SUBJECT INDEX
ADMINISTRATIVE LAW
Judicial review - Application for - Award of Industrial Court - Ex
parte hearing - Sufficient cause warranting departure from technicalities and
legal form - Exercise of Industrial Court's discretion - Whether decision of Industrial
Court Chairman perverse in law - Industrial Relations Act 1967, s. 30(5)
Hotel Istana Kuala Lumpur v. Jasman Saidun
(Mohamad Ariff Yusof J)
[2011] 2 ILR 261
Judicial review - Certiorari - Application to quash Industrial
Court award holding that 1st respondent constructively dismissed by applicant -
Chairman who handed down award was not Chairman who heard case - No prejudice to
applicant when case not heard de novo - Chairman's findings on redundancy wholly
unsupported by evidence - Industrial Court's ruling on constructive dismissal instead
of redundancy a jurisdictional error of law - Backwages and compensation, principles
of - Industrial Relations Act 1967, s. 23(6)
Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor
(Hadhariah Syed Ismail JC)
[2011] 2 ILR 251
Remedies - Certiorari - Application to quash respondent's decision
that applicant was obliged to deduct withholding tax on payment of charter fees
made to Singapore non-resident companies - Whether Singapore enterprise was carrying
on business in Malaysia through a permanent establishment - Whether art. IV of Double
Taxation Agreement applicable - Whether there was legal basis for respondent to
impose income tax on Singapore non-resident companies
Alam Maritim (M) Sdn Bhd v. Lembaga Hasil Dalam Negeri Malaysia
(Aziah Ali J)
[2011] 2 ILR 241
CONTRACT OF EMPLOYMENT
Terms and conditions - Handbook - Grievance procedure set out therein
- Claimant failing to adhere - Effect of - Whether it had been necessary for the
claimant to adhere to the grievance procedure before walking out of his job - Claimant
denying knowledge of grievance procedure - What he should have done - Whether dismissal
without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Suresh V Thaver v. Tele Dynamics Sdn Bhd
(Ahmad Terrirudin Mohd Salleh)
[2011] 2 ILR 293
Terms and conditions - Handbook - Whether the company had the power to
redesignate the claimant in various jobs - Effect of
Suresh V Thaver v. Tele Dynamics Sdn Bhd
(Ahmad Terrirudin Mohd Salleh)
[2011] 2 ILR 293
DISMISSAL
Absenteeism - Claimant absent from work - Whether he had reasonable excuse
for being absent from work - Whether the company had been aware of his reasons for
being absent from work - Effect of - Evidence adduced - Whether it had constituted
just cause to dismiss the claimant - Effect of - Whether dismissal without just
cause or excuse - Industrial Relations Act 1967, s. 20(3)
Yap Sze Leong v. Hwee Seng (Electronics) Sdn Bhd
(Mary Shakila G Azariah)
[2011] 2 ILR 364
Absenteeism - Claimant absent from work - Whether proven by the company
- Evidence adduced by the company - Effect of - Claimant transferred numerous times
by the company - Whether the claimant's transfer had been exercised in good faith
- Claimant refusing to go on transfer - Whether the claimant's refusal had been
reasonable - Whether the transfers had been a form of punishment imposed by the
company on the claimant - Claimant querying new terms and conditions of service
- Company failing to address the claimant's concerns - Whether that had been good
industrial relations practice on the part of the company - Effect of - Past service
record of the claimant - Effect of - Whether dismissal without just cause or excuse
- Industrial Relations Act 1967, ss. 20(3) & 30(5)
Yap Sze Leong v. Hwee Seng (Electronics) Sdn Bhd
(Mary Shakila G Azariah)
[2011] 2 ILR 364
Breach of company rules and policies - Negligence - Claimant approving
hire purchase loans without complying with the bank's Standard Practice Instructions
- Bank suffering huge losses - Effect of - Whether the claimant had been guilty
of serious misconduct - Position held by the claimant in the bank - Duty of the
claimant to the bank - Effect of - Whether the bank had managed to establish the
misconduct against the claimant - Whether dismissal without just cause or excuse
- Industrial Relations Act 1967, ss. 20(3) & 30(5)
Khairuddin Ismail v. Maybank Berhad
(Rajendran Nayagam)
[2011] 2 ILR 282
Breach of company rules and policies - Negligence - Claimant failing to
comply with bank procedures, guidelines and directives in approving loans - Whether
the claimant had possessed a discretion as to whether to follow the directives -
Evidence adduced - Past practice of the bank - Effect of - Whether the bank had
condoned the breach - Effect of - Whether the claimant had been guilty of serious
misconduct - Position held by the claimant in the bank - Duty of the claimant to
the bank - Effect of - Whether the bank had managed to establish the misconduct
against the claimant - Whether dismissal without just cause or excuse - Industrial
Relations Act 1967, ss. 20(3) & 30(5)
Idris Tahir v. Malayan Banking Berhad
(Hapipah Monel)
[2011] 2 ILR 395
Breach of company rules and policies - Negligence - Standard of care owed
by the claimant to the bank in his position - Whether the claimant had acted as
a prudent banker would have done - Factors to consider - Effect of - Duties owed
by the claimant to the bank in his position - Whether it had been fulfilled - Bank
suffering losses due to the claimant's negligence - Effect of
Idris Tahir v. Malayan Banking Berhad
(Hapipah Monel)
[2011] 2 ILR 395
Constructive dismissal - Claimant abandoning his claim for constructive
dismissal - Effect of
Yii Hii Kong v. Sarawak Plywood (M) Sdn Bhd
(P Iruthayaraj D Pappusamy)
[2011] 2 ILR 311
Constructive dismissal - Demotion - Claimant redesignated many times by
the company - No change to his salary structure or his job grade - Effect of - Whether
his redesignations had been demotions - Whether the claimant had gone down the company's
organisation structure - Factors to consider - Whether the claimant had suffered
a loss of powers -Whether the claimant had succeeded in proving constructive dismissal
- Whether dismissal without just cause or excuse - Industrial Relations Act 1967,
ss. 20(3) & 30(5)
Suresh V Thaver v. Tele Dynamics Sdn Bhd
(Ahmad Terrirudin Mohd Salleh)
[2011] 2 ILR 293
Constructive dismissal - Demotion - Claimant walking out of employment
and claiming constructive dismissal - Evidence adduced by the claimant - Whether
it had been sufficient to discharge his burden of proof - Effect of - Whether the
claimant had managed to prove his case against the company - Effect of - Whether
dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Suresh V Thaver v. Tele Dynamics Sdn Bhd
(Ahmad Terrirudin Mohd Salleh)
[2011] 2 ILR 293
Constructive dismissal - Salary - Firm failing to pay the claimant her
salaries - Reasons for the same - Claimant claiming constructive dismissal - Effect
of - Job functions of the claimant - Whether the procurement of a PC had been part
of her terms and conditions of employment - Perusal of the terms and conditions
of the claimant's letter of employment - Effect of - Whether the firm's actions
had amounted to a breach which had gone to the root of the contract of employment
- Whether dismissal without just cause or excuse - Industrial Relations Act 1967,
s. 20(3)
S Santhi v. Tetuan Devan Hussin
(Ahmad Terrirudin Mohd Salleh)
[2011] 2 ILR 383
Constructive dismissal - Salary - Firm failing to pay the claimant her
salary - Reasons for the same - Firm alleging non-performance - Whether proven by
the firm - Evidence adduced - Claimant walking out on constructive dismissal - Whether
the firm's actions had been reasonable - Effect of - Whether there had been a fundamental
breach of the terms of employment by the firm - Whether dismissal without just cause
or excuse - Industrial Relations Act 1967, s. 20(3)
S Santhi v. Tetuan Devan Hussin
(Ahmad Terrirudin Mohd Salleh)
Constructive dismissal - Salary - Firm failing to pay the claimant her
salary - Reasons for the same - Firm alleging that the claimant had been absent
from work - Whether proven by the firm - Evidence adduced - Claimant walking out
on constructive dismissal - Whether the firm's actions had been reasonable - Effect
of - Whether there had been a fundamental breach of the terms of employment by the
firm - Whether dismissal without just cause or excuse - Industrial Relations Act
1967, s. 20(3)
S Santhi v. Tetuan Devan Hussin
(Ahmad Terrirudin Mohd Salleh)
[2011] 2 ILR 383
Misconduct - Charges brought against the claimant had emanated from investigations
commenced based on an anonymous remark stated in a letter - Whether the claimant
had been prejudiced - Factors to consider - Effect of - The functions and duties
of the bank as custodians of public fund
Idris Tahir v. Malayan Banking Berhad
(Hapipah Monel)
[2011] 2 ILR 395
Notice of termination - Forced resignation - Whether the claimant had
been forced to resign - Claimant's resignation letter part and parcel of negotiated
terms between the parties - Evidence of negotiations taking place between the parties
- Claimant paid a sum of monies - Effect of - Whether dismissal without just cause
or excuse - Industrial Relations Act 1967, s. 20(3)
Yii Hii Kong v. Sarawak Plywood (M) Sdn Bhd
(P Iruthayaraj D Pappusamy)
[2011] 2 ILR 311
Performance - Poor performance - Performance appraisals carried out on
the claimant - Whether it had been carried out fairly - Factors to consider - Effect
of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967,
s. 20(3)
Suresh V Thaver v. Tele Dynamics Sdn Bhd
(Ahmad Terrirudin Mohd Salleh)
[2011] 2 ILR 293
DOMESTIC INQUIRY
Procedural impropriety - Whether the claimant had been denied a right
to be heard - Claimant refusing to testify at the DI after the close of the company's
case - Effect of - Whether the claimant had squandered the opportunity to defend
himself
Idris Tahir v. Malayan Banking Berhad
(Hapipah Monel)
[2011] 2 ILR 395
EVIDENCE
Documentary evidence - Admissibility - Whether the documents sought to
be admitted had been illegally obtained or obtained without the permission of the
company - Whether the relevancy of the documents had been important - Factors to
consider - Effect of - Whether the claimant had been in breach of his contract of
employment by tendering such documents - Industrial Relations Act 1967, s. 30(5)
Khoo Boo Teong v. Lemtronics Sdn Bhd
(Sulaiman Ismail)
[2011] 2 ILR 340
Documentary evidence - Admissibility - Whether the documents sought to
be admitted had been private and confidential in nature - Whether the documents
sought to be admitted had been relevant to the proceedings - An evaluation of -
Effect of - Industrial Relations Act 1967, s. 30(5)
Khoo Boo Teong v. Lemtronics Sdn Bhd
(Sulaiman Ismail)
[2011] 2 ILR 340
Witness - Claimant giving contradictory evidence - Whether the claimant
had been a truthful witness
Idris Tahir v. Malayan Banking Berhad
(Hapipah Monel)
[2011] 2 ILR 395
Witness - Credibility - Whether the claimant had been a credible witness
- Factors to consider - Whether reliance would be placed on his evidence
Yii Hii Kong v. Sarawak Plywood (M) Sdn Bhd
(P Iruthayaraj D Pappusamy)
[2011] 2 ILR 311
INDUSTRIAL COURT
Jurisdiction - Whether the jurisdiction of the Industrial Court had been
limited to the 2 issues referred to in the reference - Factors to consider
All Malayan Estates Staff Union (AMESU) v. Lepan Kabu Palm Oil Mill (Boustead
Plantation Bhd)
(Ong Geok Lan)
[2011] 2 ILR 327
Procedure - Parties - Joinder - Whether there had been a nexus - Factors
to consider - Effect of - Whether joinder necessary to make adjudication enforceable
and effective - Industrial Relations Act 1967, s. 29(a)
Zainal Abidin Masrom v. Alfa Adjusters (M) Sdn Bhd
(Ahmad Terrirudin Mohd Salleh)
[2011] 2 ILR 277
LABOUR LAW
Employment - Termination of service - Certiorari - Application
to quash Industrial Court award holding that 1st respondent constructively dismissed
by applicant - Chairman who handed down award was not Chairman who heard case -
No prejudice to applicant when case not heard de novo - Chairman's findings on redundancy
wholly unsupported by evidence - Industrial Court's ruling on constructive dismissal
instead of redundancy a jurisdictional error of law - Backwages and compensation,
principles of - Industrial Relations Act 1967, s. 23(6)
Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor
(Hadhariah Syed Ismail JC)
[2011] 2 ILR 251
Industrial Court - Award - Certiorari - Application to quash Industrial
Court award holding that 1st respondent constructively dismissed by applicant -
Chairman who handed down award was not Chairman who heard case - No prejudice to
applicant when case not heard de novo - Chairman's findings on redundancy wholly
unsupported by evidence - Industrial Court's ruling on constructive dismissal instead
of redundancy a jurisdictional error of law - Backwages and compensation, principles
of - Industrial Relations Act 1967, s. 23(6)
Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor
(Hadhariah Syed Ismail JC)
[2011] 2 ILR 251
Industrial Court - Award - Judicial review - Ex parte hearing -
Sufficient cause warranting departure from technicalities and legal form - Exercise
of Industrial Court's discretion - Whether decision of Industrial Court Chairman
perverse in law - Industrial Relations Act 1967, s. 30(5)
Hotel Istana Kuala Lumpur v. Jasman Saidun
(Mohamad Ariff Yusof J)
[2011] 2 ILR 261
Social security - Accident - Whether the accident arose out of and in
the course of employment - Factors to consider - Whether a deviation had taken place
- Effect of - Employee's Social Security Act 1969, s. 24(1)(b) & Employee's Social
Security (Social Security Appellate Board Procedure) Regulations 1976 regulations
3(1), 11, 11(h) and 13
Mohamad Karimi Che Kassim v. Ketua Pengarah Pertubuhan Keselamatan Sosial
(Ahmad Terrirudin Mohd Salleh)
[2011] 2 ILR 266
REVENUE LAW
Income tax - Obligation to deduct withholding tax - Whether applicant
duty bound to make or deduct any withholding tax in relation to charter fees made
to Singaporean non-resident companies - Whether Singapore enterprise was carrying
on business in Malaysia through a permanent establishment - Whether art. IV of Double
Taxation Agreement applicable - Whether there was legal basis for respondent to
impose income tax on Singapore non-resident companies
Alam Maritim (M) Sdn Bhd v. Lembaga Hasil Dalam Negeri Malaysia
(Aziah Ali J)
[2011] 2 ILR 241
TRADE DISPUTE
Collective Agreement - Claim for Workshop Allowance which was not provided
for in the Collective Agreement - Effect of - Claimant working in the Workshop at
all material times - Whether it had come under the definition of wages - Factors
to consider - Whether the claimant had been entitled to it - Industrial Relations
Act 1967, s. 26(2) & Employment Act 1955, s. 2
All Malayan Estates Staff Union (AMESU) v. Lepan Kabu Palm Oil Mill (Boustead
Plantation Bhd)
(Ong Geok Lan)
[2011] 2 ILR 327
Collective Agreement - Interpretation of articles - Entitlement of workmen
to annual increments - Whether it had been at the respondent's discretion - Factors
to consider - Evidence adduced - Effect of - Industrial Relations Act 1967, s. 26(2)
Kesatuan Pekerja-Pekerja Perkilangan Perusahaan Makanan v. Southern Edible Oil
Industries (M) Sdn Bhd
(Susila Sithamparam)
[2011] 2 ILR 476
Collective Agreement - Interpretation of articles - Medical boarding out
of the claimant - Whether the claimant had satisfied the requirements to be medically
boarded out - Factors to consider - Claimant tendering his resignation - Reasons
for the same - Effect of - Whether the company had been bound by the SOCSO Medical
Board - Effect of - Industrial Relations Act 1967, s. 26(2)
All Malayan Estates Staff Union (AMESU) v. Lepan Kabu Palm Oil Mill (Boustead
Plantation Bhd)
(Ong Geok Lan)
[2011] 2 ILR 327
Collective Agreement - Interpretation of articles - Provision for disciplining
the claimants - Whether followed by the company - Effect of - Whether the claimants
had been given a fair hearing at the Domestic Disciplinary Inquiry - Finding of
not guilty by the Domestic Disciplinary Inquiry changed to guilty by the Disciplinary
Committee - Whether there had been grounds to change the findings - Evidence adduced
- Effect of - Claimants punished with demotion - Whether the punishment had been
tempered with mercy - Factors to consider - Industrial Relations Act 1967, s. 26(2)
Kesatuan Percantuman Pekerja-Pekerja Tenaga Nasional Berhad (KPPTNB) (Cawangan
Pulau Pinang) v. Tenaga Nasional Berhad
(Ong Geok Lan)
[2011] 2 ILR 352
INDEKS PERKARA
MAHKAMAH PERUSAHAAN
Prosidur - Tindakan - Permohonan YM untuk memfailkan rejoinder kepada
pernyataan jawapan syarikat - Sama ada patut dibenarkan - Faktor-faktor yang harus
diambil kira - Kesannya - Akta Perhubungan Perusahaan 1967, s. 30(5) dan Kaedah-Kaedah
Mahkamah Perusahaan 1967, Aturan-Aturan 9(3), 9(4) & 11
Tan Peck Fong lwn. Pacific Peninsula Textiles Sdn Bhd
(Roslan Mat Nor)
[2011] 2 ILR 345