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LATEST CASES (ILR Issue 5 of 2017)
SUBJECT INDEX
ADMINISTRATIVE LAW
Dismissal from service - Dismissal from police force - Disciplinary proceedings - Establishment of investigation committee - Request for oral hearing - Denial of supply of documents to appellant for preparation of his case - Whether a breach of natural justice - Whether appellant given fair opportunity to present his case - Serious dispute as to facts - Whether proper to decide case against appellant without oral hearing - Whether decision ultra vires art. 135(2) Federal Constitution - Whether decision liable to be challenged in court - Charges - Whether defective and unsustainable - Public Officers (Conduct and Discipline) Regulations 1993, regs. 37 & 37B
Abdul Ghani Che Mat v. Pengerusi Suruhanjaya Pasukan Polis & Ors
(Mohd Zawawi Salleh JCA, Vernon Ong Lam Kiat JCA & Abdul Rahman Sebli JCA) [2017] 2 ILR 209
Judicial review - Certiorari - Application to challenge and quash decision of Director General of Trade Unions ('DG') in registering in-house union - Whether DG failed to afford opportunity to national union representing non-executive employees in banking industry to be heard before registering in-house union - Interpretation of s. 12 of Trade Unions Act 1959 (TUA) - Whether DG given wide discretion to allow registration - Whether DG needs to consult with existing trade union representing same industry - Whether relevant parties should be afforded fair hearing - Whether provisions of s. 12 of TUA complied with - Trade Unions Act 1959, s. 71A
Kesatuan Pekerja-pekerja Bukan Eksekutif Maybank Bhd v. Kesatuan Kebangsaan Pekerja-Pekerja Bank & Anor
(Arifin Zakaria CJ, Suriyadi Halim Omar FCJ, Azahar Mohamed FCJ, Zaharah Ibrahim FCJ & Balia Yusof Wahi JCA) [2017] 2 ILR 230
Rules of natural justice - Dismissal - Right to be heard - Establishment of investigation committee - Request for oral hearing - Denial of - Whether a breach of natural justice - Whether appellant given fair opportunity to present his case - Whether decision to dismiss appellant ultra vires art. 135(2) Federal Constitution
Abdul Ghani Che Mat v. Pengerusi Suruhanjaya Pasukan Polis & Ors
(Mohd Zawawi Salleh JCA, Vernon Ong Lam Kiat JCA & Abdul Rahman Sebli JCA) [2017] 2 ILR 209
CONSTITUTIONAL LAW
Public servants - Dismissal - Establishment of investigation committee - Failure to grant oral hearing for appellant to present his case - Whether a breach of natural justice - Whether decision to dismiss appellant ultra vires art. 135(2) Federal Constitution
Abdul Ghani Che Mat v. Pengerusi Suruhanjaya Pasukan Polis & Ors
(Mohd Zawawi Salleh JCA, Vernon Ong Lam Kiat JCA & Abdul Rahman Sebli JCA) [2017] 2 ILR 209
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 company against him
Ahmad Nazri Mustafa v. Boustead Petroleum Marketing Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2017] 2 ILR 336
Attendance - Lateness - Claimant habitually coming late to work - Company not issuing show cause or warning letters against him - Whether the company, by its actions, had condoned his misconduct - Factors to consider - Effect of - Whether the claimant's misconduct had constituted serious misconduct - Position and seniority of the claimant in the company - Whether his misconduct had justified his dismissal - Whether dismissal without just cause and excuse
Aezrine Shah Abdullah v. Fat Boys Records Sdn Bhd
(Andersen Ong Wai Leong) [2017] 2 ILR 409
Attendance - Lateness - Whether the claimant had been a habitual latecomer to work - Evidence adduced - Evaluation of - Effect of - Whether the charge had been proven by the company against him - Claimant's explanations - Whether could be accepted - The company's actions towards him - Whether the company had been reasonable in dismissing the claimant - Factors to consider - Whether dismissal without just cause and excuse
Aezrine Shah Abdullah v. Fat Boys Records Sdn Bhd
(Andersen Ong Wai Leong) [2017] 2 ILR 409
Attendance - Lateness - Whether the claimant had come late to work - Whether he had informed his immediate superior of it - Evidence adduced - Effect of - Claimant's explanations - Whether it could be accepted - Whether this charge had been proven by the company against him
Ahmad Nazri Mustafa v. Boustead Petroleum Marketing Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2017] 2 ILR 336
Attendance - Truancy - Whether the claimant had left his workplace without permission and without reasonable grounds - Whether the charge had been proven by the company against him - Evidence adduced - Evaluation of - Effect of - Claimant's explanations - Whether could be accepted - The company's actions towards him - Whether the company had been reasonable in dismissing the claimant - Factors to consider - Whether dismissal without just cause and excuse
Edi Hidayat Zulkefli v. Pelabuhan Tanjung Pelepas Sdn Bhd
(Duncan Sikodol) [2017] 2 ILR 326
Breach of company rules and policies - Claimant forwarding internal letters to external parties - Whether it had been in breach of the CA - Perusal of the CA and its clauses - Effect of - Whether the company had been entitled to take disciplinary action against him - Whether this charge had been proven by the company against him
Ahmad Nazri Mustafa v. Boustead Petroleum Marketing Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2017] 2 ILR 336
Breach of company rules and policies - Use of force - Whether the claimant had lunged at and brushed past COW3's shoulder in an angry and provocative manner - Factors to consider - Evidence adduced - Effect of - Whether this charge had been proven by the company against him - Whether his dismissal had been without just cause and excuse
Ahmad Nazri Mustafa v. Boustead Petroleum Marketing Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2017] 2 ILR 336
Breach of company rules and policies - Whether the claimant had forwarded his e-mail to a third-party account - Factors to consider - Effect of - Whether this charge had been proven by the company against him - Whether his dismissal had been without just cause and excuse
Ahmad Nazri Mustafa v. Boustead Petroleum Marketing Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2017] 2 ILR 336
Constructive dismissal - Benefits - Payment of bonus - Whether it had been contractual - Factors to consider - Whether the claimant by his conduct had accepted his performance rating in his appraisal form - Evidence adduced - Effect of - Whether he could rely on his low bonus payment to claim constructive dismissal
Gurbakhish Singh Harnek Singh v. PNB Commercial Sdn Bhd
(Anna Ng Fui Choo) [2017] 2 ILR 387
Constructive dismissal - Change in job functions - Certain jobs removed from the claimant's portfolio - Reasons for the same - Whether could be accepted - Whether the company's actions towards him had been reasonable - Whether it had been a fundamental breach which had gone to the root of his contract of employment which had justified him claiming constructive dismissal - Factors to consider
Gurbakhish Singh Harnek Singh v. PNB Commercial Sdn Bhd
(Anna Ng Fui Choo) [2017] 2 ILR 387
Constructive dismissal - Change in job functions - Claimant given a new job description - Whether it had amounted to a demotion - Factors to consider - Effect of - Company explaining the reasoning behind it - Whether it had amounted to a fundamental breach which had gone to the root of his contract of employment - Whether the company's actions had been reasonable - Whether constructive dismissal proven by the claimant
Gurbakhish Singh Harnek Singh v. PNB Commercial Sdn Bhd
(Anna Ng Fui Choo) [2017] 2 ILR 387
Constructive dismissal - Company issuing a memorandum to the claimant and seeking his explanation to the issues raised therein - Whether it had been a fundamental breach that had gone to the root of his contract of employment - Factors to consider - Effect of - Claimant's actions - Matter only raised by the claimant five months after the event - What it had shown - Whether he could now rely on it to claim constructive dismissal
Gurbakhish Singh Harnek Singh v. PNB Commercial Sdn Bhd
(Anna Ng Fui Choo) [2017] 2 ILR 387
Constructive dismissal - Company repossessing the keys to the Plaza Damansara office - Whether the claimant had been contractually entitled to retain the keys - Factors to consider - Evidence adduced - Effect of - Claimant only raising the matter five months after the event - Whether it had been an afterthought - Whether he could now rely on it to claim constructive dismissal
Gurbakhish Singh Harnek Singh v. PNB Commercial Sdn Bhd
(Anna Ng Fui Choo) [2017] 2 ILR 387
Insubordination - Claimant failing to wear a necktie for the task force meeting despite being instructed to do so - Whether it had constituted insubordinate behaviour - Factors to consider - Evidence adduced - Effect of - His reasons for the same - Whether acceptable - Whether this charge had been proven by the company against him - Whether it had constituted serious misconduct - Whether it had justified the company dismissing him - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss 20(3) & 30(5)
Kong Seng Chai v. Perusahaan Otomobil Nasional Sdn Bhd
(Anna Ng Fui Choo) [2017] 2 ILR 422
Insubordination - Claimant leaving the meeting and failing to return to make his presentation - Whether his actions had constituted insubordinate behaviour - Factors to consider - Evidence adduced - Effect of - Claimant's explanations - Whether acceptable - What his conduct had shown - Whether this allegation had been proven by the company against him - Whether it had constituted a serious misconduct - Claimant's position in the company - Whether the company had been justified in dismissing him based on this ground - Factors to consider - Effect of - Whether dismissal without just cause and excuse
Kong Seng Chai v. Perusahaan Otomobil Nasional Sdn Bhd
(Anna Ng Fui Choo) [2017] 2 ILR 422
Insubordination - Claimant refusing to attend the DI - Whether it had constituted insubordinate behaviour - Factors to consider - Effect of - Perusal of the case laws - Whether this charge had been proven by the company against him - Whether it had justified his dismissal - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ahmad Nazri Mustafa v. Boustead Petroleum Marketing Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2017] 2 ILR 336
Misconduct - Whether the claimant had made serious allegations against COW3 and COW5 in his e-mail dated 13 June 2008 - Factors to consider - Evidence adduced - Effect of - Whether this charge had been proven against him
Ahmad Nazri Mustafa v. Boustead Petroleum Marketing Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2017] 2 ILR 336
Notice of termination - Forced resignation - Whether the claimant had been forced to resign from the company - Factors to consider - Evidence adduced - Effect of - Whether his forced resignation had constituted a dismissal by the company
Aezrine Shah Abdullah v. Fat Boys Records Sdn Bhd
(Andersen Ong Wai Leong) [2017] 2 ILR 409
Performance - Unsatisfactory performance - Claimant failing to achieve her sales targets - Whether proven by the company - Evidence adduced - Evaluation of - Effect of - Whether she had been aware of the sales targets she had needed to achieve - Factors to consider - Company's actions towards her - Whether bona fide - Whether the company had behaved reasonably towards her - Factors to consider - Whether her non-performance had justified her dismissal - Claimant's conduct - What it had shown - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Yasmin Haron v. Extol Corporation (M) Sdn Bhd
(Reihana Abd Razak) [2017] 2 ILR 359
Probationer - Claimant's probation period extended for a further three-month period - Whether it had been done with mala fide motives - Factors to consider - Effect of - Whether she had been suitable for the position - Evidence adduced - Whether dismissal without just cause and excuse
Yasmin Haron v. Extol Corporation (M) Sdn Bhd
(Reihana Abd Razak) [2017] 2 ILR 359
Retrenchment - Redundancy - Claimant retrenched - Claimant pregnant when she had been retrenched - Whether the company had victimised her due to her pregnancy - Evidence adduced - Evaluation of - Whether a genuine redundancy situation had arisen in the company - Company's actions towards her - Whether her retrenchment had been carried out bona fide
Chan Nga Guan v. Cogdev Malaysia Sdn Bhd
(Sarojini Kandasamy) [2017] 2 ILR 294
Retrenchment - Redundancy - Claimant retrenched - Claimant remaining employed and paid by the company over the 6-week separation or time frame set by the company - What it had shown of the company's intentions - Whether the claimant's position had been surplus to the company's needs - Evidence adduced - Factors to consider - Effect of - Whether the claimant's retrenchment had been carried out bona fide
Chan Nga Guan v. Cogdev Malaysia Sdn Bhd
(Sarojini Kandasamy) [2017] 2 ILR 294
Retrenchment - Redundancy - Claimant retrenched - Whether she had been given notice of it - Factors to consider - Evidence adduced - Evaluation of - Effect of - Whether the claimant's retrenchment had been carried out bona fide
Chan Nga Guan v. Cogdev Malaysia Sdn Bhd
(Sarojini Kandasamy) [2017] 2 ILR 294
Retrenchment - Redundancy - Claimant retrenched - Whether the company had been under an obligation to source alternative opportunities for her - Factors to consider - Effect of - Actions taken by the company - Claimant's actions - What it had shown
Chan Nga Guan v. Cogdev Malaysia Sdn Bhd
(Sarojini Kandasamy) [2017] 2 ILR 294
Retrenchment - Redundancy - Claimant retrenched - Whether the company had borne the burden of reskilling and retraining the claimant - Evidence adduced - Claimant declining training programmes provided by the company without finding out about course content - What it had shown
Chan Nga Guan v. Cogdev Malaysia Sdn Bhd
(Sarojini Kandasamy) [2017] 2 ILR 294
DOMESTIC INQUIRY
Procedural impropriety - Whether DI conducted had been in breach of the rules of natural justice - Factors to consider - Effect of - Whether it would be safe to rely upon it in the hearing before the Court
Edi Hidayat Zulkefli v. Pelabuhan Tanjung Pelepas Sdn Bhd
(Duncan Sikodol) [2017] 2 ILR 326
EVIDENCE
Adverse inference - Company failing to call Arunava Bhattacharjee as its witness - Whether he had been a material witness - Factors to consider - Whether an adverse inference ought to be drawn against it - Evidence Act 1950, s. 114(g)
Chan Nga Guan v. Cogdev Malaysia Sdn Bhd
(Sarojini Kandasamy) [2017] 2 ILR 294
Adverse inference - Company failing to call the COO and CEO despite attempts to secure their attendance - Whether the evidence of COW1 had been sufficient - Factors to consider - Effect of - Whether an adverse inference ought to be drawn against the company
Gurbakhish Singh Harnek Singh v. PNB Commercial Sdn Bhd
(Anna Ng Fui Choo) [2017] 2 ILR 387
Standard of proof - What the test had been ie. whether the company's conduct had been unreasonable or the 'contract test' - Factors to consider - Position of the law - Effect of
Gurbakhish Singh Harnek Singh v. PNB Commercial Sdn Bhd
(Anna Ng Fui Choo) [2017] 2 ILR 387
Witness - Credibility - Whether the claimant had been a credible witness - Factors to consider - Effect of
Chan Nga Guan v. Cogdev Malaysia Sdn Bhd
(Sarojini Kandasamy) [2017] 2 ILR 294
Witness - Material contradictions and inconsistencies - Various discrepancies in the evidence given by the claimant in Court and in his reply to the show cause letter - Effect of
Edi Hidayat Zulkefli v. Pelabuhan Tanjung Pelepas Sdn Bhd
(Duncan Sikodol) [2017] 2 ILR 326
INDUSTRIAL COURT
Pleadings - Claimant failing to plead non-conformation by the company on the Code of Conduct for Industrial Harmony - Whether parties had been bound by their pleadings - Position of the law - Whether submissions from the Bar should be given any weight - Factors to consider - Effect of
Chan Nga Guan v. Cogdev Malaysia Sdn Bhd
(Sarojini Kandasamy) [2017] 2 ILR 294
Punishment - Mitigating factors - Whether the company had taken into account irrelevant matters when deciding to dismiss him - Claimant committing the misconduct for the first time - What the company should have done instead
Edi Hidayat Zulkefli v. Pelabuhan Tanjung Pelepas Sdn Bhd
(Duncan Sikodol) [2017] 2 ILR 326
Remedies - Reinstatement - Whether an appropriate remedy to grant - Factors to consider - Effect of
Edi Hidayat Zulkefli v. Pelabuhan Tanjung Pelepas Sdn Bhd
(Duncan Sikodol) [2017] 2 ILR 326
LABOUR LAW
Trade union - Registration - Director General of Trade Unions ('DG') registered in-house union - Whether DG failed to afford opportunity to national union representing non-executive employees in banking industry to be heard before registering in-house union - Interpretation of s. 12 of Trade Unions Act 1959 (TUA) - Whether DG given wide discretion to allow registration - Whether DG needs to consult with existing trade union representing same industry - Whether relevant parties should be afforded fair hearing - Whether provisions of s. 12 of TUA complied with - Trade Unions Act 1959, s. 71A
Kesatuan Pekerja-pekerja Bukan Eksekutif Maybank Bhd v. Kesatuan Kebangsaan Pekerja-Pekerja Bank & Anor
(Arifin Zakaria CJ, Suriyadi Halim Omar FCJ, Azahar Mohamed FCJ, Zaharah Ibrahim FCJ & Balia Yusof Wahi JCA) [2017] 2 ILR 230
NON-COMPLIANCE
Collective Agreement - Article on annual increments - Whether it had been complied with by the company - Perusal of the article - Whether the article had been crystal clear in its intentions - Factors to consider - Effect of - Whether there had been non-compliance by the company of the said Collective Agreement
Kesatuan Pekerja-Pekerja Perkilangan Perusahaan Makanan v. Gold Coin Specialities Sdn Bhd
(Ishak Mohd Yusoff) [2017] 2 ILR 260
Collective Agreement - Article on overtime - Union conceding that the company had not been in breach of this article at the date stated in its Statement of Case - Effect of - Whether on this ground alone the complaint should be struck off - Factors to consider - Effect of
Kesatuan Pekerja-Pekerja Perkilangan Perusahaan Makanan v. Gold Coin Specialities Sdn Bhd
(Ishak Mohd Yusoff) [2017] 2 ILR 260
Collective Agreement - Whether material facts should be disputed - What needs to be proven - Factors to consider - Effect of - Whether there had been non-compliance by the company of the said Collective Agreement - Industrial Relations Act 1967, s. 56(2)
Kesatuan Pekerja-Pekerja Perkilangan Perusahaan Makanan v. Gold Coin Specialities Sdn Bhd
(Ishak Mohd Yusoff) [2017] 2 ILR 260
POLICE
Disciplinary proceedings - Dismissal - Establishment of investigation committee - Request for oral hearing - Denial of supply of documents to appellant for preparation of his case - Whether a breach of natural justice - Whether appellant given fair opportunity to present his case - Serious dispute as to facts - Whether proper to decide case against appellant without oral hearing - Whether decision ultra vires art. 135(2) Federal Constitution - Whether decision liable to be challenged in court - Charges - Whether defective and unsustainable - Public Officers (Conduct and Discipline) Regulations 1993, regs. 37 & 37B
Abdul Ghani Che Mat v. Pengerusi Suruhanjaya Pasukan Polis & Ors
(Mohd Zawawi Salleh JCA, Vernon Ong Lam Kiat JCA & Abdul Rahman Sebli JCA) [2017] 2 ILR 209
STATUTORY INTERPRETATION
Construction of statutes - Interpretation of - Trade Unions Act 1959, s. 12 - Whether gives free hand to Director General of Trade Unions ('DG') in exercise of discretion in registering an in-house union - Whether DG needs to consult relevant parties - Whether a fair and reasonable decision may only be given by affording relevant parties a fair hearing
Kesatuan Pekerja-pekerja Bukan Eksekutif Maybank Bhd v. Kesatuan Kebangsaan Pekerja-Pekerja Bank & Anor
(Arifin Zakaria CJ, Suriyadi Halim Omar FCJ, Azahar Mohamed FCJ, Zaharah Ibrahim FCJ & Balia Yusof Wahi JCA) [2017] 2 ILR 230
INDEKS PERKARA
KETERANGAN
Keterangan dokumentari - Sama ada YM merupakan seorang pekerja syarikat - Faktor-faktor yang harus diambil kira - Keterangan yang dikemukakan - Kesannya - Sama ada terdapat perhubungan majikan-pekerja antara syarikat dengan YM - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada YM telah dibuang kerja oleh syarikat - Sama ada pembuangan kerjanya telah dilakukan secara adil dan bersebab
Sivamani Naidu Masalamani lwn. Measat Broadcast Network System Sdn Bhd
(Siti Salwa Musa) [2017] 2 ILR 274
PEMBUANGAN KERJA
Kedatangan - Kelewatan - Sama ada YM telah datang lewat ke kerja, secara berlebihan - Faktor-faktor yang harus diambil kira - Keterangan yang dikemukakan - Kesannya - Sama ada salah laku ini berjaya dibuktikan oleh pihak bank terhadapnya - Pembelaan YM - Sama ada dapat diterima - Kesannya - Kelakuan dan tindakan pihak bank terhadap YM - Apa ia menunjukkan - Sama ada pihak bank telah bertindak secara adil terhadap YM - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Norzri Mohamad Nor lwn. Small Medium Enterprise Development Bank Malaysia Berhad
(Jamil Aripin) [2017] 2 ILR 370
Kedatangan - Kelewatan - Sama ada YM telah datang lewat ke kerja, secara berlebihan - Sama ada ianya merupakan suatu salah laku yang serius - Faktor-faktor yang harus diambil kira - Jawatan yang disandang oleh YM - Kesannya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab
Norzri Mohamad Nor lwn. Small Medium Enterprise Development Bank Malaysia Berhad
(Jamil Aripin) [2017] 2 ILR 370
Salah laku - Gangguan seksual - YM didakwa melakukan gangguan seksual terhadap COW2 - Sama ada dibuktikan oleh syarikat responden terhadapnya - Keterangan yang dikemukakan - Kesannya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab
Harun Yaakub lwn. RHB Bank Berhad
(Sapini Mat Saman) [2017] 2 ILR 283
Salah laku - Gangguan seksual - YM melakukan salah laku gangguan seksual terhadap COW2 - Sama ada salah laku tersebut mewajarkan pembuangan kerjanya - Faktor-faktor yang harus diambil kira - Rekod perkhidmatan YM dengan syarikat responden - Sama ada beliau mempunyai rekod disiplin atau salah laku sebelum insiden ini - Kesannya - Sama ada hukuman pembuangan kerja adalah wajar dalam kes ini - Sama ada pembuangan kerja YM dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Harun Yaakub lwn. RHB Bank Berhad
(Sapini Mat Saman) [2017] 2 ILR 283
SIASATAN DALAMAN
Ketiadaan - Sama ada fatal kepada kes bank - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada pihak bank telah mengadakan "Due Inquiry" sebelum menamatkan perkhidmatan YM - Sama ada pihak bank telah mematuhi prinsip keadilan asasi - Akta Kerja 1955, s. 14
Norzri Mohamad Nor lwn. Small Medium Enterprise Development Bank Malaysia Berhad
(Jamil Aripin) [2017] 2 ILR 370
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