LATEST CASES (ILR Issue 5 of 2020)

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review – Certiorari – Award from Industrial Court – Whether ought to be quashed – Employment – Constructive dismissal – Demotion – Applicant demoted due to allegations of scuffle with subordinate – Whether applicant conducted herself in unruly and disrespectful manner – Whether applicant proved to be victim of assault – Subordinate made defamatory remarks against applicant – Applicant took legal action against subordinate in his personal capacity – Whether valid exercise of applicant’s private right – Whether charges against applicant established – Whether company had valid reasons to demote applicant – Whether applicant justified in treating herself as being constructively dismissed – Whether award handed down ought to be set aside
Kirba Daisy John Das v. City-Link Express (M) Sdn Bhd & Anor
(Tengku Maimun Tuan Mat, Abang Iskandar & Abdul Rahman Sebli JJCA) [2020] 2 ILR 209

CONTRACT

Employment contract – Termination – Estoppel – Termination of employees’ employment – Claim for remuneration benefits by employees against employer – Allegation that employees could not take action against employers as employees rejected offer of re-employment and agreed not to take legal action against employer – Whether there was consent signed by employees not to take legal action against employer – Whether employees estopped from taking legal action against employer – Whether consent constituted restraint on employees’ right to litigation – Whether consent valid and enforceable – Contracts Act 1950, s. 29
Mashyur Mutiara Sdn Bhd v. Abdul Samat Ishak & Ors And Another Appeal
(Chan Jit Li JC) [2020] 2 ILR 224

CONTRACT OF EMPLOYMENT

Fixed-term contract – Whether the claimant had been on a fixed-term contract – Factors to consider – Evidence adduced – Evaluation of – Effect of
Loganathan Maniam v. Murphy Sarawak Oil Co Ltd
(Sumathi Murugiah) [2020] 2 ILR 275

Terms and conditions – Resignation – Whether the claimant had been forced, coerced, threatened or pressured to resign – Factors to consider – Evidence adduced – Effect of – Claimant’s actions – What it had shown – What he should have done – Whether he had resigned voluntarily
Saw Chong Tatt v. Cosmopolitan Avenue Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2020] 2 ILR 324

Type of – Fixed-term contract – Whether the claimant had been on a fixed-term contract – Whether it could be determined by the evidence adduced – Effect of – Contradictions in the company’s e-mail to her and her extension letter – What it had shown – Whether it could be explained away – Effect of
Ahmira Aznin Ahmad v. Celcom Mobile Sdn Bhd
(Nor Afizah Hanum Mokhtar) [2020] 2 ILR 259

Type of – Fixed-term contract – Whether the claimant’s contract of employment had been a genuine fixed-term contract – Factors to consider – Evidence adduced – Effect of – Claimant’s actions – What it had shown – Whether the claimant’s contract had come to a natural end – Whether he had been dismissed – Whether dismissal without just cause and excuse
Enis Arnaut v. Nova Beta (M) Energy Sdn Bhd
(Rosenani Abd Rahman) [2020] 2 ILR 266

DISMISSAL

Breach of company rules and policies – Company’s confidential information – Whether the claimant had deliberately divulged highly confidential information belonging to the company to its customers – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether proven by the company – Whether he had committed an act which had been inconsistent with his duties as a Manager – Whether it had justified his non-confirmation in employment
Kevin James Rodrigues v. AEON Co (M) Bhd
(Paramalingam J Doraisamy) [2020] 2 ILR 384

Breach of company rules and policies – Conflict of interest – Whether he had awarded projects to his favoured contractors, without proper quotations and without the approval of the Management Committee – Factors to consider – Evidence adduced – Effect of – Whether proven by the company against him – Whether his actions had constituted serious misconduct – Whether his actions had warranted his dismissal – Factors to consider – Whether his dismissal had been without just cause and excuse
Unyat Anak Dollah v. Kelab Rekreasi Petroliam
(Ani Ak Solep) [2020] 2 ILR 347

Breach of company rules and policies – Negligence – Whether the claimant had failed to follow the procedure for VADS payment – Evidence adduced – Effect of – His explanations – Whether could be accepted – Whether he had discussed the setting up of the In-House Call Center with VADS, without the company’s approval – The effect of his actions – Whether it had justified his non-confirmation in employment
Kevin James Rodrigues v. AEON Co (M) Bhd
(Paramalingam J Doraisamy) [2020] 2 ILR 384

Breach of company rules and policies – Sexual harassment – Claimant addressing COW1 as "sayang" without her consent – Whether he had sexually harassed her by his actions – Factors to consider – Effect of – Whether his actions had been against the company’s rules and policies – Claimant’s defence – Whether acceptable – Whether his misconduct had been serious enough to warrant his dismissal – Whether dismissal without just cause and excuse
Loganathan Maniam v. Murphy Sarawak Oil Co Ltd
(Sumathi Murugiah) [2020] 2 ILR 275

Constructive dismissal – Job scope – Whether the claimant had been given jobs to do outside his job scope – Factors to consider – Evidence adduced – Effect of – Whether the claimant had been constructively dismissed – Whether dismissal without just cause and excuse
Saw Chong Tatt v. Cosmopolitan Avenue Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2020] 2 ILR 324

Insubordination – Whether the claimant’s refusal to attend the CSG course had amounted to gross insubordination – Factors to consider – Evidence adduced – Effect of – Whether attendance of the course had been compulsory – Company’s actions towards him – What it had shown – Claimant’s actions and reactions – Whether acceptable – Whether the company had successfully proven insubordination against him – Claimant’s position in the company – Whether his dismissal had been justified under the circumstances – Whether dismissal without just cause and excuse
Rafee Arokiasamy v. Muhibbah Security Sdn Bhd
(Domnic Selvam Gnanapragasam) [2020] 2 ILR 252

Misconduct – Claimant accused of physically harassing COW1 and asking her to carry out tasks that had not been within her scope of work as his secretary – Whether proven by the company – Factors to consider – Evidence adduced – Effect of – Position held by the claimant in the company – Whether his actions had been abusive in nature – Effect of – Whether the charge had been proven against him – Whether it had justified his dismissal
Loganathan Maniam v. Murphy Sarawak Oil Co Ltd
(Sumathi Murugiah) [2020] 2 ILR 275

Misconduct – Claimant accused of showering COW1 with unwanted gifts and attention – Whether proven by the company – Factors to consider – Evidence adduced – Effect of – Claimant’s defence – Whether could be accepted – Whether it had justified his dismissal – Whether dismissal without just cause and excuse
Loganathan Maniam v. Murphy Sarawak Oil Co Ltd
(Sumathi Murugiah) [2020] 2 ILR 275

Misconduct – Whether the claimant had accepted commissions from the company’s contractors – Factors to consider – Evidence adduced – Effect of – His explanations – Whether could be accepted – What his actions had shown – Whether his actions had opened the company up to potential legal liability – Whether proven by the company against him – Whether it had warranted his dismissal – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Unyat Anak Dollah v. Kelab Rekreasi Petroliam
(Ani Ak Solep) [2020] 2 ILR 347

Misconduct – Whether the claimant had illegally deleted the ledger of cash in hand for the financial year July 2016 to June 2017 – Factors to consider – Evidence adduced – Effect of – Whether proven by the company against him
Unyat Anak Dollah v. Kelab Rekreasi Petroliam
(Ani Ak Solep) [2020] 2 ILR 347

Misconduct – Whether the claimant had spoken negatively and gossiped about his colleagues over the phone to VADS – Evidence adduced – Effect of – Position held by the claimant in the company – Whether his conduct had been acceptable – Whether it had justified his non-confirmation in employment
Kevin James Rodrigues v. AEON Co (M) Bhd
(Paramalingam J Doraisamy) [2020] 2 ILR 384

Notice of termination – Forced resignation – Whether the claimant had been forced to resign – Factors to consider – Evidence adduced – Effect of – Claimant filling up the Exit Interview Questionnaire – Whether it had been evidence of forced resignation – The purpose of the Exit Interview Questionnaire – Whether it had just been a survey
Saw Chong Tatt v. Cosmopolitan Avenue Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2020] 2 ILR 324

Performance – Poor performance – Whether the claimant had been a poor performer – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether poor performance successfully proven by the company against her – Whether dismissal without just cause and excuse
Ahmira Aznin Ahmad v. Celcom Mobile Sdn Bhd
(Nor Afizah Hanum Mokhtar) [2020] 2 ILR 259

Performance – Unsatisfactory performance – Whether the claimant had performed poorly – Whether proven by the company – Evidence adduced – Evaluation of – Effect of – Whether the claimant had been informed of his shortcomings and given sufficient opportunity to improve – Whether his performance reviews had been conducted fairly – Conduct and actions of the company towards him – Effect of – Claimant’s attitude – What it had reflected – Whether the company’s actions towards him had been reasonable – Whether it had acted capriciously or arbitrarily when it had decided not to confirm him – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Kevin James Rodrigues v. AEON Co (M) Bhd
(Paramalingam J Doraisamy) [2020] 2 ILR 384

Retrenchment – Redundancy – Claimants retrenched – Claimants not informed or consulted with regards to the rightsizing exercise and not notified or warned about being made redundant – Effect of – Whether there had been any legal obligation on the company to consult or give advance warning to them on the possibility of retrenchment – Evidence adduced – Factors to consider – Effect of – Whether the claimants’ retrenchments had been carried out bona fide
Syamaizar Azmi v. Central Sugars Refinery Sdn Bhd
(Reihana Abd Razak) [2020] 2 ILR 373

Retrenchment – Redundancy – Claimants retrenched – Whether the company had offered them alternative positions – Evidence adduced – Evaluation of – Effect of – Claimants’ conduct – What it had shown
Syamaizar Azmi v. Central Sugars Refinery Sdn Bhd
(Reihana Abd Razak) [2020] 2 ILR 373

Retrenchment – Redundancy – Claimants retrenched – Whether the company had terminated them and appointed foreigners to replace them – Factors to consider – Evidence adduced – Effect of
Syamaizar Azmi v. Central Sugars Refinery Sdn Bhd
(Reihana Abd Razak) [2020] 2 ILR 373

Retrenchment – Redundancy – Claimants retrenched – Whether their retrenchments had been carried out bona fide – Factors to consider – Evidence adduced – Evaluation of – Whether a genuine redundancy situation had arisen in the company – Company’s actions towards them – Whether the re-organisation exercise had been a bona fide exercise of the company’s managerial prerogative to run its business operations – Company failing to follow the LIFO principle – Whether it had been mandatory to follow it – Effect of – Company following its Performance Management Systems and disciplinary records instead – Whether justified – Whether the claimants’ retrenchments had been carried out bona fide
Syamaizar Azmi v. Central Sugars Refinery Sdn Bhd
(Reihana Abd Razak) [2020] 2 ILR 373

DOMESTIC INQUIRY

Procedural impropriety – Whether the DI conducted had been in breach of the rules of natural justice – Factors to consider – Effect of – Investigating Officer and Prosecuting Officer the same person – Whether they should have been different persons – Reasons for the same – Whether the DI conducted had been valid – Whether its decisions and opinions should be taken into account in these proceedings
Loganathan Maniam v. Murphy Sarawak Oil Co Ltd
(Sumathi Murugiah) [2020] 2 ILR 275

Procedural impropriety – Whether the DI had been ‘conducted faultily’ – Factors to consider – Evidence adduced – Effect of – Claimant initialling every page of the minutes of the DI and relying on it at the hearing – What it had shown – Whether the Industrial Court hears the matter afresh
Unyat Anak Dollah v. Kelab Rekreasi Petroliam
(Ani Ak Solep) [2020] 2 ILR 347

EVIDENCE

Burden of proof – Dismissal in dispute – Who had borne the burden of proving it – Effect of
Enis Arnaut v. Nova Beta (M) Energy Sdn Bhd
(Rosenani Abd Rahman) [2020] 2 ILR 266

Witnesses – Failure to call – Whether the company’s failure to call the relevant witnesses to support its case had prejudiced it – Factors to consider – Effect of – Whether dismissal without just cause and excuse
Ahmira Aznin Ahmad v. Celcom Mobile Sdn Bhd
(Nor Afizah Hanum Mokhtar) [2020] 2 ILR 259

LABOUR LAW

Employment – Constructive dismissal – Demotion – Applicant demoted due to allegations of scuffle with subordinate – Whether applicant conducted herself in unruly and disrespectful manner – Whether applicant proved to be victim of assault – Subordinate made defamatory remarks against applicant – Applicant took legal action against subordinate in his personal capacity – Whether valid exercise of applicant’s private right – Whether charges against applicant established – Whether company had valid reasons to demote applicant – Whether applicant justified in treating herself as being constructively dismissed
Kirba Daisy John Das v. City-Link Express (M) Sdn Bhd & Anor
(Tengku Maimun Tuan Mat, Abang Iskandar & Abdul Rahman Sebli JJCA) [2020] 2 ILR 209

Employment – Termination – Appeal against award of Labour Court – Employees claimed for remuneration benefits against employer at Labour Court – Labour Court awarded in favour of employees – Whether Labour Court correct in award – Whether employee employed by employer – Whether agreement relied by employee in claim against employer valid and enforceable – Whether Labour Court seized with jurisdiction to hear employees’ complaints – Whether Labour Court’s quantification of awards correct – Whether employer could succeed in plea of estoppel
Mashyur Mutiara Sdn Bhd v. Abdul Samat Ishak & Ors And Another Appeal
(Chan Jit Li JC) [2020] 2 ILR 224

Employment – Termination – Claim for remuneration benefits by employees against employer at Labour Court – Employees hired by entity appointed by employer – Whether there was employer-employee relationship between parties – Whether there was principal-agent relationship between employer and entity – Whether employees hired by agent – Whether entity agent/manager of employer – Whether agent had full authority and discretion to hire workers – Whether agent executed contracts of service with employees in capacity of agent/manager of employer – Whether employer employed employee – Employment Act 1955, s. 2 – Contracts Act 1950, s. 179
Mashyur Mutiara Sdn Bhd v. Abdul Samat Ishak & Ors And Another Appeal
(Chan Jit Li JC) [2020] 2 ILR 224

Industrial Court – Award – Whether order of certiorari ought to be issued to quash award – Employment – Constructive dismissal – Demotion – Applicant demoted due to allegations of scuffle with subordinate – Whether applicant conducted herself in unruly and disrespectful manner – Whether applicant proved to be victim of assault – Subordinate made defamatory remarks against applicant – Applicant took legal action against subordinate in his personal capacity – Whether valid exercise of applicant’s private right – Whether charges against applicant established – Whether company had valid reasons to demote applicant – Whether applicant justified in treating herself as being constructively dismissed – Whether award handed down ought to be set aside
Kirba Daisy John Das v. City-Link Express (M) Sdn Bhd & Anor
(Tengku Maimun Tuan Mat, Abang Iskandar & Abdul Rahman Sebli JJCA) [2020] 2 ILR 209

Jurisdiction – Claim for remuneration benefits by employees against employer at Labour Court – Whether powers of Director General of Labour (‘DGL’) to inquire limited to disputes on wages only – Whether DGL seized with powers to inquire into employees’ complaints – Employment Act 1955, s. 69(1)
Mashyur Mutiara Sdn Bhd v. Abdul Samat Ishak & Ors And Another Appeal
(Chan Jit Li JC) [2020] 2 ILR 224

INDEKS PERKARA

KETERANGAN

Keterangan dokumentari – Nota SD – Sama ada kandungannya sahih – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya
Zulkifli Omar lwn. Dongwha Malaysia Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2020] 2 ILR 333

PEMBUANGAN KERJA

Ketidakpatuhan terhadap peraturan dan polisi syarikat – Kecuaian – Sama ada YM cuai dalam menilai dan menyemak tuntutan kakitangan syarikat dalam menjalankan tugasnya – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Pembelaan dan penerangan YM – Sama ada dapat diterima – Sama ada pertuduhan-pertuduhan ini berjaya dibuktikan oleh syarikat terhadapnya – Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab – Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Noor Ikhsan Abdul Aziz lwn. Bina Darulaman Berhad
(Sitarun Nisa Abdul Aziz) [2020] 2 ILR 310

Ketidakpatuhan terhadap peraturan dan polisi syarikat – Konflik kepentingan – Sama ada penglibatan YM dengan FSB dan ZE merupakan suatu konflik kepentingan dengan syarikat responden – Keterangan yang dikemukakan – Penilaiannya – Kesannya – Pemegang saham utama FSB adalah abang YM dan pemilik ZE adalah anak-anak beliau – Sama ada fakta ini diketahui oleh syarikat responden – Kesannya – Sama ada pertuduhan ini berjaya dibuktikan oleh syarikat responden terhadapnya – Pembelaan YM – Sama ada dapat diterima – Sama ada penamatan perkhidmatan YM telah dilakukan secara adil dan bersebab
Zulkifli Omar lwn. Dongwha Malaysia Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2020] 2 ILR 333

Salah laku – Sama ada YM mengetahui mengenai potongan gaji pekerja-pekerja syarikat responden oleh FSB dan ZE – Sama ada tindakan tersebut menyalahi undang-undang – Hubungan pekerja-pekerja asing tersebut dengan syarikat responden, FSB dan ZE masing-masing – Kesannya – Sama ada YM telah meraih keuntungan peribadi dengan membelakangkan kepentingan syarikat responden – Sama ada beliau memungkiri tanggungjawab fidusiari beliau kepada syarikat responden – Jawatan yang dipegang oleh YM dalam syarikat responden – Sama ada tindakannya itu mewajarkan pembuangan kerjanya – Sama ada penamatan perkhidmatan YM telah dilakukan secara adil dan bersebab
Zulkifli Omar lwn. Dongwha Malaysia Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2020] 2 ILR 333