – Whether mandatory for employee to be served with show cause notice – Whether reg. 25(2) of 1995 Regulations void and ultra vires s. 16(4) of LGA
Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v. Muziadi Mukhtar
(Azahar Mohamed CJ (Malaya), Alizatul Khair Osman, Mohd Zawawi Salleh, Idrus Harun & Nallini Pathmanathan FCJJ) [2020] 1 ILR 328

Local authority – Public officer – Dismissal – Public officer transferred to different department – Allegation that public officer raised matter of transfer to State Assemblyman who then brought up issue at sitting of State Legislative Assembly – Public officer found guilty of purporting to apply external influence to achieve personal aim – Public officer dismissed from service – Whether dismissal proper and valid – Whether reinstatement amenable to public officer – Whether principles in Mohd Ahmad v. Yang Dipertua Majlis Daerah Jempol, Negeri Sembilan & Anor applied to all cases – Whether there were exceptions to general rule – Specific Relief Act 1950, s. 20(1)(b) – Public Officers (Conduct and Disciplinary) Regulations 1993, reg. 4(2)(h)
Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v. Mohd Sobri Che Hassan
(Ahmad Maarop PCA, Zaharah Ibrahim CJ (Malaya), Azahar Mohamed, Alizatul Khair Osman & Rohana Yusuf FCJJ) [2020] 1 ILR 286

CONTRACT

Termination – Validity – Employment – Early release of employee – Whether terms of contract specified – Whether employee employed by two separate legal entities – Whether there was evidence of fraud or unconscionable conduct by employer warranting lifting of veil of incorporation – Whether contract lapsed by effluxion of time – Whether termination valid
AIMS Cyberjaya Sdn Bhd v. Ahmad Zahri Mirza Abdul Hamid
(Hamid Sultan Abu Backer, Badariah Sahamid, Mary Lim JJCA) [2020] 1 ILR 273

DISMISSAL

Absenteeism – Whether the claimant had been absent without reasonable excuse – Whether proven by the company against him – Evidence adduced – Effect of
Mohd Azam Abdul Malek v. Tropicana Golf & Country Resort Berhad
(Paramalingam J Doraisamy) [2020] 1 ILR 429

Breach of company rules and policies – Claimant complaining to the company's external vendor about the company's practices – Whether her actions had portrayed the company negatively – Factors to consider – Evidence adduced – Effect of – Whether the claimant had acted unprofessionally and had conducted herself in a manner that had been incompatible with the proper discharge of her duties to the company – Whether charge successfully proven by the company – Whether dismissal with just cause and excuse
Ng Seok May @ Angie Sabrina v. Maxis Broadband Sdn Bhd
(Anna Ng Fui Choo) [2020] 1 ILR 408

Breach of company rules and policies – Dishonesty – Whether the claimant had been involved in a dishonest act and had failed to report it – Payment of bribes – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether he had betrayed the trust and confidence reposed in him by the company – Whether it had constituted serious misconduct – Whether his dismissal had been justified – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mohd Azam Abdul Malek v. Tropicana Golf & Country Resort Berhad
(Paramalingam J Doraisamy) [2020] 1 ILR 429

Breach of company rules and policies – Negligence – Whether the claimant had lost the passports belonging to the foreign workers – Factors to consider – Evidence adduced – Effect of – Whether charge proven by the company – Whether it had been a serious misconduct – Whether his dismissal had been justified – Whether dismissal without just cause and excuse
Mohd Azam Abdul Malek v. Tropicana Golf & Country Resort Berhad
(Paramalingam J Doraisamy) [2020] 1 ILR 429

Constructive dismissal – Transfer – Whether the claimant's transfer order had been a fundamental breach of her contract of employment – Factors to consider – Terms of the transfer order – Effect of – Whether she had been constructively dismissed – Whether dismissal without just cause and excuse
Keh Soe Sian v. KTC Human Resource Consultants Sdn Bhd
(Noor Hayati Haji Mat) [2020] 1 ILR 385

Insubordination – Whether the claimant's e-mail trail had shown a consistent pattern of her being disrespectful, evasive, obstructive and insubordinate to COW3 – Factors to consider – Evidence adduced – Effect of – Whether insubordination had been successfully proven against her – Whether her dismissal had been justified under the circumstances – Whether dismissal without just cause and excuse
Ng Seok May @ Angie Sabrina v. Maxis Broadband Sdn Bhd
(Anna Ng Fui Choo) [2020] 1 ILR 408

Misconduct – Whether the claimant had been guilty of misconduct justifying her dismissal – Whether allegations successfully proven by the company against her – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether she had been given an opportunity to explain herself – Effect of – Whether she had been dismissed with just cause and excuse
Keh Soe Sian v. KTC Human Resource Consultants Sdn Bhd
(Noor Hayati Haji Mat) [2020] 1 ILR 385

Misconduct – Whether the claimant had posted negative comments and used unsavoury words against her superiors and colleagues on her FB account – Factors to consider – Evidence adduced – Effect of – Whether it had constituted major misconduct – Whether the misconduct had been proven by the company against her – Claimant's defence – Whether could be accepted – Whether the company had acted reasonably in dismissing her – Whether dismissal with just cause and excuse
Ng Seok May @ Angie Sabrina v. Maxis Broadband Sdn Bhd
(Anna Ng Fui Choo) [2020] 1 ILR 408

Performance – Poor performance – Whether the claimant had performed poorly – Factors to consider – Evidence adduced – Effect of – Whether the company had given him sufficient opportunity to improve – Whether he had availed himself to those opportunities – Whether the charge had been proven against him
Mohd Azam Abdul Malek v. Tropicana Golf & Country Resort Berhad
(Paramalingam J Doraisamy) [2020] 1 ILR 429

EVIDENCE

Admissibility – Whether the audio recording that had been secretly taped by the claimant ought to be allowed into evidence – Factors to consider – Effect of
Ng Seok May @ Angie Sabrina v. Maxis Broadband Sdn Bhd
(Anna Ng Fui Choo) [2020] 1 ILR 408

Documentary evidence – Whether the claimants had been workmen within the definition of the Industrial Relations Act – Factors to consider – Evidence adduced – Effect of – Evaluation of – What the intention of the parties had been – Conduct and actions of the claimants – What it had shown – Industrial Relations Act 1967, s. 2
Lin Kai Lam v. L & W Concrete Works Sdn Bhd & Another Case
(Andersen Ong Wai Leong) [2020] 1 ILR 399

Witness – Claimant giving three different versions of her defence on her FB postings – Whether she had been a credible and reliable witness – Factors to consider – Evidence adduced – Effect of
Ng Seok May @ Angie Sabrina v. Maxis Broadband Sdn Bhd
(Anna Ng Fui Choo) [2020] 1 ILR 408

INDUSTRIAL COURT

Procedure – Action – Whether the action brought by the claimants against the company had been an abuse of court process – Factors to consider – Evidence adduced – Effect of – Whether it had been a shareholders dispute disguised as a trade dispute – Whether it had been a trade dispute within the definition of the Industrial Relations Act – Factors to consider – Effect of
Lin Kai Lam v. L & W Concrete Works Sdn Bhd & Another Case
(Andersen Ong Wai Leong) [2020] 1 ILR 399

Remedies – Compensation – Determination of – Factors to consider – Effect of
Keh Soe Sian v. KTC Human Resource Consultants Sdn Bhd
(Noor Hayati Haji Mat) [2020] 1 ILR 385

LABOUR LAW

Employment – Dismissal – Dismissal of employee of local authority – Public officer transferred to different department – Allegation that public officer raised matter of transfer to State Assemblyman who then brought up issue at sitting of State Legislative Assembly – Public officer found guilty of purporting to apply external influence to achieve personal aim – Public officer dismissed from service – Whether dismissal proper and valid – Whether public officer on contractual basis – Whether holder of public office under art. 132 of Federal Constitution – Whether relationship between employer and employee governed by statute – Whether procedure of dismissal governed by public law and amenable to public law remedies – Whether there was right to be heard – Public Officers (Conduct and Disciplinary) Regulations 1993, reg. 4(2)(h)
Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v. Mohd Sobri Che Hassan
(Ahmad Maarop PCA, Zaharah Ibrahim CJ (Malaya), Azahar Mohamed, Alizatul Khair Osman & Rohana Yusuf FCJJ) [2020] 1 ILR 286

Employment – Termination – Early release of employee – Whether without just cause or excuse – Whether employee employed by two separate legal entities – Whether employed for fixed term contract or continuous employment – Whether terms of contract specified – Whether contract lapsed by effluxion of time – Whether termination valid
AIMS Cyberjaya Sdn Bhd v. Ahmad Zahri Mirza Abdul Hamid
(Hamid Sultan Abu Backer, Badariah Sahamid, Mary Lim JJCA) [2020] 1 ILR 273

STATUTORY INTERPRETATION

Construction of statutes – Rule of construction – Right to be heard – Conflict between reg. 25(2)(a) of Public Officers (Conduct and Discipline) Municipal Council of the Province Wellesley Regulations 1995 ('1995 Regulations') with s. 16(4) of Local Government Act 1976 ('LGA') and reg. 29(1) of 1995 Regulations – Whether subsidiary legislation could be inconsistent with or override Act of Parliament – Whether harmonious construction ought to be given to provisions – Whether reg. 25(2) of 1995 Regulations void and ultra vires s. 16(4) of LGA
Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v. Muziadi Mukhtar
(Azahar Mohamed CJ (Malaya), Alizatul Khair Osman, Mohd Zawawi Salleh, Idrus Harun & Nallini Pathmanathan FCJJ) [2020] 1 ILR 328

INDEKS PERKARA

KETERANGAN

Beban bukti – Sama ada YM berjaya membuktikan bahawa beliau telah dipaksa atau diugut oleh syarikat untuk meletak jawatan – Kesannya
Prema Latha S Kandasamy lwn. Wembley Academy Sdn Bhd
(Rasidah Haji Chik) [2020] 1 ILR 371

Saksi – Sama ada YM merupakan seorang saksi yang boleh dipercayai – Bagaimana keterangannya harus diambil kira
Prema Latha S Kandasamy lwn. Wembley Academy Sdn Bhd
(Rasidah Haji Chik) [2020] 1 ILR 371

KONTRAK PERKHIDMATAN

Terma dan syarat – Sama ada terdapat kesinambungan pekerjaan dari Metrix ke syarikat – Fakta-fakta yang harus diambil kira – Keterangan yang dikemukakan – Penilaiannya – Kesannya – Sama ada syarikat, melalui tindakannya, telah menganiaya YM – Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab
Mohd Azril Basha Abu Bakar lwn. My Global Ventures Sdn Bhd
(Noor Hayati Haji Mat) [2020] 1 ILR 362

MAHKAMAH PERUSAHAAN

Remedi – Gaji kebelakang – Sama ada YM berhak kepada bayaran 18 bulan – Faktor-faktor yang harus diambil kira – Kesannya – Akta Perhubungan Perusahaan 1967, Jadual Kedua
Mohd Azril Basha Abu Bakar lwn. My Global Ventures Sdn Bhd
(Noor Hayati Haji Mat) [2020] 1 ILR 362

Remedi – Pampasan galang ganti pengembalian ke jawatan semula – Sama ada YM berhak menerimanya – Tempoh perkhidmatan YM dengan syarikat
Mohd Azril Basha Abu Bakar lwn. My Global Ventures Sdn Bhd
(Noor Hayati Haji Mat) [2020] 1 ILR 362

PEMBUANGAN KERJA

Notis penamatan – Perletakan jawatan secara paksa – Sama ada YM telah dipaksa untuk meletak jawatan – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Penilaian keterangan – Kesannya – Tindakan yang diambil oleh YM semasa dan selepas meletak jawatan – Apa ia menunjukkan – Sama ada YM telah meletak jawatan secara sukarela
Prema Latha S Kandasamy lwn. Wembley Academy Sdn Bhd
(Rasidah Haji Chik) [2020] 1 ILR 371

Pekerja percubaan – Sama ada YM merupakan seorang pekerja percubaan ketika beliau dibuang kerja – Faktor-faktor yang harus diambil kira – Kesannya
Mohd Azril Basha Abu Bakar lwn. My Global Ventures Sdn Bhd
(Noor Hayati Haji Mat) [2020] 1 ILR 362