LATEST CASES (ILR Issue 09 of 2019)

SUBJECT INDEX

CONTRACT OF EMPLOYMENT

Terms and conditions – Retirement age – Claimant retired pursuant to the Minimum Retirement Age Act 2012 – Whether he had had a legitimate expectation to work for as long as he had wanted – Factors to consider – Evidence adduced – Effect of – What legitimate expectation had meant – Whether satisfied by the claimant
Gill Satwant Singh v. Assunta Hospital
(Syed Noh Said Nazir) [2019] 3 ILR 564

Terms and conditions – Retirement age – Claimant’s employment contract(s) not containing a clause on the age of retirement – Whether the claimant could be retired accordingly – Factors to consider – Effect of – What the introduction of the Minimum Retirement Age Act 2012 had meant – Whether the hospital had retired him according to statutory provisions – Effect of – Whether the hospital had lawfully retired him
Gill Satwant Singh v. Assunta Hospital
(Syed Noh Said Nazir) [2019] 3 ILR 564

DISMISSAL

Attendance – Lateness – Whether the claimant had displayed tardiness in his work attendance – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant’s defence – Whether could be accepted – Whether his actions had constituted misconduct warranting his dismissal – Factors to consider – Whether his dismissal had been without just cause and excuse
Samuel Raj Sivajothi v. Tungsten Network Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 3 ILR 480

Breach of company rules and policies – Carelessness – Whether the claimant had uttered derogatory statements insulting the Muslim race and the Sultan of Selangor – Factors to consider – Evidence adduced – Effect of – Claimant’s defence – Whether acceptable – The effect of his statements – His length of service in the company – Whether the company had been justified in dismissing him – Whether dismissal without just cause or excuse
Ravindar S Latchmannen v. Winitex Sdn Bhd
(Sumathi Murugiah) [2019] 3 ILR 532

Breach of company rules and policies – Negligence – Whether the claimant had been in breach of his duty of care owed to the company and in dereliction of his duties owed to it – Factors to consider – Evidence adduced – Effect of – Position held by the claimant in the company – What it had entailed – Whether discharged by him – Claimant’s defence and stance in the matter – Whether acceptable – Whether his attitude had denoted a wilful sense of indifference on his part – Whether the company had acted hastily, harshly or rashly – Evaluation of the evidence – Effect of – Whether the company had been justified in dismissing him – Whether dismissal without just cause or excuse
Vijaya Kumar V Jegathison v. Commercial Wings Sdn Bhd
(Syed Noh Said Nazir) [2019] 3 ILR 594

Constructive dismissal – Claimants, amongst other things, having their belongings forcibly removed from their offices and denied access to it – Whether it had amounted to a fundamental breach which had gone to the root of their contracts of employment – Factors to consider – Evidence adduced – Effect of – Company’s defence – Whether could be accepted – Whether it had justified the claimants walking out of their employment and claiming constructive dismissal
Tan Poh Yee v. Cairnhill Hotel (M) Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 549

Insubordination – Claimant sending an e-mail to the GM which had been hostile – Whether it had constituted misconduct – Factors to consider – Evidence adduced – Effect of – Position held by the claimant in the company – What is expected of personnel in managerial positions – Whether charge proven by the company against him – Whether his misconduct had been serious and had justified his dismissal
Azli Surip v. IOI Pan-Century Edible Oils Sdn Bhd
(Sumathi Murugiah) [2019] 3 ILR 452

Insubordination – Whether the claimant’s e-mail to the GM, copied to the COO and ED, had been a personal attack on the former – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant’s defence – Whether could be accepted – What his actions had shown – Whether misconduct proven by the company – Whether it had justified his dismissal
Azli Surip v. IOI Pan-Century Edible Oils Sdn Bhd
(Sumathi Murugiah) [2019] 3 ILR 452

Misconduct – Whether the claimant had been rude to his superior when questioned on his frequent tardiness and extended breaks – Factors to consider – Evidence adduced – Effect of – Whether the company’s action of dismissing him had been justified
Samuel Raj Sivajothi v. Tungsten Network Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 3 ILR 480

Misconduct – Whether the claimant had taken extended breaks during working hours – Factors to consider – Evidence adduced – Effect of – His explanations – Whether could be accepted – What his actions had shown – Company’s actions towards him – What it had shown – Whether his misconduct had warranted his dismissal – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Samuel Raj Sivajothi v. Tungsten Network Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 3 ILR 480

Misconduct – Whether the claimant had uttered derogatory statements against the Muslim race and the Sultan of Selangor – Whether his actions had caused disharmony at the workplace – Evidence adduced – Evaluation of – Effect of
Ravindar S Latchmannen v. Winitex Sdn Bhd
(Sumathi Murugiah) [2019] 3 ILR 532

Retrenchment – Redundancy – Claimants declared redundant and terminated from service – Whether the bank had been under an obligation to redeploy them – Factors to consider – Effect of – Whether the bank had acted bona fide – Evidence adduced – Evaluation of – Effect of – Whether dismissals without just cause and excuse
Kanaga Laksmi Paramasivam & Ors v. HSBC Bank Malaysia Berhad
(Fredrick Indran XA Nicholas) [2019] 3 ILR 498

Retrenchment – Redundancy – Migration of the bank’s CAL to HDPM – Whether it had been done transparently and in a bona fide manner – Factors to consider – Evidence adduced – Effect of – Whether the claimants’ retrenchments had been carried out bona fide
Kanaga Laksmi Paramasivam & Ors v. HSBC Bank Malaysia Berhad
(Fredrick Indran XA Nicholas) [2019] 3 ILR 498

EVIDENCE

Documentary evidence – Whether the claimants had been employees of the company – Factors to consider – Evidence adduced – Effect of – Whether they had been dismissed by it
Tan Poh Yee v. Cairnhill Hotel (M) Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 549

Witness – Credibility – Claimant not a registered safety officer, at the point in time he had been interviewed for the position of Safety Manager – Whether it had gone to the issue of his credibility – Factors to consider – Effect of
Azli Surip v. IOI Pan-Century Edible Oils Sdn Bhd
(Sumathi Murugiah) [2019] 3 ILR 452

INDUSTRIAL COURT

Award – Termination of employment – Employee terminated with salary and allowances in lieu of notice – Whether termination contractual right of employer provided under conditions of contract – Whether termination with just cause or excuse – Whether termination lawful – Whether termination simpliciter – Whether High Court correct in intervening and quashing award of Industrial Court – Industrial Relations Act 1967, s. 20
Omar Othman v. Kulim Advanced Technologies Sdn Bhd
(Hamid Sultan Abu Backer, Badariah Sahamid & Mary Lim JJCA) [2019] 3 ILR 433

Jurisdiction – Matter referred to the DGIR and the Minister pursuant to sections 9(1A), (1B) and/or (1D) of the Act for a decision – Whether the Industrial Court had jurisdiction to hear the matter – Factors to consider – Effect of – Industrial Relations Act 1967, ss. 9(1A), (1B) and (1D)
Kesatuan Eksekutif RHB Bank Berhad v. RHB Bank Berhad
(Augustine Anthony) [2019] 3 ILR 477

LABOUR LAW

Collective agreement – Terms and conditions of CA – Expiry of – Whether provisions of terms and conditions of employment shall prevail until superseded by new terms – Whether provision would amount to terms in contract of service
Vengataselam Chellappan v. Federal Power Sdn Bhd
(Tun Abd Majid Tun Hamzah JC) [2019] 3 ILR 442

Employment – Termination – Employee terminated with salary and allowances in lieu of notice – Whether termination contractual right of employer provided under conditions of contract – Whether termination with just cause or excuse – Whether unlawful termination – Whether termination simpliciter – Employment Act 1955
Omar Othman v. Kulim Advanced Technologies Sdn Bhd
(Hamid Sultan Abu Backer, Badariah Sahamid & Mary Lim JJCA) [2019] 3 ILR 433

Employment – Termination benefits – Claim for – Machine operator – Whether claim by complainant fell under category of manual labour – Whether duties substantially or purely physical in nature with very little or no mental effort – Whether claim should be treated as one under s. 69(1) of Employment Act 1955 – Whether complainant entitled to claims under Employment (Termination and Lay-Off Benefits) Regulations 1980 and ss. 12(2)(c), (3) & 60E(3A) of Employment Act 1955
Vengataselam Chellappan v. Federal Power Sdn Bhd
(Tun Abd Majid Tun Hamzah JC) [2019] 3 ILR 442

TRADE DISPUTE

Collective Agreement – Terms and conditions of service – Whether the company had been in breach of cl. 14 of the CA – Factors to consider – Effect of – Industrial Relations Act 1967, ss. 26(2) & 30(5)
Kesatuan Kebangsaan Wartawan Semenanjung Malaysia (NUJ) v. Utusan Karya Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 472

Warning letter – Company issuing a warning letter to the President and Vice President of the union, in relation to the latters’ actions of allegedly threatening and giving an ultimatum to it – Whether the company’s actions had constituted the conduct of obstructing both the President and the Vice-President of the union from carrying out their union duties – Factors to consider – Evidence adduced – Evaluation of – Effect of – Industrial Relations Act 1967, ss. 4, 5, 7, 8(1), (2) & (3)
Kesatuan Pekerja-pekerja Keselamatan Safeguards G4S Sdn Bhd v. Safeguards G4S Sdn Bhd
(Eddie Yeo Soon Chye) [2019] 3 ILR 585