LATEST CASES (ILR Issue 9 of 2018)

SUBJECT INDEX

CIVIL PROCEDURE

Judicial review – Certiorari – High Court quashed decision of Industrial Court – Whether there were infirmities in decision of Industrial Court – Whether Industrial Court applied wrong principles – Whether Industrial Court had taken into consideration irrelevant matters or had not taken into consideration relevant matters – Whether Industrial Court handed down unfair award – Whether High Court should interfere in Industrial Court's decision
Mohd Zamri Ismail v. Koperasi Pekebun Kecil Getah Nasional Bhd
(Hamid Sultan Abu Backer, Prasad Sandosham Abraham & Asmabi Mohamad JJCA) [2018] 3 ILR 423

DISMISSAL

Absenteeism – Whether the claimant had been habitually absent from work – Evidence adduced – Effect of – Whether the company had allowed him to work from home – Factors to consider – Whether proven by the claimant – Whether the misconduct had been proven against him – Whether it had constituted serious misconduct
Pream Anand Tharmalingam v. T-System Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2018] 3 ILR 470

Breach of company rules and policies – Dishonesty – Whether the claimant had made false overtime claims – Evidence adduced – Effect of – Claimant's defence – Whether it had merit – Factors to consider – Effect of – Whether his conduct had justified the company dismissing him – Whether dismissal without just cause and excuse
Azrizal Ali v. Sime Darby Auto Hyundai Sdn Bhd
(Fredrick Indran XA Nicholas) [2018] 3 ILR 440

Constructive dismissal – Auditors entering the claimant's premises without notice – Whether the reasons put forth by the company for the surprise visit had been supported by the evidence – Effect of – Company's subsequent actions – What it had shown – Whether the company's actions had been a fundamental breach of the implied terms of the claimant's contract of employment – Effect of
Daniel Subramaniam v. Sime Darby Plantation Sdn Bhd
(Sarojini Kandasamy) [2018] 3 ILR 573

Constructive dismissal – Claimant issued a show cause letter for his failure to implement the weeding programme and suspended from duty – Whether the company had prejudged his guilt in regard to this allegation without conducting a thorough investigation into the matter – Factors to consider – Effect of – What it should have done instead – Whether the company's actions had amounted to a breach of the implied terms of the claimant's contract of employment
Daniel Subramaniam v. Sime Darby Plantation Sdn Bhd
(Sarojini Kandasamy) [2018] 3 ILR 573

Constructive dismissal – Company issuing him a letter requesting an explanation on his excessive use of electricity and his failure to maintain the bungalow – Whether there had been an excessive use of electricity by him and a failure by him to maintain the bungalow – Factors to consider – Evidence adduced – Effect of – Whether the claimant had succeeded in proving constructive dismissal – Whether dismissal without just cause and excuse
Daniel Subramaniam v. Sime Darby Plantation Sdn Bhd
(Sarojini Kandasamy) [2018] 3 ILR 573

Constructive dismissal – Salary – Claimant not paid his salary for August 2015 – Whether proven by him – Evidence adduced – Evaluation of – Effect of – Company's explanations – Whether acceptable – Whether the company's actions had amounted to a fundamental breach going to the root of the contract of employment – Whether the claimant had been constructively dismissed – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Pream Anand Tharmalingam v. T-System Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2018] 3 ILR 470

Constructive dismissal – Transfer – Whether the accommodation received by the claimant in the Malacca Zone Office had been befitting his status as a Manager – Evidence adduced – Effect of – Whether the exercise of the company's managerial powers had clearly been in breach of his contract of employment – COW4's actions towards him – What it had shown – Whether he had been constructively dismissed by the company
Daniel Subramaniam v. Sime Darby Plantation Sdn Bhd
(Sarojini Kandasamy) [2018] 3 ILR 573

Constructive dismissal – Transfer – Whether the claimant had been transferred to a demoted job function – Factors to consider – Evidence adduced – Effect of – Whether the company's actions had clearly undermined the implied duty of mutual trust and confidence in the claimant's employment contract – Whether he had been constructively dismissed
Daniel Subramaniam v. Sime Darby Plantation Sdn Bhd
(Sarojini Kandasamy) [2018] 3 ILR 573

Constructive dismissal – Warning letter – Company issuing him a final stern warning letter – Whether it had been too harsh under the circumstances – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant's years of service with the company – Whether its actions had been a fundamental breach which had gone to the root of his contract of employment – Whether the claimant had been constructively dismissed – Whether dismissal without just cause and excuse
Daniel Subramaniam v. Sime Darby Plantation Sdn Bhd
(Sarojini Kandasamy) [2018] 3 ILR 573

Insubordination – Whether the claimant had been wilfully insubordinate by his refusal to attend training for his new position – Factors to consider – Evidence adduced – Effect of – Whether proven by the company against him – Effect of – Whether it had constituted serious misconduct
Pream Anand Tharmalingam v. T-System Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2018] 3 ILR 470

Notice of termination – Forced resignation – Whether the claimant had been forced to sign the Mutual Separation Agreement – Factors to consider – Evidence adduced – Effect of – Company's actions towards her – What it had shown – Amount of compensation paid to her – What it had been indicative of – Whether she had been dismissed by the company – Whether dismissal without just cause and excuse
Marsiha Akhir v. Hewlett-Packard Multimedia Sdn Bhd
(Augustine Anthony) [2018] 3 ILR 499

Performance – Poor performance – Claimant put on a Performance Improvement Plan – Whether she had objected to the same – What it had shown – Whether it had been an act of victimisation by the company – Evidence adduced – Effect of – Whether she had signed the Mutual Separation Agreement voluntarily – Factors to consider – Evaluation of the evidence – Effect of – Claimant's contentions – Whether it had any merit
Marsiha Akhir v. Hewlett-Packard Multimedia Sdn Bhd
(Augustine Anthony) [2018] 3 ILR 499

Performance – Poor performance – Whether the claimant had been a poor performer – Evidence adduced – Effect of – Whether proven by the company against her – Factors to consider – Evaluation of the evidence – Effect of – Claimant's defence – Whether it had any merit – Whether the company's action of dismissing her had been reasonable – Whether dismissal without just cause and excuse
Teoh Boey Ean v. Control Techniques Drives (M) Sdn Bhd
(Fredrick Indran XA Nicholas) [2018] 3 ILR 482

EVIDENCE

Burden of proof – Whether discharged by the claimant in this case – Evidence adduced – Effect of
Marsiha Akhir v. Hewlett-Packard Multimedia Sdn Bhd
(Augustine Anthony) [2018] 3 ILR 499

INDUSTRIAL COURT

Award – Proportionality of punishment – Employee failed to act upon certain letter causing employer to suffer losses – Employee terminated from employment – Industrial Court found that employee was dismissed without just cause and excuse and punishment of dismissal was too harsh – Whether punishment of dismissal too harsh – Whether Industrial Court could apply doctrine of proportionality of punishment to ascertain award – Industrial Relations Act 1967, s. 20(3)
Mohd Zamri Ismail v. Koperasi Pekebun Kecil Getah Nasional Bhd
(Hamid Sultan Abu Backer, Prasad Sandosham Abraham & Asmabi Mohamad JJCA) [2018] 3 ILR 423

Jurisdiction – Claimant seeking for damages instead of reinstatement – Whether the Industrial Court had the jurisdiction to hear the matter – Factors to consider – Effect of – Industrial Relations Act 1967, s. 20(1) & (3)
Pream Anand Tharmalingam v. T-System Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2018] 3 ILR 470

Jurisdiction – Whether the Industrial Court had jurisdiction to hear this matter – Discrepancy between the date of dismissal as stated in the Ministerial Reference and in the pleadings – Effect of – Where justice would be served – Industrial Relations Act 1967, s. 30(5)
Teoh Boey Ean v. Control Techniques Drives (M) Sdn Bhd
(Fredrick Indran XA Nicholas) [2018] 3 ILR 482

LABOUR LAW

Employment – Dismissal – Employee failed to act upon certain letter causing employer to suffer losses – Employee terminated from employment – Industrial Court found that employee was dismissed without just cause and excuse and punishment of dismissal was too harsh – Whether punishment of dismissal too harsh – Whether Industrial Court could apply doctrine of proportionality of punishment to ascertain award – Industrial Relations Act 1967, s. 20(3)
Mohd Zamri Ismail v. Koperasi Pekebun Kecil Getah Nasional Bhd
(Hamid Sultan Abu Backer, Prasad Sandosham Abraham & Asmabi Mohamad JJCA) [2018] 3 ILR 423

NON-COMPLIANCE

Collective Agreement – Articles on retrenchment/redundancy benefits and service charge – Whether the computation of retrenchment benefits for employees should be based on wages, which includes service charge, or basic salary, for each year of service – Factors to consider – Effect of – Whether there had been non-compliance by the hotel of the said articles in the CA – Whether the non-compliance application ought to be allowed
National Union Of Hotel, Bar & Restaurant Workers, Peninsular Malaysia v. Alor Setar Holiday Villa Sdn Bhd
(Eddie Yeo Soon Chye) [2018] 3 ILR 459

TRADE DISPUTE

Collective Agreement – Hotel utilising the service charge of the employees in order to comply with the Minimum Wages Order 2012 – Whether the hotel's actions had amounted to a unilateral variation of art. 12 of the 5th Collective Agreement – Factors to consider – Effect of
The Andaman A Luxury Collection Resort, Langkawi (Andaman Resort Sdn Bhd) v. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar & Restoran Semenanjung Malaysia
(Jamhirah Ali) [2018] 3 ILR 514

Collective Agreement – Terms and conditions of service – Whether the hotel could utilise the service charge of the employees in order to comply with the Minimum Wages Order 2012 – Factors to consider – Evidence adduced – Effect of – Reasoning behind the introduction of minimum wages and service charge – Whether service charge had been part of “wages” – Legislations to consider – Effect of – Whether the workmen had been subject to the Employment Act 1955 – Factors to consider – Effect of – Employment Act 1955, s. 2, Minimum Wages Order 2012, O. 6, National Wages Consultative Council Act 2011, ss. 2 & 23, Interpretation Acts 1948 and 1967, s. 17A and Industrial Relations Act 1967, ss. 30(4), (5) & (6) and 17(2)
The Andaman A Luxury Collection Resort, Langkawi (Andaman Resort Sdn Bhd) v. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar & Restoran Semenanjung Malaysia
(Jamhirah Ali) [2018] 3 ILR 514

TRADE UNION

Whether the trade union had the locus standi to represent its members – Factors to consider – Evidence showing that at the time of the hearing of the matter, all the employees of the company had been dismissed – Effect of – Industrial Relations Act 1967, ss. 2, 18(1) & 26(2)
Malaysian Airline System Employees' Union Peninsular Malaysia (MASEU) v. Malaysia Airline System Berhad
(Rajendran Nayagam) [2018] 3 ILR 436

WORDS & PHRASES

Definition of “party” in s. 2 of the Industrial Relations Act – Whether it had included the union in the present case – Factors to consider – Effect of
Malaysian Airline System Employees' Union Peninsular Malaysia (MASEU) v. Malaysia Airline System Berhad
(Rajendran Nayagam) [2018] 3 ILR 436

“minimum wages” – Definition of – Legislations to consider – Effect of – National Wages Consultative Council Act 2011, ss. 2 & 23, Employment Act 1955, s. 2 and Interpretation Acts 1948 and 1967, s. 17A
The Andaman A Luxury Collection Resort, Langkawi (Andaman Resort Sdn Bhd) v. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar & Restoran Semenanjung Malaysia
(Jamhirah Ali) [2018] 3 ILR 514

“wages” – Definition of – Whether it had included service charge – Factors to consider – Effect of – Intention of the parties – Guidelines to the National Wages Consultative Council Act 2011, Employment Act 1955, s. 2, Minimum Wages Order 2012, O. 6 & Industrial Relations Act 1967, s. 30(5)
The Andaman A Luxury Collection Resort, Langkawi (Andaman Resort Sdn Bhd) v. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar & Restoran Semenanjung Malaysia
(Jamhirah Ali) [2018] 3 ILR 514

Wages – What it meant – Whether the claimant had been entitled to his wages for August 2015 – Factors to consider – Effect of – Employment Act 1955, s. 2
Pream Anand Tharmalingam v. T-System Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2018] 3 ILR 470

“Wages” – Whether service charge had been included in the definition of wages – Factors to consider – Evaluation of legislation – Effect of – Employment Act 1955, s. 2
National Union Of Hotel, Bar & Restaurant Workers, Peninsular Malaysia v. Alor Setar Holiday Villa Sdn Bhd
(Eddie Yeo Soon Chye) [2018] 3 ILR 459

INDEKS PERKARA

UNDANG-UNDANG BURUH

Keselamatan sosial – Faedah hilang upaya sementara – Rayuan terhadap keputusan Jemaah Rayuan Keselamatan Sosial – Pekerja menemui kemalangan – Sama ada kemalangan berlaku semasa pekerja dalam perjalanan kerja dari tempat kediaman – Sama ada kemalangan terjumlah dalam rangkuman s. 24(1)(a) Akta Keselamatan Sosial Pekerja 1969 – Sama ada pekerja layak menuntut faedah hilang upaya sementara
Ketua Pengarah Pertubuhan Keselamatan Sosial lwn. Yazmin Mohd Sulaiman
(Hassan Abdul Ghani PK) [2018] 3 ILR 417