| BULLETIN 07/2016 | |
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LATEST CASES (ILR Issue 07 of 2016) SUBJECT INDEX CONTRACT OF EMPLOYMENT Frustration of contract - Claimant absent from work for long periods of time due to her medical condition - Whether she had been able to substantiate it by her evidence - Factors to consider - Effect of - Bank's actions towards her - Whether reasonable - Whether the bank's actions in deeming her contract of employment as frustrated had been reasonable - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3) Frustration of contract - Whether the claimant's excessive absences from work had made the performance of her 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) Terms and conditions - Frustration of contract - Company changing the IBM AS/400 password and blocking his access to the AS/400 server - Reasons for the same - Explanations of the company - Whether could be accepted - Whether the claimant had required the passwords to conduct his work - Evidence adduced - Evaluation of - Effect of - Whether the company by its actions had frustrated its contract of employment with him Terms and conditions - Resignation - Whether the claimant had been forced to resign - Factors to consider - Evidence adduced - Claimant's conduct towards the company after resigning - What it had shown - Effect of - Whether the claimant had voluntarily resigned DISMISSAL Absenteeism - Claimant going on leave although aware that it had not been approved - Whether the claimant had been absent without leave - Factors to consider - Effect of - What the claimant should have done Breach of company rules and policies - Claimant sending an e-mail to Isra from the respondent company's e-mail account - Whether it had been in breach of its e-mail user policies - Factors to consider - Effect of - Perusal of the contents of the e-mail - Whether it had justified the company dismissing her - Whether dismissal without just cause and excuse Breach of company rules and policies - Negligence - Gross negligence - Claimant allowing the nurse to perform the Arterial Blood Gas procedure on the patient - Whether he should have performed it himself - Whether it had been against company policy for the nurse to perform it - Factors to consider - What the industry norm had been - Whether the claimant had been negligent in carrying out his duty - Evaluation of the evidence adduced - Effect of - What the claimant should have done - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Negligence - Gross negligence - Claimant failing to visit and physically examine the patient before prescribing treatment - Whether he had been negligent in the carrying out of his duties - Factors to consider - Evidence adduced - Effect of - Whether charge proven by the company - Whether it had been a serious misconduct - Claimant's defence - Whether acceptable - Position held by the claimant - Whether his dismissal had been justified - Whether dismissal without just cause and excuse Breach of company rules and policies - Negligence - Whether the claimant had mistakenly reported to COW4 on the malfunctioning of the mast head lights - Evidence adduced - Evaluation of - Effect of - Whether the charge had been proven by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Theft - Claimant stealing the bus fares of 15 passengers - Company imposing a penalty on him - Whether the company had needed his consent before imposing the penalty - Factors to consider - Perusal of the claimant's contract of employment - Effect of - Claimant's second offence - His conduct in the past - Whether he had impliedly consented to the said deduction from his salary as a penalty Breach of company rules and policies - Theft - Whether the claimant had stolen the bus fares of 15 passengers - Evidence adduced - Effect of - Whether it had been a breach of the company's policy - Whether he had been aware that it had been against the company's policy - His explanations - Whether could be accepted - The company's actions towards him - Company merely imposing a penalty on him and asking him to report to work - Claimant failing to report to work - Whether his actions had shown an abandonment of his employment with the company - Factors to consider Breach of company rules and policies - Whether the claimant had breached the respondent company's VMP policy - Perusal of the policy - Effect of - What the respondent company should have done - Whether the respondent company had succeeded in proving the charge against her - Factors to consider - Evidence adduced - Effect of - Whether dismissal with just cause and excuse Constructive dismissal - Change in job function - Whether there had been a change in the job functions of the claimant after the reorganisation of the company - Factors to consider - Evidence adduced - Effect of - Company's explanations - Whether could be accepted - Whether there had been a change to the way the ISD had carried out its work - Whether it had amounted to a breach of a fundamental term of his contract of employment - Whether it had been sufficient to claim constructive dismissal - Whether the claimant had affirmed the company's actions - Claimant walking out of employment only three years later - Effect of Constructive dismissal - Change in job functions - Whether there had been a change in the line of reporting after the reorganisation - Factors to consider - Evidence adduced - Effect of - Whether the claimant and the staff of the ISD had been confused by the change to the line of reporting - Whether proven by the claimant - Whether it had amounted to a fundamental breach that had gone to the root of the contract of employment between the parties - Whether it had justified him claiming constructive dismissal Constructive dismissal - Claimant's seating in the office changed - Whether it had affected the conducive working environment of the office for her - Factors to consider - Effect of - Whether it had justified her claiming constructive dismissal and walking out of her employment Constructive dismissal - Company failing to inform him of the outcome of the DI until well over three months later - Whether it had amounted to a fundamental breach of the contract of employment - Factors to consider - Position held by the claimant in the company - Effect of - Whether the claimant had been reasonable in assuming he had been constructively dismissed - What the company should have done - Whether dismissal without just cause and excuse Constructive dismissal - Demotion - Whether the claimant had been demoted to the position of conveyancing clerk in the company - Evidence adduced - Effect of - Scope of her duties - Whether it had included the checking of the status of inactive files (`cold storage files') - Perusal of her contract of employment - Whether she had adduced cogent evidence to show mala fide intent on the part of the company - Whether the company's actions had been a breach of a fundamental term of her contract of employment - Factors to consider - Effect of Constructive dismissal - Demotion - Whether the claimant had been replaced as the Head of ISD - Evidence adduced - Effect of - Position held by the claimant in the company - Whether he had succeeded in proving demotion - Whether it had justified him walking out of his employment claiming constructive dismissal Constructive dismissal - Salary - Whether the claimant had been forced to accept the mutual separation payment from the company - Factors to consider - Effect of - Whether he had been paid his February salary upfront as alleged - Date of the claimant's departure from the company - Whether his contention had been tenable - What the evidence had shown - Whether the claimant and the company had mutually agreed to part ways - Whether the claimant had walked out of his employment Constructive dismissal - Salary - Whether the claimant's salaries for November and December 2012 had been paid - Evidence adduced - Effect of - Whether she had been entitled to commission payments as per her contract of employment - Perusal of her contract of employment - Claimant not the only one not receiving the commissions - Company's explanations - Whether could be accepted - Claimant's actions towards the company - What it had shown - Whether she had proven her allegation against the company - Whether the company had breached a fundamental term of the claimant's contract of employment - Whether the claimant had been constructively dismissed - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Constructive dismissal - Status - Claimant no longer given payslips and memos to distribute to the staff of the ISD - Company's explanations - Whether could be accepted - Evidence adduced - Effect of Constructive dismissal - Status - Whether the claimant had been hired as a Sales and Marketing Personnel in the company right from the start - Evidence adduced - Factors to consider - Effect of - Whether COW1 had dismissed him - Whether that had constituted a fundamental breach going to the root of his contract of employment - Effect of - Whether the claimant had succeeded in proving constructive dismissal - Whether dismissal without just cause and excuse Constructive dismissal - Whether COW1 had directly asked the claimant to stop work numerous times - Evidence adduced - Effect of - Whether the allegation had been proven by the claimant against the company - Whether the company had breached a fundamental term of the claimant's contract of employment - Whether the claimant had been constructively dismissed - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Constructive dismissal - Whether the claimant had been overworked - Claimant the only one in the ISD department complaining of this - Whether proven by him - Evidence adduced - Effect of - Whether it had been the management's prerogative whether or not to replace staff - Factors to consider Constructive dismissal - Whether proven by the claimant - Evidence adduced - Effect of - Whether she had been constructively dismissed - Factors to consider Constructive dismissal - Whether the company had employed new staff to take over the position of the claimant - Evidence adduced - Effect of - Whether the allegation had been proven by the claimant Insubordination - Claimant handing her constructive dismissal letter to the Office Manager and walking out of her employment - Whether it had shown insubordinate behaviour on her part - Claimant's years of service with the company - What she should have done - Whether her actions had shown a lack of discipline on her part - Factors to consider - Effect of Insubordination - Claimant taking leave although his leave had not been approved by COW1 - Whether it had amounted to insubordinate behaviour - Factors to consider Insubordination - Whether the claimant had failed to perform ballasting operations as per the instructions given by COW1 - Evidence adduced - Effect of - Whether the company had succeeded in proving this charge against him - Whether it had justified his dismissal - Whether dismissal without just cause and excuse Performance - Unsatisfactory performance - Whether the claimant had been a poor performer - Evidence adduced - Evaluation of - Company's actions towards him - Whether the company had succeeded in proving that the claimant had been a poor performer - No show cause or warning letters issued to him - Effect of DOMESTIC INQUIRY Absence of - Although not fatal to the respondent company's case, whether one should have been held - Factors to consider EVIDENCE Admissions - Claimant admitting to stealing the bus fares of the 15 passengers - Effect of Adverse inference - Whether an adverse inference ought to be drawn against the company for failing to call the MD - Whether the MD had been a material witness - Factors to consider - Effect of - Evidence Act 1950, s. 114(g) Documentary evidence - Whether the final warning letter issued by the company had contained irregularities - Whether the irregularities had rendered the final warning letter null and void - Factors to consider - Effect of Witness - COW1 called as a witness for the company - COW1 no longer a partner of the company - Whether he had been authorised to give evidence on behalf of the company - Factors to consider - Effect of - Whether his actions of giving evidence had conflicted with the BC Ruling - Whether the Industrial Court had been the right forum to bring the matter up - What the claimant should have done - Whether COW1's evidence had been pertinent - Factors to consider - The Legal Profession Act 1976, s. 88A, Bar Council Ruling 1997 and The Industrial Relations Act 1967, s. 20(3) Witness - Credibility - Whether COW1 had been a credible witness - COW1 struck off the Roles of Advocates and Solicitors of the High Court of Malaya - Effect of - Whether the evidence given by COW1 had been consistent and cogent throughout the hearing of the matter - Factors to consider - Evidence adduced - Effect of Witness - Credibility - Whether the claimant or COW1 had been a credible witness - Factors to consider - Effect of Witness - Credibility - Whether the claimant or the witnesses for the company had been more credible - Factors to consider - Evidence adduced - Evaluation of - Effect of Witness - Material contradictions and inconsistencies - Whether the claimant's evidence had been riddled with many inconsistencies and had casted doubt on her credibility - Factors to consider - Effect of Witness - Whether the evidence of CLW1 and CLW2 had been an afterthought - Whether their evidence could be believed - Factors to consider - Effect of Witness - Whether the witness statements of the company's witnesses had been self-serving - Factors to consider - Effect of TRADE UNION Respondent bank claiming that union had to be granted recognition pursuant to s. 9 of the IRA before it could represent its members - Whether it had any basis - Perusal of the IRA and TUA - Whether the respondent bank's contention had been correct - Factors to consider - Industrial Relations Act 1967, ss. 9, 13, 18, 19B & 30(5) and Trade Union Act 1959, s. 2 Respondent bank disallowing union officials to represent the workman in their official capacities at the DI - Reasons for the same - Whether the union had been granted recognition at the material time - Factors to consider - Chronology of events - Effect of - Whether the respondent bank's actions had been a breach of the principles of natural justice and had denied the union and the workman their rights Whether "registration" and "recognition" had been independent issues - What each one had meant INDEKS PERKARA KONTRAK PERKHIDMATAN Terma dan syarat - Notis penamatan - Sama ada YM telah diberhentikan secara `summarily' - Keterangan yang dikemukakan - Kesannya Terma dan syarat - Perpindahan - Surat perlantikan memberikan hak kepada syarikat responden untuk menukarkan beliau dari satu tempat ke satu tempat yang lain - YM merayu terhadap perpindahannya ke Pulau Pinang - Sama ada rayuan beliau telah ditimbang oleh syarikat responden - Keterangan yang dikemukakan - Kesannya - Sama ada arahan pertukaran YM telah dijalankan oleh syarikat responden dengan niat mala fide - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab PEMBUANGAN KERJA Ketidakhadiran - Sama ada YM gagal untuk hadir bekerja untuk dua hari berturut-turut - Keterangan yang dikemukakan - Kesannya - Sama ada berjaya dibuktikan oleh syarikat responden - Tiada surat amaran dikeluarkan terhadap YM - Kesannya - Sama ada YM telah dibuang kerja secara adil dan bersebab - Akta Kerja 1955, s. 15(2) Ketidakpatuhan terhadap peraturan dan polisi syarikat - Kecuaian - Sama ada YM cuai dalam menjalankan tanggungjawabnya kepada syarikat responden - Faktor-faktor yang harus diambil kira - Keterangan yang dikemukakan - Kesannya - Apa yang sepatutnya dilakukan oleh beliau Ketidakpatuhan terhadap peraturan dan polisi syarikat - Sama ada YM berada dalam situasi konflik kepentingan dengan syarikat responden - Sama ada syarikat responden berjaya membuktikan salah laku-salah laku tersebut terhadap YM - Keterangan yang dikemukakan - Kesannya - Penjelasan YM - Sama ada dapat diterima - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab Ketidakpatuhan terhadap peraturan dan polisi syarikat - Sama ada YM telah melanggar kewajipan fidusiarinya kepada syarikat responden - Sama ada syarikat responden berjaya membuktikan salah laku-salah laku tersebut terhadap YM - Keterangan yang dikemukakan - Kesannya - Pembelaan YM - Sama ada dapat diterima - Faktor-faktor yang harus diambil kira - Sama ada salah laku-salah laku YM merupakan salah laku-salah laku yang serius yang mewajarkan pembuangan kerjanya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab Salah laku - Sama ada salah laku YM berjaya dibuktikan oleh syarikat responden - Keterangan yang dikemukakan - Kesannya - Tindakan yang diambil oleh syarikat responden terhadap YM - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab |
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