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LATEST CASES (ILR Issue 6 of 2017)
SUBJECT INDEX
CONTRACT OF EMPLOYMENT
Notice of termination - Claimant given a letter of abandonment of employment and then a dismissal letter - Whether he had been summarily dismissed - Factors to consider - Evidence adduced - Effect of - Company's actions towards him - What it had shown
Afzal Amran v. Etiqa Insurance Berhad
(Sarojini Kandasamy) [2017] 2 ILR 512
DISMISSAL
Absenteeism - Whether the claimant had been absent without leave on the material days - Evidence adduced - Effect of - Claimant's explanations - Whether acceptable - What the claimant should have done - Whether he had been absent from work without leave - Whether charge proven by the company - Claimant's position and length of service with the company - Whether he had taken his employment with the company seriously - Whether his misconduct had justified his dismissal - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Afzal Amran v. Etiqa Insurance Berhad
(Sarojini Kandasamy) [2017] 2 ILR 512
Breach of company rules and policies - Demand for monies - Whether the claimant had demanded RM600 from COW1's incentive payment - Factors to consider - Evidence adduced - Effect of - Whether proven by the company - Whether it had been a serious misconduct - Position held by the claimant - Whether he had been aware of the company's COC - Claimant's defence - Whether acceptable - Whether the company's actions towards him had been reasonable - Whether his dismissal had been justified - Whether dismissal without just cause and excuse
Khu Siong Ming v. LF Asia Sebor (Sarawak) Sdn Bhd
(Ani Ak Solep) [2017] 2 ILR 598
Constructive dismissal - Benefits - Whether the claimant had been entitled to his allowances and the cost of the materials purportedly purchased on behalf of the company - Factors to consider - Effect of
Tharmanandan Thangamuthu v. Alam Etikaa Resources (M) Sdn Bhd
(Jamil Aripin) [2017] 2 ILR 631
Constructive dismissal - Salary - Claimant delaying in claiming constructive dismissal - Reasons for the same - Whether he had, by his conduct, waived or accepted the breach - Factors to consider - Evidence adduced - Effect of - Whether he had been constructively dismissed by the company - Whether dismissal without just cause and excuse
Tharmanandan Thangamuthu v. Alam Etikaa Resources (M) Sdn Bhd
(Jamil Aripin) [2017] 2 ILR 631
Constructive dismissal - Salary - Company failing to pay the claimant's salaries for six months - Claimant given an advancement - Whether it could be regarded as salary - Factors to consider - Effect of
Tharmanandan Thangamuthu v. Alam Etikaa Resources (M) Sdn Bhd
(Jamil Aripin) [2017] 2 ILR 631
Constructive dismissal - Salary - Company failing to pay the claimant's salaries for six months - Whether it had amounted to a breach of a fundamental term of his contract of employment - Whether it had entitled him to walk out of his employment and claim constructive dismissal - Effect of
Tharmanandan Thangamuthu v. Alam Etikaa Resources (M) Sdn Bhd
(Jamil Aripin) [2017] 2 ILR 631
Constructive dismissal - Salary - Whether there had been a unilateral reduction of the claimant's salary - Factors to consider - Evidence adduced - Effect of
Tharmanandan Thangamuthu v. Alam Etikaa Resources (M) Sdn Bhd
(Jamil Aripin) [2017] 2 ILR 631
Performance - Unsatisfactory performance - Whether the claimant had performed satisfactorily - Factors to consider - Evidence adduced - Effect of - Whether he had failed to discharge his duties to the bank satisfactorily - Position held by the claimant in the bank - Claimant's defence - Whether acceptable - Whether the bank had given him opportunities to improve - Whether he had availed himself to those opportunities - Effect of - Bank's actions towards him - Whether bona fide - Whether the bank had been justified in dismissing him - Whether dismissal without just cause or excuse
Kamal Azizul Aziz v. AmBank (M) Berhad
(Sarojini Kandasamy) [2017] 2 ILR 571
Probationer - Claimant put on probation for a period of 40 months - Whether it had constituted an unfair labour practice or an act of oppression by the bank - Factors to consider - Effect of - Reasons why his probation had been extended for that period of time - Whether it had been justified - Whether the bank's intentions in so acting had been genuine
Kamal Azizul Aziz v. AmBank (M) Berhad
(Sarojini Kandasamy) [2017] 2 ILR 571
EVIDENCE
Adverse inference - Whether one ought to be drawn against the company for its failure to call Dzahirah Harun and Ismadee Ismail - Factors to consider - Evidence Act 1950, s. 114(g)
Afzal Amran v. Etiqa Insurance Berhad
(Sarojini Kandasamy) [2017] 2 ILR 512
Documentary evidence - Claimant not mentioning about the medical certificates in his pleadings filed in Court, but mentioning it orally at the hearing of the matter - Which evidence had been more contemporaneous to the events that had occurred - Factors to consider - Effect of - Whether reliance on the oral evidence tendered during the hearing should be minimal
Afzal Amran v. Etiqa Insurance Berhad
(Sarojini Kandasamy) [2017] 2 ILR 512
Witness - Credibility - Whether CLW1 had been a credible witness - Factors to consider
Afzal Amran v. Etiqa Insurance Berhad
(Sarojini Kandasamy) [2017] 2 ILR 512
Witness - Material contradictions and inconsistencies - Claimant's evidence containing inconsistent and evasive answers - Whether it had impinged on his credibility - Factors to consider
Afzal Amran v. Etiqa Insurance Berhad
(Sarojini Kandasamy) [2017] 2 ILR 512
INDUSTRIAL COURT
Jurisdiction - Claimant seeking compensation and not reinstatement in his pleadings - Whether it had ousted the Industrial Court's jurisdiction to hear the case - Factors to consider - Evaluation of case laws and legislation - Effect of - Whether he had been entitled to backwages in such circumstances - Industrial Relations Act 1967, ss. 20(1) and 20(3)
Khu Siong Ming v. LF Asia Sebor (Sarawak) Sdn Bhd
(Ani Ak Solep) [2017] 2 ILR 598
Procedure - Pleadings - Amendment of pleadings - Hotel seeking to amend its Statement of Case to include an alternative relief - Whether it ought to be allowed - Factors to consider - Effect of - Duty of the Industrial Court in considering amendment applications - Industrial Relations Act 1967, ss. 29(a) & 30(5)
Asia Garden Sdn Bhd (Holiday Inn Resort Penang) v. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar Dan Restoran Semenanjung Malaysia
(Anna Ng Fui Choo) [2017] 2 ILR 650
LABOUR LAW
Trade union - Collective agreement - Respondent underwent redevelopment and repositioning exercise of old hotel - Signed collective agreement with trade union - Parties subsequently entered into supplementary agreement - Whether respondent allowed to unilaterally impose new terms of employment - Interpretation of clauses in supplementary agreement - Intention of parties - Whether collective agreement terminated upon signing of supplementary agreement - Whether collective agreement binding upon parties - Industrial Relations Act 1967, ss. 17 & 30(5)
National Union Of Hotel, Bar And Restaurant Workers Peninsular Malaysia v. Shangri-La Hotels (Malaysia) Bhd
(Zulkefli Ahmad Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Hasan Lah FCJ, Abu Samah Nordin FCJ & Zaharah Ibrahim FCJ) [2017] 2 ILR 433
TRADE DISPUTE
Collective Agreement - Terms and conditions of service - Article on allowances - Whether 'Transport Allowance' ought to be granted to the company's employees in Perai - Factors to consider - Evidence adduced - Effect of
Kesatuan Pekerja-Pekerja Perkilangan Perusahaan Makanan v. Soon Soon Oilmills Sdn Bhd
(Fredrick Indran XA Nicholas) [2017] 2 ILR 446
Collective Agreement - Terms and conditions of service - Article on retirement - Whether the union's proposal for providing flexibility in relation to the retirement age should be accepted - Factors to consider - Evidence adduced - Effect of - Whether the parameters for calculating retirement benefits should be revised - Factors to consider - Effect of
Kesatuan Pekerja-Pekerja Perkilangan Perusahaan Makanan v. Soon Soon Oilmills Sdn Bhd
(Fredrick Indran XA Nicholas) [2017] 2 ILR 446
Collective Agreement - Terms and conditions of service - Article on salary structure - Whether the annual increment of the employees should be based on 5% of their basic salaries - Factors to consider - Evidence adduced - Hotel not objecting to the union's proposal - Effect of
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v. New York Hotel Johor Bahru (Imej Klasik Sdn Bhd)
(Anna Ng Fui Choo) [2017] 2 ILR 538
Collective Agreement - Terms and conditions of service - Article on salary structure - Whether there had been a justification for an increase in the 'rate for the job' for the various job grades in the CA - Factors to consider - Evidence adduced - Effect of - Whether the Court should intervene on what had previously been agreed upon between the parties - Factors to consider - Whether an arbitrary implementation of a salary adjustment of any figure ought to be allowed - Whether an ex-gratia payment ought to be allowed
Kesatuan Pekerja-Pekerja Perkilangan Perusahaan Makanan v. Soon Soon Oilmills Sdn Bhd
(Fredrick Indran XA Nicholas) [2017] 2 ILR 446
Collective Agreement - Terms and conditions of service - Article on salary structure - Whether the hotel could use the service charge points to top up the minimum wages of its employees - Factors to consider - Evidence adduced - Evaluation of case laws - Effect of - Whether the hotel ought to refund the deducted service charge points back to the employees concerned - Industrial Relations Act 1967, s. 30(6)
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v. New York Hotel Johor Bahru (Imej Klasik Sdn Bhd)
(Anna Ng Fui Choo) [2017] 2 ILR 538
Collective Agreement - Terms and conditions of service - Article on salary structure and steps - Union proposing a starting basic salary of RM900.00 with a graduated salary structure of 17 steps - Hotel not objecting to the union's proposal - Effect of - Whether the hotel had possessed the financial capacity to pay - Factors to consider - Evidence adduced - Evaluation of - Whether the union's proposal ought to be allowed
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v. New York Hotel Johor Bahru (Imej Klasik Sdn Bhd)
(Anna Ng Fui Choo) [2017] 2 ILR 538
Collective Agreement - Terms and conditions of service - Date of commencement of the CA - Factors to consider - Effect of - Industrial Relations Act 1967, s. 30(7)
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v. New York Hotel Johor Bahru (Imej Klasik Sdn Bhd)
(Anna Ng Fui Choo) [2017] 2 ILR 538
INDEKS PERKARA
PENAMATAN PERKHIDMATAN
Ketidakpatuhan terhadap peraturan dan polisi syarikat - Ancaman - Sama ada YM telah mengancam dan mengugut COW1 - Faktor-faktor yang harus diambil kira - Sama ada berjaya dibuktikan oleh pihak hospital - Keterangan yang dikemukakan - Kesannya - Pembelaan YM - Sama ada dapat diterima - Sama ada salah laku ini mewajarkan pembuangan kerjanya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab
Mohd Saiful Arbi Radzuan lwn. Hospital Fatimah
(Rasidah Chik) [2017] 2 ILR 612
Ketidakturutan - YM mendaftarkan dirinya untuk bekerja lebih masa, bertentangan dengan arahan pegawai atasannya - Sama ada ianya merupakan satu salah laku yang serius - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada pertuduhan ini berjaya dibuktikan oleh pihak hospital terhadapnya - Keterangan yang dikemukakan - Kesannya - Alasan YM - Sama ada dapat diterima - Sama ada salah laku ini mewajarkan pembuangan kerjanya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab
Mohd Saiful Arbi Radzuan lwn. Hospital Fatimah
(Rasidah Chik) [2017] 2 ILR 612
SIASATAN DALAMAN
Kecacatan prosedur - Sama ada prosiding SD telah dijalankan secara teratur dan telah mematuhi prinsip keadilan asasi - Sama ada nota SD adalah tepat - Faktor-faktor yang harus diambil kira – Kesannya
Mohd Saiful Arbi Radzuan lwn. Hospital Fatimah
(Rasidah Chik) [2017] 2 ILR 612
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