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LATEST CASES (ILR Issue 8 of 2017)
SUBJECT INDEX
CONTRACT OF EMPLOYMENT
Terms and conditions - Notice of termination - Claimant handed termination letter and then during his notice period, issued a dismissal letter - Whether the second letter had been redundant - Factors to consider - Effect of - When he had actually been dismissed
Martin Lawrence Burke v. Eco Refractory Products Sdn Bhd
(Rosenani Abd Rahman) [2017] 3 ILR 391
Type of - Fixed-term contract - Claimant's fixed-term contract terminated prematurely - Effect of - Whether it had amounted to a dismissal - Factors to consider - Evidence adduced - Effect of
Ab Razak Omar v. QSR Brands (M) Holdings Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2017] 3 ILR 296
DISMISSAL
Breach of company rules and policies - Conflict of interest - Claimant involved in Tutto but failing to disclose it to the company - Whether there had been a requirement for him to disclose it - Perusal of his Letter of Appointment - Effect of - Whether this charge had successfully been proven by the company against him - Evidence adduced - Effect of - Company's actions - Whether it had amounted to condonation - Factors to consider - Effect of - Whether his dismissal had been carried out with just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Wong Chen Feng v. Wonderful Compound Sdn Bhd
(Duncan Sikodol) [2017] 3 ILR 254
Breach of company rules and policies - Negligence - Claimant failing to inform management or the Group HR of the misappropriation of monies by Mohaini at the first available instance - Reasons for the same - Effect of - His explanations - Whether acceptable - Claimant holding the position as the Head of HR - Effect of - Whether the company had been justified in dismissing him - Factors to consider - Evidence adduced - Whether dismissal without just cause or excuse
Johanes Jamaluddin v. Guocera Tile Industries Sdn Bhd
(Duncan Sikodol) [2017] 3 ILR 376
Breach of company rules and policies - Negligence - Whether the claimant had been negligent in the discharge of his duties towards the company - Evidence adduced - Effect of - Factors to consider - Whether he had failed to discharge his duties to the company - Position held by the claimant - Claimant's defence - Whether acceptable - What the contents of the company's SOP had set out - Whether he had complied with it - Whether the company had been justified in dismissing him - Whether dismissal without just cause or excuse
Johanes Jamaluddin v. Guocera Tile Industries Sdn Bhd
(Duncan Sikodol) [2017] 3 ILR 376
Breach of company rules and policies - Negligence - Whether the claimant had done the internal wiring, installed the meter for the premises of Injew and failed to act and report on Injew's complaints of not receiving his electricity - Factors to consider - Evidence adduced - Effect of - Whether the Party Joined had proven this charge on a balance of probability - Whether the claimant's dismissal had been carried out with just cause and excuse
Japra Ak Rase @ Rasek v. Sarawak Energy Berhad & Anor
(Ani Ak Solep) [2017] 3 ILR 235
Breach of company rules and policies - Negligence - Whether the claimant had failed to follow the company's procedures by failing to disconnect the electricity after receiving the Service Notifications, which had led to the meters being installed and connected in an unsafe manner - Evidence adduced - Factors to consider - Effect of - Whether the Party Joined had succeeded in proving these charges against him - Whether dismissal without just cause or excuse
Japra Ak Rase @ Rasek v. Sarawak Energy Berhad & Anor
(Ani Ak Solep) [2017] 3 ILR 235
Misconduct - Claimant attending the Taiping High Court without the respondent company's permission - Whether it had constituted grave grounds justifying his dismissal - Factors to consider - Evidence adduced - Effect of - Claimant's explanations - Whether acceptable - Whether the respondent company had succeeded in proving the misconduct against him - Whether dismissal without just cause and excuse
Oon Inn Soo v. Ng Corporation Sdn Bhd
(Domnic Selvam Gnanapragasam) [2017] 3 ILR 269
Misconduct - Whether the claimant had incited, fomented and instigated the employees of the company to sign the letter dated 2 September 2013 - Contents of the letter - Whether it had threatened the management with illegal assembly and press presence - Effect of - Whether the said letter had been written by the claimant - Evidence adduced - Whether this charge had been proven against the claimant
Nur Azman Redzuan v. Selinsing Gold Mine Manager Sdn Bhd
(Mohd Dusuki Mokhtar) [2017] 3 ILR 403
Misconduct - Whether the claimant had instigated the employees not to perform their normal duties thus causing disruption at the gold processing plant and causing loss to the company - Factors to consider - Evidence adduced - Effect of - Whether this charge had been proven against him - Whether dismissal with just cause and excuse
Nur Azman Redzuan v. Selinsing Gold Mine Manager Sdn Bhd
(Mohd Dusuki Mokhtar) [2017] 3 ILR 403
Misconduct - Whether the claimant had on the material dates incited, fomented and instigated the employees of the processing plant on duty, not to report for duty on their scheduled shifts which had left the gold processing plant unable to operate on the said dates - Evidence adduced - Effect of - Whether the charge had been proven against him
Nur Azman Redzuan v. Selinsing Gold Mine Manager Sdn Bhd
(Mohd Dusuki Mokhtar) [2017] 3 ILR 403
Misconduct - Whether the claimant had on the relevant dates, wilfully and purposely incited, fomented and instigated the employees of the processing plant who were on duty, to shut down the gold processing plant without the authorisation from management - Evidence adduced - Effect of - Whether the charge had been proven against him - Whether his dismissal had been carried out without just cause and excuse
Nur Azman Redzuan v. Selinsing Gold Mine Manager Sdn Bhd
(Mohd Dusuki Mokhtar) [2017] 3 ILR 403
Misconduct - Whether the threat of mass-resignation had been considered an act of disobedience, insubordination and misconduct - Factors to consider - Whether it had constituted a serious misconduct which had justified the claimant's dismissal
Nur Azman Redzuan v. Selinsing Gold Mine Manager Sdn Bhd
(Mohd Dusuki Mokhtar) [2017] 3 ILR 403
Performance - Unsatisfactory performance - Claimant coming up with a test product which had cost the company monetary loss and damage to its reputation - Whether the blame had rested solely on the claimant's shoulders - Factors to consider - Evidence adduced - Effect of - Whether the company had succeeded in proving poor performance on the part of the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Martin Lawrence Burke v. Eco Refractory Products Sdn Bhd
(Rosenani Abd Rahman) [2017] 3 ILR 391
Performance - Unsatisfactory performance - Company raising the issue of poor performance for the first time 16 months into his employment with it - No warning or show cause letters issued to him prior to his dismissal - Effect of - Position held by the claimant in the company - Whether he had been aware of what had been required of him - Factors to consider - Evidence adduced - Effect of - Whether he had discharged his duties to the company - Whether the company had succeeded in proving poor performance on the part of the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Martin Lawrence Burke v. Eco Refractory Products Sdn Bhd
(Rosenani Abd Rahman) [2017] 3 ILR 391
Performance - Unsatisfactory performance - Whether the claimant had failed to come up with new products - Factors to consider - Evidence adduced - Effect of - Claimant's explanations - Whether could be accepted - Whether the company had succeeded in proving poor performance on the part of the claimant - Whether dismissal without just cause or excuse
Martin Lawrence Burke v. Eco Refractory Products Sdn Bhd
(Rosenani Abd Rahman) [2017] 3 ILR 391
Retrenchment - Redundancy - Company undergoing a restructuring exercise - Whether the claimant's position had become redundant - Factors to consider - Evidence adduced - Effect of - Whether the company's actions towards him had been carried out bona fide - Whether there had been a need to inform or consult him beforehand - Whether he had been aware of his impending termination - Company's actions towards him - Whether dismissal without just cause and excuse
Ab Razak Omar v. QSR Brands (M) Holdings Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2017] 3 ILR 296
EMPLOYMENT LAW
Jurisdiction - Industrial Court - Claimants terminated from employment - Claimants not seeking reinstatement - Whether Industrial Court has jurisdiction over matter - Whether Minister correct in referring representation of claimants to Industrial Court - Industrial Relations Act 1967, s. 20
Perwaja Steel Sdn Bhd v. Menteri Sumber Manusia Malaysia & Ors
(Hanipah Farikullah J) [2017] 3 ILR 225
EVIDENCE
Admissions - Party Joined admitting to being the claimant's employer - Whether the case against the Respondent ought to be struck off - Determination of who had been the claimant's employer - Factors to consider - Evidence adduced - Effect of
Japra Ak Rase @ Rasek v. Sarawak Energy Berhad & Anor
(Ani Ak Solep) [2017] 3 ILR 235
Burden of proof - Whether the Party Joined had discharged its burden of proving the charges against the claimant - Evidence adduced - Evaluation of - What the Party Joined should have done - Effect of
Japra Ak Rase @ Rasek v. Sarawak Energy Berhad & Anor
(Ani Ak Solep) [2017] 3 ILR 235
Documentary evidence - Findings of the DI - Panel made up of members from outside the company closely connected to and/or associated with COW1 - Whether the findings of the DI had been perverse - Factors to consider - Effect of - Whether the rules of natural justice had been followed
Wong Chen Feng v. Wonderful Compound Sdn Bhd
(Duncan Sikodol) [2017] 3 ILR 254
INDUSTRIAL COURT
Jurisdiction - Claimants not seeking reinstatement - Whether Industrial Court has jurisdiction over matter - Whether Minister correct in referring representation of claimants to Industrial Court - Industrial Relations Act 1967, s. 20
Perwaja Steel Sdn Bhd v. Menteri Sumber Manusia Malaysia & Ors
(Hanipah Farikullah J) [2017] 3 ILR 225
Jurisdiction - Party Joined, although the claimant's employer, not named in the Ministerial Reference - Whether this claim against the Party Joined ought to be struck off on that ground alone - Factors to consider - Effect of - Industrial Relations Act 1967, ss. 20(1) & 30(5)
Japra Ak Rase @ Rasek v. Sarawak Energy Berhad & Anor
(Ani Ak Solep) [2017] 3 ILR 235
Procedure - Action - Existing High Court decision stating that the hotel had not been entitled to restructure the employees' wages, by converting part of the whole of the service charge payable to them, in order to comply with the MWO - Whether this Court had been bound by that decision - Factors to consider - Whether the principle of stare decisis had applied
THR Hotel (Selangor) Berhad v. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar Dan Restoran Semenanjung Malaysia
(Anna Ng Fui Choo) [2017] 3 ILR 310
Remedies - Punishment - Whether the punishment of dismissal imposed on the claimant had been proportionate to his misconduct - Factors to consider - Effect of - Whether it had been in compliance with the principles of equity, good conscience and the substantial merits of the case - Factors to consider - Whether it ought to be set aside
Johanes Jamaluddin v. Guocera Tile Industries Sdn Bhd
(Duncan Sikodol) [2017] 3 ILR 376
TRADE DISPUTE
Collective Agreement - Terms and conditions of service - Article on annual bonus, annual increments and regional allowance - Whether the articles in the Sabah Collective Agreement ought to be adopted verbiage - Factors to consider - Effect of
Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad Negeri Sarawak v. Bank Pertanian Malaysia Berhad
(Mary Shakila G Azariah) [2017] 3 ILR 323
Collective Agreement - Terms and conditions of service - Article on cashier allowance - Whether the article on this in the Sabah Collective Agreement had been fair and reasonable and ought to be adopted - Factors to consider - Effect of
Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad Negeri Sarawak v. Bank Pertanian Malaysia Berhad
(Mary Shakila G Azariah) [2017] 3 ILR 323
Collective Agreement - Terms and conditions of service - Article on the distribution of service charge - Hotel unilaterally converting the service charge of its employees and using it to make up the minimum wages payable to them - Whether it had been entitled to do so - Factors to consider - Effect of
THR Hotel (Selangor) Berhad v. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar Dan Restoran Semenanjung Malaysia
(Anna Ng Fui Choo) [2017] 3 ILR 310
Collective Agreement - Terms and conditions of service - Article on funeral expenses - Whether it ought to be maintained at RM1,000.00 - Factors to consider - Effect of
Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad Negeri Sarawak v. Bank Pertanian Malaysia Berhad
(Mary Shakila G Azariah) [2017] 3 ILR 323
Collective Agreement - Terms and conditions of service - Article on overtime - Whether the parties had to follow the requirements of the SLO - Factors to consider - Evidence adduced - Effect of
Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad Negeri Sarawak v. Bank Pertanian Malaysia Berhad
(Mary Shakila G Azariah) [2017] 3 ILR 323
Collective Agreement - Terms and conditions of service - Article on promotions - Whether there should be guidelines and criteria on promotions - Evidence adduced - Factors to consider - Effect of - Whether the union's proposal for clear and transparent guidelines and procedures to prevent cronyism and unfair treatment had been justified
Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad Negeri Sarawak v. Bank Pertanian Malaysia Berhad
(Mary Shakila G Azariah) [2017] 3 ILR 323
Collective Agreement - Terms and conditions of service - Article on retrenchment benefits - Whether it ought to be left out of the CA as it was governed by the SLO - Factors to consider - Effect of
Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad Negeri Sarawak v. Bank Pertanian Malaysia Berhad
(Mary Shakila G Azariah) [2017] 3 ILR 323
Collective Agreement - Terms and conditions of service - Article on salary adjustment - Bank under the Ministry of Finance - Effect of - Whether employees covered under the CA who have not accepted the Terms and Conditions of Service in 2013 should be paid an amount by way of a salary revision, in accordance with the Terms and Conditions of Service in 2013 - Factors to consider - Evidence adduced - Effect of
Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad Negeri Sarawak v. Bank Pertanian Malaysia Berhad
(Mary Shakila G Azariah) [2017] 3 ILR 323
Collective Agreement - Terms and conditions of service - Article on salary structure - Whether there should be any revision in the wage system or wage structure - Factors to consider - Evidence adduced - Evaluation of - Whether the bank's proposal ought to be allowed
Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad Negeri Sarawak v. Bank Pertanian Malaysia Berhad
(Mary Shakila G Azariah) [2017] 3 ILR 323
Collective Agreement - Terms and conditions of service - Article on scope of the CA - Who should be covered by the CA - Factors to consider - Effect of - Industrial Relations Act 1967, s. 9
Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad Negeri Sarawak v. Bank Pertanian Malaysia Berhad
(Mary Shakila G Azariah) [2017] 3 ILR 323
Collective Agreement - Terms and conditions of service - Article on Supervisor's allowance and housing subsidy - Whether it ought to be allowed - Factors to consider - Effect of - Industrial Relations Act 1967, s. 30(4)
Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad Negeri Sarawak v. Bank Pertanian Malaysia Berhad
(Mary Shakila G Azariah) [2017] 3 ILR 323
Collective Agreement - Terms and conditions of service - Article on the distribution of service charge - Whether service charge could be utilised by the hotel unilaterally to make up the minimum wage - Factors to consider - Effect of - Whether s. 30(4) of the IRA had applied when it came to making a decision on the issue of the payment of minimum wages - Industrial Relations Act 1967, s. 30(4)
THR Hotel (Selangor) Berhad v. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar Dan Restoran Semenanjung Malaysia
(Anna Ng Fui Choo) [2017] 3 ILR 310
INDEKS PERKARA
KETERANGAN
Saksi - Sama ada keterangan syarikat responden dapat diberi pertimbangan yang sewajarnya - Faktor-faktor yang harus diambil kira - Kesannya - Apa yang syarikat responden sepatutnya lakukan – Kesannya
Sek Yuen Hwa lwn. DF Realty Sdn Bhd
(Sapini Mat Saman) [2017] 3 ILR 286
KONTRAK PERKHIDMATAN
Terma dan syarat - Umur persaraan - Kontrak perkhidmatan YM tidak mengandungi klausa berkenaan dengan umur persaraan - Sama ada polisi umur persaraan wajib telah diamalkan oleh syarikat responden - Faktor-faktor yang harus diambil kira - Keterangan yang dikemukakan - Kesannya - Sama ada YM mengetahui mengenai polisi tersebut - Kelakuan dan tindakan yang diambil oleh YM - Kesannya - Sama ada YM telah dibersarakan oleh syarikat responden secara sah dari segi undang-undang - Sama ada YM telah diberhentikan kerja tanpa alasan yang adil dan bersebab - Akta Persaraan Minima 2012
Wai Tit Hoy lwn. T-Venture Industries (M) Sdn Bhd
(Sapini Mat Saman) [2017] 3 ILR 276
PEMBUANGAN KERJA
Pemecatan secara konstruktif - Gaji - Syarikat responden gagal untuk membayar fee dan komisyen kepada YM - Sama ada berjaya dibuktikan oleh YM terhadap syarikat responden - Keterangan yang dikemukakan - Kesannya - Sama ada YM berhak kepada pembayaran fee dan komisyen tersebut - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada YM telah dibuang kerja secara konstruktif - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Sek Yuen Hwa lwn. DF Realty Sdn Bhd
(Sapini Mat Saman) [2017] 3 ILR 286
Pemecatan secara konstruktif - Gaji - Syarikat responden gagal untuk membayar gaji YM - Sama ada berjaya dibuktikan oleh YM terhadap syarikat responden - Keterangan yang dikemukakan - Kesannya - Sama ada YM telah dibuang kerja secara konstruktif - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Sek Yuen Hwa lwn. DF Realty Sdn Bhd
(Sapini Mat Saman) [2017] 3 ILR 286
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