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LATEST CASES (ILR Issue 9 of 2014) SUBJECT INDEX CONTRACT Contract of employment - Whether contract of service or contract for services - Whether lorry drivers working for defendant company were independent contractors or employees - Test to be applied - Whether control test or integration test or multiple test CONTRACT OF EMPLOYMENT Terms and conditions - Resignation - Whether the claimant had been forced to resign - Evidence adduced - Effect of - Contents of the resignation letter - What it had shown - Requirements that need to be satisfied to prove forced resignation - Whether satisfied in this case Terms and conditions - Sales incentives clause - Interpretation of - Factors to consider - Effect of - Whether the company had been in breach of this clause - Evidence adduced - Whether the company had breached a fundamental term of the claimant’s contract of employment - Whether the claimant had been justified in walking out and claiming constructive dismissal - Whether the claimant had walked out prematurely - Factors to consider - What the claimant should have done Terms and conditions - Sales incentives clause - Whether nonpayment by the company had constituted a fundamental breach going to the root of his contract of employment - Factors to consider - Effect of Ahamad Saifudin Md Yasin v. Mind Flow (M) Sdn Bhd DISMISSAL Absenteeism - Whether the claimant had failed to report for work - Evidence adduced - Evaluation of - Whether proven by the company - Claimant’s reasons for the same - Whether acceptable - Factors to consider - Effect of - Whether it had been a serious offence which justified her dismissal Breach of company rules and policies - Conflict of interest with the company’s business - Whether the claimant had been conducting Herbalife business during working hours - Evidence adduced - Effect of - Whether it had been in direct competition with the company’s business - Whether it had been relevant - Duty of the claimant as an employee towards the company - Whether this charge had been established against the claimant - Whether the company had successfully discharged its burden of proof - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Theft - Whether the claimant had stolen from the company - Evidence adduced - Effect of - Whether the misconduct had been proven by the company - Whether the claimant’s conduct had been serious - Whether it had justified the company dismissing her - Factors to consider - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Constructive dismissal - Benefits - Claimant alleging nonpayment of sales incentives - Whether proven by him - Factors to consider - Effect of - 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 - Benefits - Claimant not paid his bonus - Reasons for the same - Evidence adduced - Effect of - Claimant placed on Performance Improvement Plan - Claimant failing to challenge company’s evidence on this point - Effect of - Whether dismissal without just cause and excuse Constructive dismissal - Performance - Modification of the claimant’s performance appraisal - Reasons for the same - Whether the court should interfere - Factors to consider - Whether it had been a bona fide exercise of management’s prerogative Constructive dismissal - Salary - Claimant allegedly not paid his salaries and fixed allowances - Claimant continuing to work for nine months despite the non-payments - What he should have done - Whether he had condoned and affirmed the breach - Whether he could now claim constructive dismissal Constructive dismissal - Transfer - Claimant transferred numerous times without promotion - Whether the transfers had been carried out bona fide - Factors to consider - Effect of - Intention of the company - Whether it had been a fundamental breach of the claimant’s contract of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss 20(3) & 30(5) Constructive dismissal - Transfer - Whether it had been carried out bona fide - Claimant tendering resignation - Whether he had abandoned his employment by his actions - Factors to consider - Effect of Insubordination - Claimant failing to follow the company’s instructions repeatedly - Effect of - Defence of the claimant - Whether acceptable - Whether the company had justifiable grounds for dismissing him - Whether dismissal without just cause and excuse Performance - Unsatisfactory performance - Whether the claimant had failed to perform up to expectations - Evidence adduced - Effect of - Whether proven by the company - Claimant’s qualifications and position in the company - Whether he should have known what had been expected of him - Whether the company had been justified in dismissing him - Whether dismissal without just cause and excuse Probationer - Company sending the claimant a backdated letter two weeks after his dismissal - Effect of - Whether it had been relevant and admissible - Factors to consider - Effect of Probationer - Whether the claimant had been a probationer when dismissed - No probation clause in his Letter of Appointment - Perusal of the Letter of Appointment - Effect of - What the intention of the parties had been - Factors to consider - Whether the company had discharged its burden of proving that the claimant had been a probationer - Effect of EVIDENCE Adverse inference - Claimant failing to call her husband to testify on the issue of the MCs - Whether he had been a material witness - Whether an adverse inference ought to be drawn against her Adverse inference - Company failing to call important and material witnesses - No explanations given for the same - Whether the company had been attempting to withhold or supress evidence - Factors to consider - Effect of - Evidence Act 1950, s. 114(g) Burden of proof - Whether discharged by the claimant to prove constructive dismissal - Evidence adduced - Evaluation of - Effect of Burden of proof - Whose burden to prove forced resignation - Whether discharged in this case Documentary evidence - Whether the claimant had been a workman - Factors to consider - Whether the claimant had been an employee of the company - Evidence adduced - Effect of Documentary evidence - Whether the company could rely on reasons other than those stated in the termination letter to justify her dismissal - Perusal and evaluation of case laws - What needed to be fulfilled Documentary evidence - Whose evidence had been more credible - Factors to consider - Effect of Witness - Material contradictions and inconsistencies - Claimant’s testimony in relation to her MCs riddled with inconsistencies and self-contradicting statements - Whether she had been a credible witness - Effect of - Whether her evidence could be relied on INDUSTRIAL COURT Jurisdiction - Claimant not seeking reinstatement - Whether the Industrial Court had the jurisdiction to hear the matter - Factors to consider - Effect of Procedure - Parties - Joinder - Respondent company under a voluntary winding-up - Whether sufficient grounds to allow joinder of HI to the proceedings - HI a separate legal entity and a foreign entity - Effect of Procedure - Parties - Joinder - Whether HI ought to be joined as a party to the proceedings - Factors to consider - HI a foreign company not registered in Malaysia - Effect of - Whether the Industrial Court has extra territorial jurisdiction over foreign companies - Evaluation of the legislation - Effect of - Industrial Relations Act 1967 and Industrial Court Rules 1967 Remedies - Compensation - What had been a suitable remedy to award the claimant - Factors to consider - Effect of - Determination of a suitable quantum - How arrived at Remedies - Compensation in lieu of reinstatement - Whether suitable to grant in circumstances - Length of service of the claimant LABOUR LAW Employment - Employees - Whether plaintiffs employee of defendant - Whether lorry drivers working for defendant company were independent contractors or employees - Test to be applied - Whether control test or integration test or multiple test NON-COMPLIANCE Award - Complainant seeking EPF contributions on the Award Sum - Whether the Court had directed such payments to be made - Perusal of the Award - Effect of - Who had the power to so direct - Factors to consider 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(2)(c) TRADE DISPUTE Collective Agreement - Company terminating the CA - Whether it had been in compliance with the termination article contained therein - Whether it had brought the CA to an end - Factors to consider - Effect of - What the termination notice had meant INDEKS PERKARA PEMBUANGAN KERJA Pekerja percubaan - Sama ada YM merupakan seorang pekerja percubaan - Polisi syarikat memperuntukkan untuk pengesahan jawatan secara automatik - Sama ada polisi tersebut sebahagian daripada kontrak pekerjaan YM - Keterangan yang dikemukakan - Kesannya Prestasi kerja yang tidak memuaskan - Sama ada berjaya dibuktikan oleh syarikat - Keterangan yang dikemukakan - Keterangan saksi syarikat - Kesannya - Sama ada penamatan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) Prestasi kerja yang tidak memuaskan - Sama ada YM telah diberikan amaran oleh syarikat - Sama ada syarikat perlu memberi beliau amaran - Status YM sebagai pekerja - Keterangan yang dikemukakan - Kesannya - Sama ada penamatan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) Salah laku - Sama ada YM telah menekan, menakutkan atau mengacau ganggu kakitangan syarikat untuk menandatangani surat petisyen dan menimbulkan keadaan yang tidak harmoni - Keterangan yang dikemukakan - Kesannya - Tempoh perkhidmatan YM di syarikat - Sama ada diambil kira sewaktu beliau dibuang kerja - Sama ada pembuangan kerja YM telah dilakukan dengan sebab yang adil and munasabah |
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