SUBJECT INDEX
ADMINISTRATIVE LAW
Judicial review - Certiorari - Application to quash Industrial Court award holding that 1st respondent dismissed without just cause or excuse - Allegation of pilfering spare parts in violation of company's Standard Operating Procedure - Whether unauthorized possession of company's property by 1st respondent proven - Industrial Court's decision quashed
Motorola Malaysia Sdn Bhd v. Ng Thien Keong & Anor
(Aziah Ali J) [2011] 4 ILR 13
CONTRACT
Employment contract - Breach - Plaintiff absent from work for more than two consecutive days - Whether plaintiff breached contract of service - Whether plaintiff was present at site office - Whether defendant entitled to rely on Employment Act 1955, s. 15(2)
Lim Giat Eng v. Farlim Group (M) Bhd
(Noraini Abdul Rahman JC) [2011] 4 ILR 1
DISMISSAL
Absenteeism - Whether the claimant had been absent from work without authorization - Claimant given an hour off by his superior - Claimant failing to return back to work after the time off given and failing to inform his superior of his whereabouts - Effect of - Whether it had constituted insubordination on the claimant's part - Factors to consider - Evaluation of the evidence - Whether the company's decision to dismiss him had been correctly arrived at - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mohamad Noor Johari v. The Valspar (Malaysia) Corporation Sdn Bhd
(Jalaldin Hussain) [2011] 4 ILR 103
Breach of company rules and policies - Medical leave - Failure to submit - Whether the claimant had been on medical leave for the period in question - Whether a valid MC had been obtained by him - Effect of - Claimant failing to submit his MC to his workplace - Reasons for the same - Whether the claimant had lied to his superior - Effect of - Whether his conduct had justified his dismissal from the company - Factors to consider - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mohamad Noor Johari v. The Valspar (Malaysia) Corporation Sdn Bhd
(Jalaldin Hussain) [2011] 4 ILR 103
Breach of company rules and policies - Negligence - Claimants aware of malpractices carried out by their colleague - Claimants failing to report the matter to the company - Reasons for the same - Whether they had been under a duty to report it to the company - Effect of - Evaluation of the evidence - Whether the misconduct had been proven against the claimants - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Sahli Zaini & Ors v. Cotra Enterprise Sendirian Berhad
(Ahmad Terrirudin Mohd Salleh) [2011] 4 ILR 145
Constructive dismissal - Benefits - Company forcing the claimant to take his annual leave - Whether the company could do that - Effect of - Whether there had been a fundamental breach of the terms of employment by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Balasubramaniam Kandasamy v. YBR Management Services Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 4 ILR 61
Constructive dismissal - Salary - Company not paying the claimant's salary - Reasons for the same - Whether the claimant had still been in the employ of the company at the material time - Factors to consider - Effect of - Whether the company's actions had amounted to a breach which had gone to the root of the contract of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Balasubramaniam Kandasamy v. YBR Management Services Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 4 ILR 61
Constructive dismissal - Salary - Company unilaterally withholding a sum of monies from the claimant's salary - Whether the company had been entitled to do so - Effect of - Reasons for the withholding of the said monies by the company - Whether proven by the company - Effect of - Whether the company's actions had amounted to a breach which had gone to the root of the contract of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Balasubramaniam Kandasamy v. YBR Management Services Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 4 ILR 61
Notice of termination - Resignation - Company treating claimant's constructive dismissal as a resignation without notice - Perusal of the facts - Whether the claimant had in effect resigned - Effect of - Whether the clause on resignation in the claimant's letter of employment had been applicable - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Balasubramaniam Kandasamy v. YBR Management Services Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 4 ILR 61
DOMESTIC INQUIRY
Procedural impropriety - Whether the DI had been conducted according to the rules of natural justice - Whether the claimant had been aware of the charges brought against him - Effect of - Whether the findings of the DI had been perverse
Mohamad Noor Johari v. The Valspar (Malaysia) Corporation Sdn Bhd
(Jalaldin Hussain) [2011] 4 ILR 103
EVIDENCE
Adverse inference - Evidence Act 1950, s. 114(g) - Failure to produce document - Company's Standard Operating Procedure (?OP') not produced to assist court in deciding whether there had been a breach of SOP - Adverse inference only to be invoked for wrongful withholding or suppression of evidence - Adverse inference not invoked
Motorola Malaysia Sdn Bhd v. Ng Thien Keong & Anor
(Aziah Ali J) [2011] 4 ILR 13
Witness - Failure to call - Reasons for not calling the witness - Effect of - Whether acceptable - Whether the evidence of the witness had been necessary to prove the company's case - Factors to consider
Sahli Zaini & Ors v. Cotra Enterprise Sendirian Berhad
(Ahmad Terrirudin Mohd Salleh) [2011] 4 ILR 145
LABOUR LAW
Employment - Absenteeism - Plaintiff absent for more than two consecutive days - Defendant could not locate plaintiff at site office - Plaintiff dismissed from employment - Whether plaintiff's dismissal lawful - Whether defendant entitled to rely on Employment Act 1955, s. 15(2) - Whether witness' testimony hearsay - Whether claim time barred
Lim Giat Eng v. Farlim Group (M) Bhd
(Noraini Abdul Rahman JC) [2011] 4 ILR 1
Employment - Dismissal - Plaintiff absent for more than two consecutive days - Defendant could not locate plaintiff at site office - Plaintiff dismissed from employment - Whether plaintiff's dismissal lawful - Whether defendant entitled to rely on Employment Act 1955, s. 15(2) - Whether witness' testimony hearsay - Whether plaintiff's salary reduction without reason or notice - Whether plaintiff agreed to salary reduction - Whether plaintiff arbitrarily demoted - Whether defendant's explanation reasonable - Whether claim time barred
Lim Giat Eng v. Farlim Group (M) Bhd
(Noraini Abdul Rahman JC) [2011] 4 ILR 1
Employment - Reduction in salaries - Whether plaintiff's salary reduction was without reason or notice - Whether plaintiff agreed to salary reduction - Whether claim time barred
Lim Giat Eng v. Farlim Group (M) Bhd
(Noraini Abdul Rahman JC) [2011] 4 ILR 1
Employment - Termination - Mutual termination pursuant to acceptance of Voluntary Separation Scheme package (VSS) - Employees claiming retirement/termination benefits after accepting VSS - Whether employees entitled to be paid benefits as per employment handbook - Whether respondents expressly waived rights to receive retirement/termination benefits when accepting VSS
Padiberas Nasional Bhd v. Zainon Ahmad & Ors
(Ramly Ali JCA, Syed Ahmad Helmy JCA & Clement Skinner JCA) [2011] 4 ILR 28
Employment - Termination of service - Certiorari - Application to quash Industrial Court award holding that 1st respondent dismissed without just cause or excuse - Allegation of pilfering spare parts in violation of company's Standard Operating Procedure - Whether unauthorized possession of company's property by 1st respondent proven - Industrial Court's decision quashed
Motorola Malaysia Sdn Bhd v. Ng Thien Keong & Anor
(Aziah Ali J) [2011] 4 ILR 13
Industrial Court - Award - Certiorari - Application to quash Industrial Court award holding that 1st respondent dismissed without just cause or excuse - Allegation of pilfering spare parts in violation of company's Standard Operating Procedure - Whether unauthorized possession of company's property by 1st respondent proven - Industrial Court's decision quashed
Motorola Malaysia Sdn Bhd v. Ng Thien Keong & Anor
(Aziah Ali J) [2011] 4 ILR 13
NON-COMPLIANCE
Award - Complainant filing a complaint of non-compliance of the Award - Complainant reporting back to work pursuant to the terms of the Award - Respondent asking the complainant to sign a fresh letter of appointment - Reasons for the same - Whether it had been a reasonable request - Whether the request had been in contravention of the Award - Factors to consider - Industrial Relations Act 1967, s. 56
Kwan Li Ming v. Sekolah Sri Sedaya Sdn Bhd
(Susila Sithamparam) [2011] 4 ILR 134
Collective Agreement - Union alleging non-compliance of article 54 of the Collective Agreement - Interpretation of article 54 of the Collective Agreement - Whether there had been a legitimate expectation on the part of the workmen to receive an increment in 2010 - Factors to consider - Effect of
National Union Of Drink Industry Workers Peninsular Malaysia v. F&NCC Beverages Sdn Bhd
(Susila Sithamparam) [2011] 4 ILR 54
TORT
Defamation - Claim based on innuendo - Whether plaintiff's claim based on mere allegations - Whether letter of dismissal to plaintiff defamatory
Lim Giat Eng v. Farlim Group (M) Bhd
(Noraini Abdul Rahman JC) [2011] 4 ILR 1
TRADE DISPUTE
Collective Agreement - 2-year stoppage of salary increment - Reasons for the same - Whether the bank had made out its case against the workman - Evidence adduced - Effect of - Industrial Relations Act 1967, s. 26(2)
Persatuan Pegawai-Pegawai Bank Semenanjung Malaysia (ABOM) v. RHB Bank Berhad
(Franklin Goonting) [2011] 4 ILR 41
Collective Agreement - Bank meting out punishment of restitution against the workman - Whether it had been provided for in the terms of the Collective Agreement - Whether the terms of the Service Agreement had overridden the terms of the Collective Agreement - Factors to consider - Effect of - Whether the alleged practice of the banking industry should be taken into account
Persatuan Pegawai-Pegawai Bank Semenanjung Malaysia (ABOM) v. RHB Bank Berhad
(Franklin Goonting) [2011] 4 ILR 41
Collective Agreement - Punishment meted out on the workman - Whether the bank had practiced selective punishment
Persatuan Pegawai-Pegawai Bank Semenanjung Malaysia (ABOM) v. RHB Bank Berhad
(Franklin Goonting) [2011] 4 ILR 41
Collective Agreement - Terms and conditions of service - Proposals put forward by both parties - What had been reasonable under the circumstances - Evaluation of the evidence - What had been the industry's practice - Effect of - Industrial Relations Act 1967, s. 26(2)
Kesatuan Pekerja-Pekerja Kelab Semenanjung Malaysia v. Tropicana Golf And Country Resort Bhd
(Ahmad Terrirudin Mohd Salleh) [2011] 4 ILR 83
WORDS & PHRASES
Legitimate expectation - What it meant - Whether the workmen had a legitimate expectation to receive the increment in 2010 - Factors to consider
National Union Of Drink Industry Workers Peninsular Malaysia v. F&NCC Beverages Sdn Bhd
(Susila Sithamparam) [2011] 4 ILR 54
INDEKS PERKARA
PEMBUANGAN KERJA
Ingkar perintah - Sama ada tindakan YM meluluskan permohonan yang telah ditolak oleh ibupejabat sebanyak 2 kali merupakan suatu ingkar perintah - Keterangan yang dikemukakan - Sama ada salahlaku ini berjaya dibuktikan oleh syarikat - Penjelasan YM - Sama ada dapat diterima - Sama ada keputusan syarikat untuk membuang kerja YM adalah betul - Sama ada pembuangan kerja YM telah dilakukan secara adil dan berasas - Akta Perhubungan Perusahaan 1967, s. 20(3)
Nazir Ja'far lwn. Pos Malaysia Berhad
(Jalaldin Hussain) [2011] 4 ILR 158
Ketidakpatuhan terhadap polisi syarikat - YM menyewa harta syarikat bercanggah dengan polisi syarikat - Sama ada YM sedar akan polisi syarikat - Keterangan yang dikemukakan - Jawatan yang dipegang oleh YM dalam syarikat - Sama ada YM telah membelakangkan kewajipannya kepada syarikat - Sama ada keputusan syarikat untuk membuang kerja YM adalah betul - Sama ada pembuangan kerja YM telah dilakukan secara adil dan berasas - Akta Perhubungan Perusahaan 1967, s. 20(3)
Nazir Ja'far lwn. Pos Malaysia Berhad
(Jalaldin Hussain) [2011] 4 ILR 158
SIASATAN DALAMAN
Kesilapan prosedur - Sama ada SD yang dijalankan mengikut prinsip keadilan asasi - Keterangan yang dikemukakan - Keputusan SD - Sama ada ianya ?erverse' - Faktor-faktor yang harus diambil kira
Nazir Ja'far lwn. Pos Malaysia Berhad
(Jalaldin Hussain) [2011] 4 ILR 158