| BULLETIN 06/2016 | |
|
LATEST CASES (ILR Issue 06 of 2016) SUBJECT INDEX ADMINISTRATIVE LAW Judicial review - Application for - Royal Malaysian Navy - Termination from service under Queen's Regulations - Whether Queen's Regulations could be relied upon for termination - Whether Queen's Regulations repealed by s. 217(1) of Armed Forces Act 1972 (AFA) - Whether Queen's Regulations saved by s. 217(2) of AFA - Whether Queen's Regulations remained in force CONTRACT OF EMPLOYMENT Frustration of contract - Claimant unable to perform his job due to his medical condition - Medical Board not convened by the company - Whether it had been fatal to the company's case - Factors to consider - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3) Frustration of contract - Whether the claimant's medical condition had made the performance of his contract of employment impossible - Evidence adduced - Effect of - Whether there had been a frustration of the claimant's contract of employment - Factors to consider - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) Frustration of contract - Whether the company had acted in a precipitating manner in bringing about his termination - Factors to consider - Conduct of the company towards him - Whether it had been reasonable - Effect of Terms and conditions - Notice of termination - Claimants terminated without notice - Effect of Terms and conditions - Notice of termination - No reasons stated in the termination letters as grounds for their termination - Whether fatal to the company's case - Position of the law DISMISSAL Absenteeism - Claimant absent from the workplace without leave - Whether proven by the bank - Evidence adduced - Effect of - His explanations - Whether it could be accepted - Factors to consider - Whether the bank had been justified in dismissing him - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, Breach of company rules and policies - Fraud/Dishonesty - Whether the second claimant had purchased parts for his personal use but put it under the company's account - Evidence adduced - Effect of - His explanations for the same - Whether acceptable - Whether misconduct proven by the company - Whether the company had been justified in dismissing him Breach of company rules and policies - Fraud/Dishonesty - Whether the third claimant had `deceived' the company by failing to disclose his medical condition to it - Evidence adduced - Whether proven by the company Breach of company rules and policies - Medical leave - Claimant taking excessive medical leave - Whether she had suffered from a serious illness to justify her frequent absences from work - Evidence adduced - Effect of - Claimant failing to undergo a medical examination despite the bank requesting her to do so - What that had shown - Whether she had been able to justify her long absences from work - Bank's conduct towards her - Whether reasonable - Whether her dismissal had been with just cause and excuse Breach of company rules and policies - Medical leave - Whether the claimant had taken excessive medical leave - Evidence adduced - Effect of - Whether proven by the bank - Whether the claimant by her conduct had frustrated her contract of employment - Factors to consider - Impact of the claimant's conduct on the bank - Whether it had justified her dismissal - Whether her dismissal had been with just cause and excuse Breach of company rules and policies - Negligence - Claimant losing the Firm's document - Whether she had lost it with mischievous intent - Factors to consider - Evidence adduced - Effect of - Whether the Firm had successfully proven this charge against her - Whether it had justified her dismissal - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Insubordination - Claimant refusing to record his attendance at work - Whether proven by the bank - Evidence adduced - Effect of - Claimant's position in the bank - Whether he had been remiss in his duty towards it - Factors to consider - Whether the bank had lost its trust and faith in him as an employee - Whether his dismissal had been without just cause and excuse Misconduct - Claimant accused of deviating from his normal route and siphoning diesel from the company vehicle, to an unknown third party, either for reward or otherwise - Whether proven by the company - Evidence adduced - Effect of - Claimant's explanations - Whether plausible - Whether misconduct proven by the company - Whether it had justified the claimant's dismissal Misconduct - Claimant accused of siphoning 41 litres of diesel from the company vehicle, to an unknown third party, either for reward or otherwise - Whether proven by the company - Evidence adduced - Whether it had been sufficient to prove the company's case against him - What the company should have done - Whether the misconduct had been proven against the claimant Misconduct - Claimant divulging the Firm's internal information to the client - Whether her actions had shown her to be reckless and unworthy of the trust and confidence placed by the Firm in her - Position held by the claimant in the Firm - Whether she had acted in conflict of interest with the fiduciary duties she had owed to it - Factors to consider - Evidence adduced - Effect of - Whether actual loss needed to be shown or proven - Whether the Firm had been reasonable in dismissing her - Whether dismissal without just cause and excuse Misconduct - Whether the first claimant had manipulated the billing system of the company - Evidence adduced - Effect of - Whether it had adversely impacted the company - Whether the misconduct had been proven against him on a balance of probabilities - Whether the company had been reasonable in dismissing him - Whether dismissal without just cause and excuse Misconduct - Whether the first claimant had the "absolute power" to do whatever he had wanted in the company - Position held by the first claimant - Evidence adduced - Effect of - Whether the first claimant had been guilty of gross misconduct - Whether he had gone off on a frolic of his own - Factors to consider - Whether the misconduct had been proven by the company Misconduct - Whether the first claimant's idea on the leasing of the service bay had shown his ineptness, lack of capability and/or understanding of the job he had been employed for - Factors to consider - Effect of Misconduct - Whether the second claimant had used office time to conduct his personal business - Evidence adduced - Effect of Performance - Unsatisfactory performance - Whether the second claimant had been inept at performing his job - Factors to consider - Position held by the second claimant in the company - Turnover of the company affected - Whether poor performance had been proven by the company - Whether his dismissal had been justified Performance - Unsatisfactory performance - Whether the third claimant had the experience and knowledge to perform his job - How he had secured his job - Effect of - Position held by him in the company - Whether his long medical leave had hindered him from performing his job - Factors to consider - Whether poor performance proven by the company - Whether it had justified his dismissal Retrenchment - Redundancy - Claimant declared redundant and terminated from employment - Whether there had been a reduction of work or a reduction in business in the ASEAN region - Factors to consider - Evidence adduced - Effect of - Whether the respondent company had proven that his position had become redundant - Whether dismissal without just cause and excuse Retrenchment - Redundancy - Claimant terminated from service based on redundancy - Whether proven by the respondent company - Evidence adduced - Effect of - Whether his duties and responsibilities had ceased or diminished - Factors to consider - Claimant's department not closed down - What that meant Retrenchment _ Redundancy - Selection for redundancy - Whether the claimant's position had become redundant - Factors to consider - Evidence adduced - Effect of - Whether the claimant's retrenchment had been carried out bona fide - Whether the respondent company had exercised its managerial power bona fide - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) DOMESTIC INQUIRY Absence of - Whether it had adversely affected the bank's case - Factors to consider Absence of - Whether it had been fatal to the company's case - Factors to consider - Effect of - Position of the law - Whether curable by de novo proceedings before the Industrial Court Procedural impropriety - Participants in the disciplinary hearing acting as witnesses against the claimant at the Inquiry - Whether the inquiry had been carried out in compliance with natural justice - Factors to consider - Effect of - Whether the inquiry had been invalid EVIDENCE Documentary evidence - Company relying on graphs and data generated from the computer to prove the misconduct - Discrepancy in the graphs and data and the receipts from the petrol station - Effect of - Whether it had been safe to rely on the graphs to dismiss the claimant - What the company should have done INDUSTRIAL COURT Procedure - Parties - Joinder - Joinder of SSB to the proceedings - Whether ought to be allowed - When s. 29 of the Industrial Relations Act 1967 could be invoked - Factors to consider - Industrial Relations Act 1967, s. 29(a) Procedure - Parties - Joinder - Joinder of SSB to the proceedings - Whether ought to be allowed - Whether SSB had been the claimant's employer - Evidence adduced - Effect of - Whether the application had been frivolous, vexatious and/or an abuse of process of the court Procedure - Parties - Joinder - Whether SSB should be joined to the proceedings - Whether there had been a legal nexus between the company and SSB - Factors to consider - Evidence adduced - Evaluation of - Test to be applied - Whether the joinder application ought to be allowed Procedure - Parties - Whether SSB should be joined as a party to the proceedings - Factors to consider - Whether being a separate legal entity had allowed SSB to resist the joinder application STATUTORY INTERPRETATION Construction of statutes - Literal approach - Section 217(2) of AFA - Meaning of words 'made under' - Whether should be given plain and ordinary meaning TRADE DISPUTE Collective agreement - Bank carrying out a hubbing and relocation exercise - Whether it had been in compliance with the Collective Agreement and the prevailing law - Evidence adduced - Factors to consider - Effect of - Conduct of the bank towards the affected workmen - Whether the union had made out its case against the bank - Whether the bank's right to transfer the affected workmen had been a management prerogative - Perusal of the employment letters and the Collective Agreement - Effect of - Industrial Relations Act 1967, s. 13(3)(b) Collective Agreement - Whether the bank's hubbing and relocation exercise had been carried out mala fide - Evidence adduced - Factors to consider - Effect of - Obligations of the bank towards the affected workmen under the Collective Agreement - Whether the bank had required the union's consent to carry out the said exercise - Perusal of the evidence - Effect of - Whether the union had made out its case against the bank Collective Agreement - Whether the bank's hubbing and relocation exercise should be struck off - Factors to consider - Effect of INDEKS PERKARA KETERANGAN Beban bukti - Sama ada YM atau syarikat yang harus membuktikan bahawa kontrak tempoh tetap di dalam kes ini tulen atau sebaliknya Saksi - Percanggahan keterangan daripada YM - Sama ada percanggahan tersebut menggugat kredibiliti beliau - Faktor-faktor yang harus diambil kira - Kesannya KONTRAK PERKHIDMATAN Jenis - Kontrak perkhidmatan tempoh tetap - Permit kerja YM dilanjutkan - Sama ada itu menunjukkan niat syarikat untuk melanjutkan kontrak perkhidmatannya - Faktor-faktor yang harus diambil kira - Kesannya Jenis - Kontrak perkhidmatan tempoh tetap - Sama ada kontrak YM merupakan satu kontrak perkhidmatan tempoh tetap - Faktor-faktor yang harus diambil kira - Penelitian kandungan surat perlantikan YM - Kesannya - Sama ada kontrak perkhidmatan tempoh tetap YM adalah tulen - Keterangan yang dikemukakan - Kesannya Jenis - Kontrak perkhidmatan tempoh tetap - YM terus bekerja untuk dua minggu setelah tamat tempoh kontrak perkhidmatannya - Sama ada itu menunjukkan niat syarikat untuk melanjutkan kontrak perkhidmatannya - Faktor-faktor yang harus diambil kira - Kesannya PEMBUANGAN KERJA Notis penamatan - Tiada alasan yang dinyatakan di dalam surat tersebut untuk menamatkan perkhidmatan YM - Sama ada ianya merupakan suatu termination simpliciter - Kesannya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) Notis penamatan - YM diserahkan sepucuk surat oleh syarikat responden - Sama ada surat tersebut merupakan surat penamatan perkhidmatan beliau - Faktor-faktor yang harus diambil kira - Penelitian kandungan surat tersebut - Kesannya - Sama ada YM telah ditamatkan perkhidmatannya - Keterangan yang dikemukakan - Sama ada penamatan perkhidmatannya telah dilakukan secara adil dan bersebab Prestasi kerja - Kerja yang tidak memuaskan - Sama ada YM gagal untuk menunjukkan prestasi kerja yang memuaskan kepada syarikat responden - Keterangan yang dikemukakan - Kesannya - Sama ada dibuktikan oleh syarikat responden |
|
| Copyright Mylawbox Sdn Bhd | Subscribe | Unsubscribe |
