<< Back BULLETIN 6/2013

LATEST CASES (ILR Issue 5 of 2013)

SUBJECT INDEX

DISMISSAL

Breach of company rules and policies - Fraud/Dishonesty - Claimants accused of dishonest behaviour - Whether proven by the company - Evidence adduced - Evaluation of the evidence - Effect of - Company not suffering actual loss - Whether the company's documents could have been manipulated and their systems hacked into - Effect of - Education levels of the claimants - Whether the claimants had been accorded an opportunity to answer the case against them - Whether dismissal without just cause or excuse - Evidence Act 1950, s. 90A and Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ismail Md Ali & Ors v. Express Rail Link Sdn Bhd
(Anna Ng Fui Choo) [2013] 2 ILR 285 cljlaw labourlaw

Constructive dismissal - Benefits - Claimant not receiving overriding sales commission in her new job - Reasons for the same -Whether that had constituted a fundamental breach going to the root of her contract of employment - Job functions of the claimant in her new job - Effect of
Tan Hong Tyng v. Yun Nam Hair Sdn Bhd
(Jalaldin Hussain) [2013] 2 ILR 405 cljlaw labourlaw

Constructive dismissal - Benefits - Claimant unable to use the company car - Whether it had been a contractual entitlement - Contents of the claimant's contract of employment - Whether the company's failure to renew the road tax had amounted to a fundamental breach going to the root of the contract of employment - Evidence adduced - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Kumpulan SF Powertech Sdn Bhd v. M Marnokarrun D Maruthamuthu
(P Iruthayaraj D Pappusamy) [2013] 2 ILR 237 cljlaw labourlaw

Constructive dismissal - Benefits - EPF and income tax deductions - Company failing to remit despite claimant paying - Whether it had amounted to a breach of a fundamental term of the claimant's contract of employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Kumpulan SF Powertech Sdn Bhd v. M Marnokarrun D Maruthamuthu
(P Iruthayaraj D Pappusamy) [2013] 2 ILR 237 cljlaw labourlaw

Constructive dismissal - Benefits - Reimbursement of hospital bills - Whether the company had failed to fulfil - Evidence adduced - Whether sufficient to prove the allegation - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Kumpulan SF Powertech Sdn Bhd v. M Marnokarrun D Maruthamuthu
(P Iruthayaraj D Pappusamy) [2013] 2 ILR 237 cljlaw labourlaw

Constructive dismissal - Hours of work - Claimant requested to go on leave - Reasons for the same - Whether a fundamental breach going to the root of her contract of employment - Perusal of her terms of employment - Effect of - Claimant refusing to go on leave - Action taken by the company - Whether the company's actions had been justified - Claimant's behaviour - Whether it had been reasonable
Tan Hong Tyng v. Yun Nam Hair Sdn Bhd
(Jalaldin Hussain) [2013] 2 ILR 405 cljlaw labourlaw

Constructive dismissal - Hours of work - Whether the log-in and log-out books had been falsified - Evidence adduced - Whether sufficient to prove the allegation - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Kumpulan SF Powertech Sdn Bhd v. M Marnokarrun D Maruthamuthu
(P Iruthayaraj D Pappusamy) [2013] 2 ILR 237 cljlaw labourlaw

Constructive dismissal - Salary - Claimant's increment and bonus frozen for a year - Claimant's responsibilities - Whether he had been in breach of them - Whether he had been able to delegate his responsibilities - Effect of - Company issuing him a show cause letter - Whether the company's actions had been justified - Evidence adduced - Effect of
Mohamad Raafik Abdullah v. Beneton Management Sdn Bhd
(Eddie Yeo Soon Chye) [2013] 2 ILR 319 cljlaw labourlaw

Constructive dismissal - Salary - Deductions made - Claimant not notified beforehand - Whether a fundamental breach going to the root of the contract of employment - Effect of - What the company should have done - Whether dismissal without just cause or excuse
Kumpulan SF Powertech Sdn Bhd v. M Marnokarrun D Maruthamuthu
(P Iruthayaraj D Pappusamy) [2013] 2 ILR 237 cljlaw labourlaw

Constructive dismissal - Salary - Delay in the payment of the claimant's salaries - Reasons for the same - Whether the claimant had been singled out and victimised - Whether the claimant had been aware of the financial difficulties faced by the company - Evidence adduced - Evaluation of - Effect of - Whether dismissal without just cause or excuse
Kumpulan SF Powertech Sdn Bhd v. M Marnokarrun D Maruthamuthu
(P Iruthayaraj D Pappusamy) [2013] 2 ILR 237 cljlaw labourlaw

Constructive dismissal - Status - Change to the claimant's reporting line - Whether it had amounted to a demotion - Reasons for the change - Whether the claimant had been aware of the reasons - Evidence adduced - Evaluation of - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Kumpulan SF Powertech Sdn Bhd v. M Marnokarrun D Maruthamuthu
(P Iruthayaraj D Pappusamy) [2013] 2 ILR 237 cljlaw labourlaw

Constructive dismissal - Status - Claimant informed verbally of functions - Claimant not given copy of designation - Whether she had been aware of her functions in the new job - Seniority of claimant in her position - Whether she had been aware of what had been required of the job - Evidence adduced - Effect of - Whether failure to give her a copy of her designation had amounted to a fundamental breach going to the root of her contract of employment
Tan Hong Tyng v. Yun Nam Hair Sdn Bhd
(Jalaldin Hussain) [2013] 2 ILR 405 cljlaw labourlaw

Constructive dismissal - Status - Claimant not having same amount of staff to supervise in new job - Whether staff supervision had been a requirement in her contract of employment - Perusal of - Whether it had amounted to a demotion - What constituted demotion
Tan Hong Tyng v. Yun Nam Hair Sdn Bhd
(Jalaldin Hussain) [2013] 2 ILR 405 cljlaw labourlaw

Constructive dismissal - Status - Claimant requested to punch in and out of company - Reasons for the same - Whether she had been subject to the same requirements in her previous job - Whether it had been stipulated in her terms of employment - Perusal of - Whether it had amounted to a fundamental breach going to the root of her contract of employment
Tan Hong Tyng v. Yun Nam Hair Sdn Bhd
(Jalaldin Hussain) [2013] 2 ILR 405 cljlaw labourlaw

Constructive dismissal - Status - Whether the claimant had been reduced to the position of probationer in her new job - Factors to consider - Evaluation of the evidence - Effect of
Tan Hong Tyng v. Yun Nam Hair Sdn Bhd
(Jalaldin Hussain) [2013] 2 ILR 405 cljlaw labourlaw

Constructive dismissal - Transfer - Claimant transferred to HQ - Reasons for the same - Whether her consent had been required - Whether transfer had been a term of her conditions of employment - Perusal of the contract of employment - Effect of - Whether she had suffered any reduction in benefits - Reasons for the same - Whether she had been victimised - Factors to consider - Whether it had constituted a fundamental breach going to the root of her contract of employment
Tan Hong Tyng v. Yun Nam Hair Sdn Bhd
(Jalaldin Hussain) [2013] 2 ILR 405 cljlaw labourlaw

Constructive dismissal - Transfer - Claimant transferred to HQ - Reasons for the same - Whether it had been justified - Evidence adduced - Evaluation of - Whether the company had mala fide intent when transferring her - Factors to consider - Effect of
Tan Hong Tyng v. Yun Nam Hair Sdn Bhd
(Jalaldin Hussain) [2013] 2 ILR 405 cljlaw labourlaw

Constructive dismissal - Transfer - Claimant transferred to HQ - Whether the claimant had proven that it had amounted to the company displaying an intention to no longer to be bound by the contract of employment - Company consistently requesting the claimant to come back to work - Claimant refusing - What it had shown - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Tan Hong Tyng v. Yun Nam Hair Sdn Bhd
(Jalaldin Hussain) [2013] 2 ILR 405 cljlaw labourlaw

Constructive dismissal - Warning letter - Company issuing to the claimant - Whether it had amounted to a fundamental breach going to the root of his contract of employment - Reasons the warning letter had been issued - Whether the company's actions had been justified - Factors to consider - Effect of - Whether the company had displayed conduct showing that they no longer intended to be bound by the contract of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mohamad Raafik Abdullah v. Beneton Management Sdn Bhd
(Eddie Yeo Soon Chye) [2013] 2 ILR 319 cljlaw labourlaw

Constructive dismissal - Warning letter - Whether the warning letter had amounted to the company dismissing him - Evaluation of the evidence - Effect of
Mohamad Raafik Abdullah v. Beneton Management Sdn Bhd
(Eddie Yeo Soon Chye) [2013] 2 ILR 319 cljlaw labourlaw

Misconduct - Claimant acting in excess of his authority - Whether proven by the company - Evidence adduced - Effect of - Defence put forth by the claimant - Whether acceptable - Position of claimant in the company - Seriousness of the claimant's actions - Whether it had constituted a breach of the fiduciary relationship between him and the company - Whether the company had been justified in dismissing the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ab Aziz Hj Mohamed v. KUB Telekomunikasi Sdn Bhd
(Eddie Yeo Soon Chye) [2013] 2 ILR 261 cljlaw labourlaw

Notice of termination - Forced resignation - Whether the claimant had been forced to resign - Evidence adduced - Evaluation of - Effect of - Whether proven by the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Nor Saifuddin Nor Azadin v. Zama Adjusters & Investigators Sdn Bhd
(Kamaruzaman Ab Jalil) [2013] 2 ILR 275 cljlaw labourlaw

Performance - Unsatisfactory performance - Company informing claimant - Claimant's attitude and behaviour - Claimant levelling unjustified allegations against the company - Effect of - What the claimant should have done instead - Whether the claimant had done his job - Factors to consider - Whether the company had been reasonable in its treatment of him - Whether the relationship of mutual trust and confidence had been affected between the parties - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Lim Chean How v. BIC-GBA Sdn Bhd
(Anna Ng Fui Choo) [2013] 2 ILR 373 cljlaw labourlaw

Performance - Unsatisfactory performance - Sales targets set for claimant - Claimant not achieving sales targets satisfactorily - Whether the sales targets set had been too high - Evidence adduced - Effect of - Company having to accept stock returns and suffer losses - Claimant given warning letters - Claimant refusing to acknowledge - Whether his conduct had been acceptable - Whether the company had behaved reasonably towards him - Factors to consider - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Lim Chean How v. BIC-GBA Sdn Bhd
(Anna Ng Fui Choo) [2013] 2 ILR 373 cljlaw labourlaw

DOMESTIC INQUIRY:

Absence of - Whether it had vitiated the company's decision to terminate the claimants - Factors to consider - Effect of - Whether the company's actions had been in compliance with natural justice - What the company should have done - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ismail Md Ali & Ors v. Express Rail Link Sdn Bhd
(Anna Ng Fui Choo) [2013] 2 ILR 285 cljlaw labourlaw

Charges - Whether defective - Whether it had lacked particulars and details - Whether the claimant had been able to understand the nature of the charges and respond accordingly - Actions of the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ab Aziz Hj Mohamed v. KUB Telekomunikasi Sdn Bhd
(Eddie Yeo Soon Chye) [2013] 2 ILR 261 cljlaw labourlaw

EVIDENCE

Adverse inference - When it would be drawn - Whether suitable to draw against the company in this case - Whether the two witnesses had been important and material witnesses - Whether their evidence would have made a material difference to the company's case - Factors to consider - Effect of - Evidence Act 1950, s. 114(g)
Lim Chean How v. BIC-GBA Sdn Bhd
(Anna Ng Fui Choo) [2013] 2 ILR 373 cljlaw labourlaw

Witness - Material contradictions and inconsistencies - Claimant's witnesses testimony - Whether it had affected the claimant's case
Lim Chean How v. BIC-GBA Sdn Bhd
(Anna Ng Fui Choo) [2013] 2 ILR 373 cljlaw labourlaw

INDUSTRIAL COURT

Jurisdiction - Contents of the complainants' application - Whether the complainants had come within the definition of workmen in s. 17(1)(b) of the Industrial Relations Act 1967 - Factors to consider - Effect of - Whether they had been covered by the said collective agreement - Whether they had rightly brought this complaint
Lok Chung Fong & Ors v. Telekom Malaysia Berhad & Anor
(Susila Sithamparam) [2013] 2 ILR 360 cljlaw labourlaw

Jurisdiction - Whether the Industrial Court had the jurisdiction to determine - Contents of the complainants' application - Effect of - Retrospective effect of the said collective agreement - Industrial Relations Act 1967, s. 56
Lok Chung Fong & Ors v. Telekom Malaysia Berhad & Anor
(Susila Sithamparam) [2013] 2 ILR 360 cljlaw labourlaw

Procedure - Action - Statement of Case - Application to strike out - Claimant negotiating and accepting retrenchment benefits after being made redundant - Whether that meant he/she had accepted the retrenchment - Effect of - Whether his/her actions had precluded her from filing this case - Effect of
Yuen Yeong Oon v. Trane Malaysia Sales & Services Sdn Bhd
(Ahmad Rosli Mohd Sham) [2013] 2 ILR 282 cljlaw labourlaw

Procedure - Action - Statement of Case - Application to strike out - Whether suitable to grant in the circumstances - Factors to consider - Effect of
Yuen Yeong Oon v. Trane Malaysia Sales & Services Sdn Bhd
(Ahmad Rosli Mohd Sham) [2013] 2 ILR 282 cljlaw labourlaw

Procedure - Pleadings - Amendment of pleadings - Rejoinder - Contents and purpose of - When the court could allow amendments - What had to be borne in mind - Whether the proposed amendments had sought to advance new grounds - Evaluation of the grounds in support thereof - Whether the application would cause injustice to the company - Whether suitable to grant in the circumstances - Whether the application had been an abuse of process - Factors to consider - Effect of - Industrial Relations Act 1967, rule 11(2) and s. 29(g)
Kwan Tat Thai v. Pan Malaysian Pools Sdn Bhd
(Eddie Yeo Soon Chye) [2013] 2 ILR 350 cljlaw labourlaw

Procedure - Pleadings - Amendment of pleadings - Rejoinder - Contents of the proposed amendments - Whether would be prejudicial to the company - Whether such prejudice could be compensated with costs
Kwan Tat Thai v. Pan Malaysian Pools Sdn Bhd
(Eddie Yeo Soon Chye) [2013] 2 ILR 350 cljlaw labourlaw

Procedure - Pleadings - Amendment of pleadings - Rejoinder - Whether it had attempted to change the suit from one character to another - Relevancy of the proposed amendments to the claimant's claim for unjust dismissal - Effect of
Kwan Tat Thai v. Pan Malaysian Pools Sdn Bhd
(Eddie Yeo Soon Chye) [2013] 2 ILR 350 cljlaw labourlaw

Procedure - Pleadings - Amendment of pleadings - Statement of Case - Grounds for amendments - Whether should be allowed - Evaluation of the grounds in support and against - Effect of - Whether the company would suffer prejudice - Factors to consider
Jasbeer Singh Hajara Singh v. UMW Toyota Motor Sdn Bhd
(Peh Suan Yong) [2013] 2 ILR 342 cljlaw labourlaw

Procedure - Pleadings - Amendment of pleadings - Statement of Case - Power of court to allow amendment - Function of pleadings - Whether the claimant's application had been bona fide - Whether suitable to grant in the circumstances - Factors to consider - Effect of - Industrial Relations Act 1967, s. 29(g) and sub-r 9(3)
Jasbeer Singh Hajara Singh v. UMW Toyota Motor Sdn Bhd
(Peh Suan Yong) [2013] 2 ILR 342 cljlaw labourlaw

Procedure - Representation - Company objecting to claimant's solicitor conducting the case - Company failing to state objections in Form A - Whether that had precluded the company from raising objections now - Perusal of Form A - Effect of - Industrial Court Rules 1967, r. 3(3) & Form A
Mark Clinton Coney v. Design Worldwide Partnership Sdn Bhd
(Peh Suan Yong) [2013] 2 ILR 390 cljlaw labourlaw

Procedure - Representation - Objection to claimant's solicitor conducting the case - Objection based on ground that claimant's solicitor could be a potential witness in the case - Whether the restrictions in r. 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978 had applied to the claimant's solicitor - Factors to consider - Effect of - Legal Profession (Practice and Etiquette) Rules 1978, r. 28(a)
Mark Clinton Coney v. Design Worldwide Partnership Sdn Bhd
(Peh Suan Yong) [2013] 2 ILR 390 cljlaw labourlaw

Procedure - Representation - Whether appointment of claimant's solicitor had been conflicted or had embarrassed him - Factors to consider - Evaluation of the evidence - Whether the company had discharged their onus of proving conflict or embarrassment - Effect of - Whether rule 3(b)(i) of the Legal Profession (Practice and Etiquette) Rules 1978 had applied - Effect of - Legal Profession (Practice and Etiquette) Rules 1978, r. 3(b)(i)
Mark Clinton Coney v. Design Worldwide Partnership Sdn Bhd
(Peh Suan Yong) [2013] 2 ILR 390 cljlaw labourlaw

INTERPRETATION

Collective Agreement - Whether the ordinary rules of construction of documents had applied to collective agreements - What should be considered to determine the intention of the parties
Lok Chung Fong & Ors v. Telekom Malaysia Berhad & Anor
(Susila Sithamparam) [2013] 2 ILR 360 cljlaw labourlaw

NON-COMPLIANCE

Collective Agreement - Article on retirement age - New age of retirement stipulated in the new collective agreement - New collective agreement having retrospective effect - Whether it had bound the complainants - Factors to consider - Complainants retiringat 55 based on the old collective agreement which had been in force at the material time - Whether the complainants had been forced to retire - Whether the complainants should have filed for unfair dismissal under s. 20 of the Industrial Relations Act 1967
Lok Chung Fong & Ors v. Telekom Malaysia Berhad & Anor
(Susila Sithamparam) [2013] 2 ILR 360 cljlaw labourlaw

TRADE DISPUTE

Punishment order - Claimant found guilty of misconduct and downgraded as punishment - Contents of the punishment order - Perusal thereof - Minimum period of punishment over - Effect of -Whether the aggrieved workman had been entitled to an automatic reinstatement to his original position with the company - Whether the company had been under an obligation to create a special position for him - Factors to consider - Effect of - Industrial Relations Act 1967, s. 26(2)
Malaysia Airlines System Employees Union Peninsular Malaysia v. Malaysia Airlines Systems Berhad
(Rajendran Nayagam) [2013] 2 ILR 336 cljlaw labourlaw

INDEKS PERKARA

KETERANGAN

Saksi - Kegagalan syarikat memanggil saksi - Sama ada anggapan di bawah s. 114(g) Akta Keterangan 1950 terpakai - Faktor yang harus diambil kira - Kesannya - Akta Keterangan 1950, s. 114(g)
Caroline Mercy Jayaselvi lwn. Goodyear Malaysia Bhd
(Hamdan Indah) [2013] 2 ILR 304 cljlaw labourlaw

MAHKAMAH PERUSAHAAN

Prosedur - Tindakan - Pemfailan hujahan bertulis oleh pihak-pihak yang bertikai - Sama ada merupakan suatu kemestian - Kaedah Mahkamah Perusahaan 1967, peraturan 22
Caroline Mercy Jayaselvi lwn. Goodyear Malaysia Bhd
(Hamdan Indah) [2013] 2 ILR 304 cljlaw labourlaw

Prosedur - Tindakan - Pengerusi yang mendengar kes dan Pengerusi yang menurunkan award merupakan pihak yang berbeza - Sama ada diperuntukkan di dalam undang-undang - Apa yang harus dilakukan oleh mahkamah dalam keadaan sedemikian - Akta Perhubungan Perusahaan 1967, s. 23(6)
Caroline Mercy Jayaselvi lwn. Goodyear Malaysia Bhd
(Hamdan Indah) [2013] 2 ILR 304 cljlaw labourlaw

Remedi - Ganti rugi - YM merupakan pekerja percubaan - Apa yang harus diawardkan - Akta Perhubungan Perusahaan 1967, s. 30(6A) Jadual Kedua
Caroline Mercy Jayaselvi lwn. Goodyear Malaysia Bhd
(Hamdan Indah) [2013] 2 ILR 304 cljlaw labourlaw

Remedi - Penempatan semula - Sama ada sesuai diawardkan - Faktor-faktor yang harus diambil kira
Caroline Mercy Jayaselvi lwn. Goodyear Malaysia Bhd
(Hamdan Indah) [2013] 2 ILR 304 cljlaw labourlaw

PEMBUANGAN KERJA

Pekerja percubaan - Sama ada YM merupakan seorang pekerja percubaan - Keterangan yang dikemukakan – Kesannya
Caroline Mercy Jayaselvi lwn. Goodyear Malaysia Bhd
(Hamdan Indah) [2013] 2 ILR 304 cljlaw labourlaw

Prestasi kerja yang tidak memuaskan - Sama ada berjaya dibuktikan oleh syarikat - Keterangan yang dikemukakan - Keterangan saksi syarikat - Kesannya - Sama ada penamatan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Caroline Mercy Jayaselvi lwn. Goodyear Malaysia Bhd
(Hamdan Indah) [2013] 2 ILR 304 cljlaw labourlaw

Prestasi kerja yang tidak memuaskan - Sama ada YM telah diberikan amaran oleh syarikat - Sama ada tempoh percubaan YM telah dilanjutkan oleh syarikat - Keterangan yang dikemukakan - Kesannya - Sama ada penamatan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Caroline Mercy Jayaselvi lwn. Goodyear Malaysia Bhd
(Hamdan Indah) [2013] 2 ILR 304 cljlaw labourlaw

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