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LATEST CASES (ILR Issue 6 of 2014) SUBJECT INDEX ADMINISTRATIVE LAW Judicial review - Certiorari - Application for - Application to quash decision of Industrial Court - Industrial Court dismissed claim for sexual harassment - Whether Industrial Court committed errors of law - Whether justified in excluding respondent from 'in camera' proceedings in Industrial Court CONTRACT OF EMPLOYMENT Terms and conditions - Retirement age - Company's Handbook containing a clause on the age of retirement - Claimant being given the Company's Handbook after he had retired - Claimant not objecting to contents - Whether he had accepted its contents by his conduct - Effect of - Whether it had bound him - Factors to consider - Whether the claimant had been aware of it - Factors to consider - Evidence adduced - Claimant's conduct after being given the Company's Handbook - Effect of - Whether his retirement had been proper - Whether the claimant had been dismissed Terms and conditions - Retirement age - Whether the claimant had been verbally informed that he could work until the end of January 2013 - Evidence adduced - Whether proven by the claimant - Effect of Terms and conditions - Retirement benefits - Whether the claimant had been entitled to it - No documents adduced to show such an agreement between the parties - Whether it could be claimed by the claimant Terms and conditions - Termination and lay-off benefits - Whether the claimant had been entitled to it - Claimant not covered by the Employment Act - Effect of Type of - Fixed-term contract - Whether the claimant had been employed under a fixed-term contract - Factors to consider - Effect of - Intention of the company from the evidence adduced Type of - Fixed-term contract - Whether the claimant had been forced to sign the extension to his contract - Evidence adduced - Effect of - Claimant not raising any objection to it until these proceedings - What it had shown - Whether the extension had been void and thus unenforceable - Factors to consider - Companies Act 1965, s. 35(4)(b) and Contracts Act 1950, s. 24 Type of - Fixed-term contract - Whether the claimant's fixed-term contract had come to an end - Factors to consider - Whether he had been dismissed - Whether dismissal without just cause and excuse Type of - Whether the claimant had entered into genuine fixed term contracts - Factors to consider - Company not renewing his contract after the expiry of the 6 Month Extension - Whether the claimant had been dismissed - Whether the employment relationship between the parties had come to an end DISMISSAL Absenteeism - Whether the claimant had been absent without leave - Evidence adduced - Evaluation of - Whether proven by the company - Whether the company had been justified in dismissing him - Factors to consider - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Insubordination - Claimant reassigned to new section - Claimant not reporting for duty - Reasons for the same - Whether it had excused her actions - Effect of - Company's actions towards her - Whether it had evinced any mala fide intent - Whether the claimant had been victimised - Evidence adduced - Evaluation of - Whether charge proven by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Claimant exercising his discretion to overwrite the Vehicle Examiner's decision - Whether he had acted without authority - Evidence adduced - Effect of - Claimant's actions - Whether it had been transparent - Whether it had been in compliance with JPJ - Effect of - Claimant's explanations - Whether it fully exculpated him - Whether proven by the company - Whether dismissal without just cause and excuse Misconduct - Claimant exercising his discretion to overwrite the Vehicle Examiner's decision - Whether the discretion had been exercised without authority - Factors to consider - Whether the company's Standard Operating Procedure had been followed - Effect of - Company's actions towards him - What the company should have done - Whether the company had behaved as a reasonable employer would have - Whether dismissal without just cause and excuse Misconduct - Claimant refusing to go on transfer - Whether the company had a right to transfer her - Perusal of her terms and conditions of service - Whether the transfer order had varied her terms and conditions of service - Evidence adduced - Effect of - Whether she had been given ample notice of her transfer - Conduct of the claimant upon receiving the transfer order - What she should have done - Effect of - Conduct of the company towards her - Effect of - Whether dismissal without just cause and excuse EVIDENCE Admissions - Claimant admitting to the misconduct - Effect of Documentary evidence - Charge sheet, show cause letter and dismissal letter issued by COW3 alone - COW3 the judge and prosecutor - Effect of - Whether COW3 had followed the company's SOP - Factors to consider - What he should have done - Whether dismissal had been too harsh under the circumstances - Factors to consider Documentary evidence - Dismissal letter not disclosing which charge the claimant had been found guilty of - Effect of - Whether the dismissal letter had been defective Documentary evidence - Findings of the inquiry panel not produced in court - Inference to be drawn Documentary evidence - Union seeking to expunge the Extended Account Schedule Prime City Hotel Period 1 July 2011 to 30 June 2012 - Reasons for the same - Whether future possibilities ought to be taken into account by the court - Factors to consider - Effect of - Whether the expunging of the document ought to be allowed Witnesses - Credibility - Whether the company witnesses had been untruthful - Factors to consider INDUSTRIAL COURT Procedure - Pleadings - Hotel failing to plead distribution scheme on service charge in Statement of Reply - Effect of - Intention of pleadings Remedies - Punishment - Mitigating factors - Claimant serving the company for 25 years - Whether dismissal had been too harsh under the circumstances - Factors to consider - Effect of LABOUR LAW Employment - Dismissal - Sexual harassment by leading steward against crew - Domestic inquiry - Right to fair trial - Cross-examination conducted 'in camera' - Whether there was procedural impropriety in proceedings before Industrial Court - Whether respondent accorded fair hearing Trade union - Eligibility to membership - Whether a trade union member who has been dismissed from employment remains a member pending final decision on challenge against dismissal - Industrial Relations Act 1967, s. 20 - Trade Unions Act 1959, s. 26(1A) NON-COMPLIANCE Award - Complainant seeking interest on the Award Sum - Whether the Court had the power to make such an order - Factors to consider - Evaluation of the legislation and its intention - Industrial Relations Act 1967 Award - Whether there had been non-compliance by the respondent - Factors to consider - Effect of - Whether there had been special circumstances to justify varying the said award - Evidence adduced - Whether compliance ought to be ordered - Industrial Relations Act 1967, s. 56(1) STATUTORY INTERPRETATION Aids to construction - Hansard - Recourse by court when interpreting statute - Trade Unions Act 1959, s. 26(1A) TRADE DISPUTE Collective Agreement - Article on salary structure - Whether the union's proposal had merit - Factors to consider - Whether the union's proposal ought to be allowed Collective Agreement - Article on service charge - Whether the fundamental terms on salary and service charge could be unilaterally changed by the hotel - Factors to consider - Effect of - Whether the hotel had been bound by those articles WORDS AND PHRASES Workman - Definition of - Whether a workman who has been dismissed from employment remains a workman pending final decision on challenge against dismissal - Industrial Relations Act 1967, s. 20 - Trade Unions Act 1959, s. 26(1A) INDEKS PERKARA KETERANGAN Saksi - Keterangan yang bercanggah - Dakwaan gangguan seksual - Keterangan COW1 mengandungi percanggahan dan ketidakpastian berkenaan insiden-insiden tersebut - Sama ada keterangan COW1 memerlukan keterangan sokongan - Kesannya - COW1 membuat laporan polis - Sama ada membuktikan bahawa salah laku tersebut telah berlaku MAHKAMAH PERUSAHAAN Prosedur - Tindakan - Dua tarikh penamatan yang berbeza dalam tindakan ini - Kesannya - Apa yang mahkamah harus lakukan - Akta Perhubungan Perusahaan, s. 30(5) PEMBUANGAN KERJA Salah laku - Gangguan seksual - YM didakwa melakukan gangguan seksual terhadap COW2 - Sama ada dibuktikan oleh syarikat - Keterangan yang dikemukakan - Kesannya - Tiada aduan atau laporan dibuat oleh COW2 - Sebabnya - Sama ada dapat diterima Salah laku - Gangguan seksual - YM dituduh melakukan gangguan seksual terhadap COW1 - Sama ada dibuktikan oleh syarikat responden - Keterangan yang dikemukakan - Kesannya - Sama ada syarikat responden mempunyai niat mala fide dalam memberhentikan perkhidmatan YM - Sama ada pembuangan kerja YM dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) Salah laku - Gangguan seksual - YM dituduh melakukan gangguan seksual terhadap COW1 dengan meminjamkan sebuah buku kepadanya - Sama ada dibuktikan oleh syarikat responden - Isi kandungan buku tersebut - Perlakuan COW1 setelah menerima buku tersebut - Kesannya - Apa yang seharusnya dilakukan oleh COW1 Salah laku - Gangguan seksual - YM menghantar SMS ILU kepada kakitangannya - Penjelasan beliau - Sama ada boleh diterima - Sama ada berjaya disangkal oleh syarikat responden - Keterangan yang dikemukakan - Sama ada salah laku ini berjaya dibuktikan oleh syarikat responden - Sama ada pembuangan kerja YM dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) Salah laku - YM didakwa membaling stapler kepada COW8 - Sama ada berjaya dibuktikan oleh syarikat responden - Kesannya - Sebab YM membaling stapler tersebut - Sama ada kelakuan YM tersebut dapat dikatakan sebagai suatu salah laku - Faktor-faktor yang harus diambil kira – Kesannya |
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