LATEST CASES (ILR Issue 4 of 2017)

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Proceedings - Appeal for leave to Federal Court against Court of Appeal's decision allowing application for judicial review - Royal Malaysian Navy - Termination from service under Queen's Regulations for Royal Navy Revised 1967 (QRRN) - Whether QRRN could be relied upon for termination of non-commissioned servicemen - Whether QRRN saved when Navy Ordinance 1958 repealed by Armed Forces Act 1972 - Whether any new regulations to provide for termination of servicemen in place of provisions in QRRN - Interpretation of s. 217(2) of Armed Forces Act 1972 - Intention of Parliament - Whether continued operation of QRRN prejudicially affected - Whether QRRN's continued application preserved by ss. 30(2)(a)(ii) & 33 of Interpretation Acts 1948 and 1967 - Whether termination under QRRN lawful
Panglima Tentera Laut Diraja Malaysia & Ors v. Simathari Somenaidu
(Zulkefli Ahmad Makinuddin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Ramly Ali FCJ, Zaharah Ibrahim FCJ & Balia Yusof Wahi JCA) [2017] 2 ILR 1

Natural justice - Breach - Dismissal - Act of Lembaga Tatatertib Suruhanjaya Perkhidmatan Awam Negeri Selangor via letter informing plaintiff of his dismissal and cancellation of emolument rights - Whether done in cavalier manner and prejudicial to plaintiff - Whether reasonable and in accordance with principles of natural justice - Whether relevant provisions infringed - Whether decision invalid, void and a nullity
Saiful Nizam Adnan v. Jabatan Kerja Raya Negeri Selangor & Ors
(Gunalan Muniandy JC) [2017] 2 ILR 21

CONSTITUTIONAL LAW

Public servants - Dismissal - Natural justice - Whether breached - Act of Lembaga Tatatertib Suruhanjaya Perkhidmatan Awam Negeri Selangor via letter informing plaintiff of his dismissal and cancellation of emolument rights - Whether done in cavalier manner and prejudicial to plaintiff - Whether reasonable and in accordance with principles of natural justice - Whether relevant provisions infringed - Whether decision invalid, void and a nullity
Saiful Nizam Adnan v. Jabatan Kerja Raya Negeri Selangor & Ors
(Gunalan Muniandy JC) [2017] 2 ILR 21

CONTRACT OF EMPLOYMENT

Terms and conditions - Notice of termination - Absence of - Whether the claimants had been summarily dismissed - Evidence adduced - Factors to consider - Effect of - Whether termination had been justified considering all the circumstances of the case - Claimants' misconduct involving issues of honesty and integrity
Chai Kian Huat & Anor v. DS Albedo Sdn Bhd
(Jamil Aripin) [2017] 2 ILR 110

DISMISSAL

Absenteeism - Whether the claimant had been absent from work without leave - Evidence adduced - Effect of - Claimant's explanations - Whether acceptable - Whether the charge had been proven by the union against him
Rajendra Parshad BH Sharma v. Kesatuan Kebangsaan Pekerja-Pekerja Perdagangan
(Eddie Yeo Soon Chye) [2017] 2 ILR 77

Breach of company rules and policies - Bribery - Acceptance of - Whether the claimant had demanded and had been taking bribes from the company's contractor - Evidence adduced - Effect of - Whether the charge had been proven by the company - Claimant's defence - Whether acceptable - What the company had to prove - Whether it had had reasonable grounds for believing that the claimant had taken the monies - Evaluation of the evidence adduced - Effect of - Whether the company's actions had been reasonable - Factors to consider - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Azman Mohamad v. Oriental Summit Industries Sdn Bhd
(Andersen Ong Wai Leong) [2017] 2 ILR 138

Breach of company rules and policies - Gambling - Whether the claimants had been gambling on company premises - Factors to consider - Evidence adduced - Effect of - Claimants' defence and their actions - Whether supported by any evidence - Whether could be accepted - Whether the charge had been proven by the company against them - Whether the company had acted reasonably in dismissing them - Whether dismissals without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Adrian Samuel Labo & Ors v. Malaysian Airline System Berhad
(Ani Ak Solep) [2017] 2 ILR 91

Breach of company rules and policies - Misappropriation of company funds - What the company had to prove - Whether it had reasonable grounds for believing that the claimants had taken the monies - Evaluation of the evidence adduced - Effect of - Whether the company's actions had been reasonable - Whether the company had acted hastily in dismissing them - Factors to consider - Whether dismissals without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Chai Kian Huat & Anor v. DS Albedo Sdn Bhd
(Jamil Aripin) [2017] 2 ILR 110

Breach of company rules and policies - Misappropriation of company funds - Whether proven by the company - Factors to consider - Effect of - Whether it had been a serious misconduct - Whether the claimants had been dismissed - Whether their dismissals had been justified - Whether dismissals without just cause and excuse
Chai Kian Huat & Anor v. DS Albedo Sdn Bhd
(Jamil Aripin) [2017] 2 ILR 110

Breach of company rules and policies - Negligence - Claimant failing to follow the practices and procedures of the party joined - Position of the claimant in the party joined and his seniority in it - Effect of - What his responsibilities had been in that position - Whether he had failed to discharge it - Evidence adduced - Effect of - What he should have done - Whether the charge had been proven against him - Whether his dismissal had been justified
Hamsa Budin v. Sarawak Energy Berhad & Anor
(Ani Ak Solep) [2017] 2 ILR 32

Breach of company rules and policies - Negligence - Whether the claimant had failed to attend to Critical Customer Reports - Evidence adduced - Evaluation of - Effect of - Whether the charge had been proven by the company - Claimant's defence - Whether acceptable - Factors to consider - Claimant's length of service in the company - Company's actions towards him - Whether there had been a delay on the part of the company in taking action against him - Whether the company's actions against him had been reasonable - Company not suffering damage to its image or reputation - What that had shown - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mohamad Rafie Mohd Razi v. Hume Concrete Sdn Bhd
(Anna Ng Fui Choo) [2017] 2 ILR 161

Breach of company rules and policies - Negligence - Whether the claimant had failed to follow the instructions of COW2 and had failed to disconnect the accounts of, inter alia, Jimang AK Lebeng's and Rosmawi Dawood - Evaluation of the evidence adduced - Claimant's defence - Whether acceptable - Whether he had been aware of the correct procedure to follow - Whether verbal instructions could be given to him - Whether COW2 had verbally instructed him - Evidence adduced - Effect of - Whether the charge had been proven against him - Whether his dismissal had been justified - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Hamsa Budin v. Sarawak Energy Berhad & Anor
(Ani Ak Solep) [2017] 2 ILR 32

Breach of company rules and policies - Negligence - Whether the claimant had issued bills for the consumption of electricity after disconnecting the accounts - Factors to consider - Evidence adduced - Effect of - Whether charge proven by the joined party - Claimant's explanations - Whether acceptable - Claimant's position in the joined party - What he should have done - Whether his actions had justified his dismissal - Whether dismissal without just cause and excuse
Hamsa Budin v. Sarawak Energy Berhad & Anor
(Ani Ak Solep) [2017] 2 ILR 32

Breach of company rules and policies - Negligence - Whether the claimant's misconduct had created a huge risk and had posed a danger to the public and the customers of the party joined - What his actions had opened up the joined party to - Claimant serving as a Clerk in Charge for 28 years with no incident of disciplinary proceedings prior to this - Whether his failure to follow the instructions of COW2 in this case, had compromised the safety of the public, which in turn had justified his dismissal
Hamsa Budin v. Sarawak Energy Berhad & Anor
(Ani Ak Solep) [2017] 2 ILR 32

Fraud/Dishonesty - Whether the claimant had been involved in private financial dealings with the occupants of the union's building - Evidence adduced - Effect of - His explanations for the same - Whether could be accepted - Whether this allegation had been proven by the union against him - Whether the union had been justified in dismissing him based on this ground - Factors to consider - Effect of - Whether it had affected his honesty and integrity - Whether his dismissal had been without just cause and excuse
Rajendra Parshad BH Sharma v. Kesatuan Kebangsaan Pekerja-Pekerja Perdagangan
(Eddie Yeo Soon Chye) [2017] 2 ILR 77

Insubordination - Claimant walking away from the area after having a misunderstanding with COW1 - Whether the claimant had acted in an insubordinate manner towards his superior - Evidence adduced - Effect of - Company's actions thereafter - What it had shown - Whether the claimant had been dismissed by the company - Whether his dismissal had been justified under the circumstances - Whether dismissal without just cause and excuse
Azree Ahmad v. Caravan Serai Sdn Bhd
(Mohd Dusuki Mokhtar) [2017] 2 ILR 149

Insubordination - Whether the claimant had concluded the Collective Agreements with the companies without the prior approval of the union and passed disrespectful and disparaging remarks against the union, whilst under investigation for his financial dealings with the building occupants - Factors to consider - Evidence adduced - Effect of - Whether this charge had been proven by the union against him - Whether it had justified his dismissal - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Rajendra Parshad BH Sharma v. Kesatuan Kebangsaan Pekerja-Pekerja Perdagangan
(Eddie Yeo Soon Chye) [2017] 2 ILR 77

Performance - Unsatisfactory performance - Whether the claimant had failed to secure new membership for the union and implement new plans to secure the same - Evidence adduced - Effect of - Whether this charge had been proven against him
Rajendra Parshad BH Sharma v. Kesatuan Kebangsaan Pekerja-Pekerja Perdagangan
(Eddie Yeo Soon Chye) [2017] 2 ILR 77

DOMESTIC INQUIRY

Absence of - Whether it had been fatal to the company's case - Factors to consider - Whether the claimants had known why they had been dismissed - Whether they had been given an opportunity to be heard - Factors to consider - Evidence adduced - Effect of
Chai Kian Huat & Anor v. DS Albedo Sdn Bhd
(Jamil Aripin) [2017] 2 ILR 110

EVIDENCE

Documentary evidence - Findings of the DI - Whether valid - Factors to consider - Whether the rules of natural justice had been complied with - Effect of
Azman Mohamad v. Oriental Summit Industries Sdn Bhd
(Andersen Ong Wai Leong) [2017] 2 ILR 138

Documentary evidence - Notes of the DI - Whether reliable - Factors to consider - Effect of - Whether a mere irregularity curable by de novo proceedings
Mohamad Rafie Mohd Razi v. Hume Concrete Sdn Bhd
(Anna Ng Fui Choo) [2017] 2 ILR 161

Standard of proof - Misconduct of a criminal nature suspected or gross misconduct bordering on criminality alleged - What standard of proof is required to be proven - Whether it had been sufficient for the employer to have acted reasonably in dismissing the employee - Factors to consider - Effect of
Azman Mohamad v. Oriental Summit Industries Sdn Bhd
(Andersen Ong Wai Leong) [2017] 2 ILR 138

Witness - Conflicting evidence - Claimants giving conflicting evidence - Whether it had affected their credibility - Factors to consider
Chai Kian Huat & Anor v. DS Albedo Sdn Bhd
(Jamil Aripin) [2017] 2 ILR 110

Witness - Conflicting evidence - Two versions of what had happened in the meeting from the claimants and the company - Whose version had been more probable - Factors to consider - Effect of
Chai Kian Huat & Anor v. DS Albedo Sdn Bhd
(Jamil Aripin) [2017] 2 ILR 110

INDUSTRIAL COURT

Procedure - Action - Claimant seeking to lift the corporate veil of the party joined - Whether it ought to be allowed - Factors to consider - Effect of - Whether the fact that the company and the party joined had had the same registered address had made the latter the alter ego of the former
Hamsa Budin v. Sarawak Energy Berhad & Anor
(Ani Ak Solep) [2017] 2 ILR 32

Procedure - Action - Ministerial reference brought against the company - Whether the company had been the claimant's employer - Factors to consider - Evidence adduced - Effect of
Hamsa Budin v. Sarawak Energy Berhad & Anor
(Ani Ak Solep) [2017] 2 ILR 32

Procedure - Action - No ministerial reference brought against the party joined - Whether the party joined had been the claimant's employer - Factors to consider - Evidence adduced - Effect of - Whether the claimant's action against the party joined ought to be struck off - Factors to consider - Industrial Relations Act 1967, ss. 20(1) & 30(5A)
Hamsa Budin v. Sarawak Energy Berhad & Anor
(Ani Ak Solep) [2017] 2 ILR 32

STATUTORY INTERPRETATION

Construction of statutes - Interpretation of - Armed Forces Act 1972, s. 217(2) - Omission of words 'or applied by' - Whether detracted from clear intention of Parliament to 'save' subsidiary legislation - Interpretation Acts 1948 and 1967, ss. 30(2)(a)(ii) & 33
Panglima Tentera Laut Diraja Malaysia & Ors v. Simathari Somenaidu
(Zulkefli Ahmad Makinuddin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Ramly Ali FCJ, Zaharah Ibrahim FCJ & Balia Yusof Wahi JCA) [2017] 2 ILR 1

TRADE DISPUTE

Collective Agreement - Terms and conditions of service - Article on annual increment - Its intention - What would be a fair and equitable percentage to award - Factors to consider - Effect of - Which approach would be adopted - Reasons for the same - Whether the principle of rate for job had applied - What it had entailed
Kesatuan Pegawai-Pegawai Standard Chartered Bank Malaysia Berhad, Semenanjung Malaysia v. Standard Chartered Bank Malaysia Berhad
(Mary Shakila G Azariah) [2017] 2 ILR 176

Collective Agreement - Terms and conditions of service - Article on annual leave - Whether ought to be revised for new employees - Factors to take into account effect - Whether the status quo should be maintained
Kesatuan Pegawai-Pegawai Standard Chartered Bank Malaysia Berhad, Semenanjung Malaysia v. Standard Chartered Bank Malaysia Berhad
(Mary Shakila G Azariah) [2017] 2 ILR 176

Collective Agreement - Terms and conditions of service - Article on bonus payments - Whether it had been performance based - Factors to consider - Evidence adduced - Effect of - Perusal and evaluation of art. 39 of the CA
Kesatuan Pekerja-Pekerja Parkroyal Kuala Lumpur v. Grand Elite Sdn Bhd (Parkroyal Kuala Lumpur)
(Eddie Yeo Soon Chye) [2017] 2 ILR 130

Collective Agreement - Terms and conditions of service - Article on duration and effective date - The period that the CA would remain in force - Factors to consider - Provisions of the law - Industrial Relations Act 1967, s. 30(7)
Kesatuan Pegawai-Pegawai Standard Chartered Bank Malaysia Berhad, Semenanjung Malaysia v. Standard Chartered Bank Malaysia Berhad
(Mary Shakila G Azariah) [2017] 2 ILR 176

Collective Agreement - Terms and conditions of service - Article on medical benefits for officer's family-outpatient or hospitalisation - Whether the union's request for an increase in the amount and coverage had any basis - Factors to consider - Evidence adduced - Effect of - Whether the status quo should be maintained
Kesatuan Pegawai-Pegawai Standard Chartered Bank Malaysia Berhad, Semenanjung Malaysia v. Standard Chartered Bank Malaysia Berhad
(Mary Shakila G Azariah) [2017] 2 ILR 176

Collective Agreement - Terms and conditions of service - Article on rates of pay - Reasons for an increase - Whether there had been a need for an increase - Factors to consider - Effect of - What would be a fair increase - What needed to be considered - Effect of - Whether the increase had to commensurate with the value of the job - Evidence adduced - Effect of - Implementation date - Industrial Relations Act 1967, s. 30(7)
Kesatuan Pegawai-Pegawai Standard Chartered Bank Malaysia Berhad, Semenanjung Malaysia v. Standard Chartered Bank Malaysia Berhad
(Mary Shakila G Azariah) [2017] 2 ILR 176

Collective Agreement - Terms and conditions of service - Article on salary adjustment - What needed to be taken into account - Factors to consider - Effect of - What this article had been meant for - Whether the bank's financial capacity to pay had been a material consideration
Kesatuan Pegawai-Pegawai Standard Chartered Bank Malaysia Berhad, Semenanjung Malaysia v. Standard Chartered Bank Malaysia Berhad
(Mary Shakila G Azariah) [2017] 2 ILR 176

Collective Agreement - Terms and conditions of service - Company ceasing its cigarette ration but extending it to the employees on a personal-to-holder basis - Whether proven by the company - Evidence adduced - Union not rebutting - Effect of - Whether the principle of approbation and reprobation had applied - Factors to consider - Position of the law - Effect of - Company's actions in this matter - What it had shown - Effect of
Kesatuan Kebangsaan Pekerja-Pekerja Dalam Industri Tembakau (National Union Of Tobacco Industry Workers) v. Tobacco Importers And Manufacturers Sdn Bhd
(Siti Salwa Musa) [2017] 2 ILR 64

Collective Agreement - Terms and conditions of service - Company's cigarette ration - Whether the union members had been entitled to it under the BAT/BATEU CA - Factors to consider - Effect of - Whether the BAT/BATEU CA had been void ab initio - Evidence adduced - Effect of
Kesatuan Kebangsaan Pekerja-Pekerja Dalam Industri Tembakau (National Union Of Tobacco Industry Workers) v. Tobacco Importers And Manufacturers Sdn Bhd
(Siti Salwa Musa) [2017] 2 ILR 64