|
LATEST CASES (ILR Issue 07 of 2019)
SUBJECT INDEX
CIVIL PROCEDURE
Judicial review – Appeal against – Application for judicial review against
decision of Employees’ Provident Fund (‘EPF’) – Employee lodged
complaint with EPF that employer’s portion of EPF was wrongly
deducted from gross incentive – EPF concluded employer’s act of
deducting portion from incentive payment not wrong and employer not
required to contribute to EPF for incentive payment – Whether decision
or outcome of investigation by public authority open to judicial review –
Whether court ought to entertain application – Whether judicial review
application proper mode for claim for monies under EPF contribution
Arab Malaysian Merchant Bank Bhd & Anor v. Tan Giap How &
Another Appeal
(Abang Iskandar, Badariah Sahamid & Mary Lim JJCA) [2019] 3 ILR 1  
CONTRACT OF EMPLOYMENT
Frustration of contract – Claimant terminated on medical grounds –
Whether his termination had been carried out with just cause and excuse
– Factors to consider – Evidence adduced – Evaluation of – Effect of –
Company’s actions towards him – What it had shown and whether it had
been reasonable – Whether the company had acted hastily – Whether
dismissal without just cause and excuse – Industrial Relations Act 1967,
s. 20(3)
Mohamed Haffeez Faidzal Abdul Raub v. Infineon Technologies (Malaysia)
Sdn Bhd
(Syed Noh Said Nazir) [2019] 3 ILR 156
Terms and conditions – Notice of termination – Claimant not issued show
cause or termination letter by the association – Whether his termination
had been verbal – Factors to consider – Evidence adduced – Effect of –
Whether it had constituted a termination simpliciter – Whether his
dismissal had been carried out with just cause and excuse
Dhev Kumar Raghavan @ Shagban v. Gabungan Dewan Perniagaan
Dan Perindustrian India Malaysia
(Jalaldin Hussain) [2019] 3 ILR 50
Terms and conditions – Notice of termination – Whether the termination
notices and show cause letters issued by COW1 against the claimants, had
been in breach of the company’s policies – Factors to consider – Evidence
adduced – Evaluation of – Effect of – Whether those notices had been
invalid
Zulhisham Ayob & Anor v. Perunding Pakar Media Sdn Bhd
(Sarojini Kandasamy) [2019] 3 ILR 105
DISMISSAL
Breach of company rules and policies – Fraud and dishonesty – Whether
the 1st and 2nd claimants’ actions, as alleged in the charges brought
against them, had constituted serious and grave misconduct thus justifying
their dismissals – Factors to consider – Evidence adduced – Effect of –
Claimants’ defence – Whether acceptable – Whether the company had
been justified in dismissing them – Whether dismissals without just cause
or excuse
Zulhisham Ayob & Anor v. Perunding Pakar Media Sdn Bhd
(Sarojini Kandasamy) [2019] 3 ILR 105
Constructive dismissal – Benefits – Shell Card benefit – Discontinuance of
– Whether it had amounted to a breach of a fundamental term of his
contract of employment – Factors to consider – Evidence adduced – Effect
of – Whether his claim for constructive dismissal ought to be allowed
Baladevan Nadarajan v. PPG Performance Coatings (M) Sdn Bhd
(Andersen Ong Wai Leong) [2019] 3 ILR 28
Constructive dismissal – Demotion – Claimant re-designated from the
position of Acting Plant Manager with the company to Production
Manager with PPG Coatings – Whether his re-designation had amounted
to a demotion – Factors to consider – Evidence adduced – Evaluation of
– Effect of – Implications of holding an “acting” position – Whether the
claimant had held a lien over his “acting” position – Intention of the
parties – Whether the company’s actions towards him had been
reasonable – Whether it had justified him walking out of his employment
and claiming constructive dismissal
Baladevan Nadarajan v. PPG Performance Coatings (M) Sdn Bhd
(Andersen Ong Wai Leong) [2019] 3 ILR 28
Misconduct – Whether the claimant had failed to inform the association
that he had been a bankrupt when he had been hired – Factors to consider
– Evidence adduced – Evaluation of – Effect of – Whether proven by the
association – Claimant’s defence – Whether acceptable – Effect of –
Whether the company had acted reasonably in dismissing him – Whether
dismissal with just cause and excuse
Dhev Kumar Raghavan @ Shagban v. Gabungan Dewan Perniagaan Dan
Perindustrian India Malaysia
(Jalaldin Hussain) [2019] 3 ILR 50
Misconduct – Whether the various misconduct of the claimants had
opened or potentially opened up the company to criminal charges –
Factors to consider – Evidence adduced – Evaluation of – Effect of
Zulhisham Ayob & Anor v. Perunding Pakar Media Sdn Bhd
(Sarojini Kandasamy) [2019] 3 ILR 105
Performance – Whether the claimant had been unable to perform the job
he had been hired for, due to his medical condition – Reasons for the same
– Whether successfully proven by the company – Evidence adduced –
Effect of – Whether it had justified his dismissal on medical grounds
Mohamed Haffeez Faidzal Abdul Raub v. Infineon Technologies (Malaysia) Sdn
Bhd
(Syed Noh Said Nazir) [2019] 3 ILR 156
EVIDENCE
Adverse inference – Non-production of material witnesses – Whether the
company had failed to produce material witnesses to prove their case –
Factors to consider – Effect of – Whether an adverse inference ought to be
drawn against it – Evidence Act 1950, s. 114(g)
Zulhisham Ayob & Anor v. Perunding Pakar Media Sdn Bhd
(Sarojini Kandasamy) [2019] 3 ILR 105
Documentary evidence – Charges – Whether some of the charges against
the 1st claimant had lacked material particulars – Factors to consider –
Effect of – Whether those charges had been void ab initio
Zulhisham Ayob & Anor v. Perunding Pakar Media Sdn Bhd
(Sarojini Kandasamy) [2019] 3 ILR 105
Witness – Conflicting evidence – Whether the 1st claimant had given
conflicting evidence during the course of the hearing – What it had shown
– Whether he had been a credible witness – Effect of
Zulhisham Ayob & Anor v. Perunding Pakar Media Sdn Bhd
(Sarojini Kandasamy) [2019] 3 ILR 105
INDUSTRIAL COURT
Jurisdiction – Claimants pleading reinstatement in their Statement of Case
but subsequently seeking monetary compensation at the hearing of the
matter – Reasons for the same – Whether that had ousted the IC’s
jurisdiction to hear the matter – Factors to consider – Effect of – Where
the IC derives its jurisdiction from – Industrial Relations Act 1967,
s. 20(3)
Zulhisham Ayob & Anor v. Perunding Pakar Media Sdn Bhd
(Sarojini Kandasamy) [2019] 3 ILR 105
Procedure – Pleadings – Union failing to plead the issue of bonus in its
Statement of Case – Whether that had precluded the issue from being
determined – Factors to consider – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan
Sekutu v. Oriental Summit Industries Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 175
LABOUR LAW
Judicial review – Appeal against – Judicial review of decision of Minister
of Human Resources (‘Minister’) – Dispute between bank and National
Union of Bank Employees (‘NUBE’) – Bank promoted and re-designated
staff – Staff prevented from continuing as members of NUBE after
promotion and re-designation – NUBE referred dispute to Director
General of Industrial Relations which then referred to Minister – Minister
decided that bank’s employees not employed in managerial, executive,
confidential or security capacities – Whether Minister exceeded scope of
authority – Whether there was procedural impropriety – Whether
statutory requirements complied with – Industrial Relations Act 1967,
s. 9(1A)
Bank Muamalat Malaysia Bhd v. Menteri Sumber Manusia, Malaysia & Ors
(Tengku Maimun Tuan Mat, Vernon Ong Lam Kiat &
Zaleha Yusof JJCA) [2019] 3 ILR 16
TRADE DISPUTE
Collective Agreement – Terms and conditions of service – Article on
bonus – Whether the company’s proposal to convert contractual bonus to
discretionary bonus ought to be allowed – Factors to consider – Effect of
– What the prevailing practice in industrial jurisprudence had been
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan
Sekutu v. Oriental Summit Industries Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 175
Collective Agreement – Terms and conditions of service – Article on
medically board out – Whether the hotel’s proposal that such payments
should be discretionary should be allowed – Factors to consider – Effect
of
Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar Dan Restoran Semenanjung
Malaysia v. Primula Beach Hotel Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 67
Collective Agreement – Terms and conditions of service – Article on paid
leave for trade union courses – Whether the union’s proposal that the hotel
is to be notified in writing one (1) week before the commencement of trade
union courses, should be allowed – Factors to consider – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran Semenanjung
Malaysia v. Primula Beach Hotel Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 67
Collective Agreement – Terms and conditions of service – Article on
retirement benefits – Whether the hotel’s proposal of 30 days of basic
salary for each completed year of service, on retirement, had been
reasonable – Factors to consider – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran Semenanjung
Malaysia v. Primula Beach Hotel Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 67
Collective Agreement – Terms and conditions of service – Article on
salary adjustment – Whether the union’s proposal for a 5% adjustment
across the board ought to be allowed – Factors to consider – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan
Sekutu v. Oriental Summit Industries Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 175
Collective Agreement – Terms and conditions of service – Article on
salary structure – Determination of a fair structure – What factors to take
into consideration
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan
Sekutu v. Oriental Summit Industries Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 175
Collective Agreement – Terms and conditions of service – Article on
salary structure, Appendix A & A1 – Whether union’s proposal of 8% had
been justified and reasonable – Factors to consider – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran Semenanjung
Malaysia v. Primula Beach Hotel Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 67
Collective Agreement – Terms and conditions of service – Article on
service charge – Whether the union’s proposal for a re-implementation of
it should be allowed – Factors to consider – Whether the hotel, by its
actions, had unilaterally changed the service charge system to a clean
wage one – Evidence adduced – Evaluation of – Effect of – Hotel’s
arguments in response including the raising of the doctrine of estoppel –
Whether could be accepted – What its actions had shown
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran Semenanjung
Malaysia v. Primula Beach Hotel Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 67
Collective Agreement – Terms and conditions of service – Article on sick
leave and hospitalisation – Whether the union’s proposal for the capping
of outpatient treatment should be allowed – Factors to consider – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran Semenanjung
Malaysia v. Primula Beach Hotel Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 67
Collective Agreement – Terms and conditions of service – Whether the
company could give instructions to Assistant Managers (‘AMs’), who are
members of the union, to carry out Managers’ work in relation to the Drop
Box Collection (‘DBC’) function or any additional duties, tasks and/or
assignments that are managerial in nature – Factors to consider – Evidence
adduced – Effect of – What the company should have done
Kesatuan Eksekutif Resort World Bhd v. Genting Malaysia Berhad
(Anna Ng Fui Choo) [2019] 3 ILR 38
Collective Agreement – Terms and conditions of service – Whether the
union had been recognised by the company – Factors to consider –
Evidence adduced – Effect of
Kesatuan Eksekutif Resort World Bhd v. Genting Malaysia Berhad
(Anna Ng Fui Choo) [2019] 3 ILR 38
Collective Agreement – Terms and conditions of service – Whether the
union had been the successor of the in-house union – Whether it had been
bound by the collective agreements entered into by the latter with the hotel
– Factors to consider – Effect of – Determination of which collective
agreement had been under discussion – Industrial Relations Act 1967,
s. 17
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran Semenanjung
Malaysia v. Primula Beach Hotel Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 67
|