LATEST CASES (ILR Issue 11 of 2018)

SUBJECT INDEX

ADMINISTRATIVE LAW

Dismissal – Public servants – Right to appeal – Disciplinary proceedings against public servant – Public servant requested for relevant documents and sought to be accorded oral hearing to make representations on charges – Disciplinary authority did not entertain public servant's requests – Public servant dismissed from service – Whether public servant had constitutional right to appeal to Appeal Board against decision of Public Service Commission – Federal Constitution, art. 144(5A) and (5B) – Public Services Disciplinary Board Regulations 1993, regs. 5(1), 14
Vijayarao Sepermaniam v. Suruhanjaya Perkhidmatan Awam, Malaysia
(Ahmad Maarop CJ (Malaya), Hasan Lah, Ramly Ali, Azahar Mohamed & Zaharah Ibrahim FCJJ) [2018] 4 ILR 229

Public servants – Dismissal from service – Disciplinary proceedings against public servant – Public servant requested for relevant documents and sought to be accorded oral hearing to make representations on charges – Disciplinary authority did not entertain public servant's requests – Public servant dismissed from service – Whether public servant denied right to be heard and right to documents – Whether dismissal from public service lawful, constitutional, valid and operative – Public Officers (Conduct and Discipline) Regulations 1993, regs. 4(2)(g), (i), 25(1), 28, 37(2)(a), 38
Vijayarao Sepermaniam v. Suruhanjaya Perkhidmatan Awam, Malaysia
(Ahmad Maarop CJ (Malaya), Hasan Lah, Ramly Ali, Azahar Mohamed & Zaharah Ibrahim FCJJ) [2018] 4 ILR 229

CONSTITUTIONAL LAW

Fundamental liberties – Right to be heard – Disciplinary proceedings against public servant – Public servant requested for relevant documents and sought to be accorded oral hearing to make representations on charges – Disciplinary authority did not entertain public servant's requests – Public servant dismissed from service – Whether public servant denied right to be heard and right to documents – Whether dismissal from public service lawful, constitutional, valid and operative – Federal Constitution, art. 132(1)(c)
Vijayarao Sepermaniam v. Suruhanjaya Perkhidmatan Awam, Malaysia
(Ahmad Maarop CJ (Malaya), Hasan Lah, Ramly Ali, Azahar Mohamed & Zaharah Ibrahim FCJJ) [2018] 4 ILR 229

CONTRACT

Agreement – Sale and purchase agreement – Employee entered into sale and purchase agreement with employer for purchase of house – Employee received discount for purchase of house while in tenure – Employee resigned before completion of project – Whether employee's sale and purchase agreement distinct from employment contract – Whether discount for house purchase ought to be returned and refunded – Contracts Act 1950, ss. 40, 65 & 66
Tan Kok Siang v. Kemuning Setia Sdn Bhd
(Abang Iskandar, Badariah Sahamid & Mary Lim JJCA) [2018] 4 ILR 209

Breach – Employment contract – Term in contract that employee required to serve employer until completion of project – Employee played key role in procuring necessary approvals of local authority for planning and building plans – Employee received discount for purchase of house while in tenure – Employee resigned before completion of project – Whether employee's resignation premature – Whether employee in breach of fundamental term of employment contract – Whether discount for house purchase ought to be returned and refunded – Contracts Act 1950, ss. 40, 65 & 66
Tan Kok Siang v. Kemuning Setia Sdn Bhd
(Abang Iskandar, Badariah Sahamid & Mary Lim JJCA) [2018] 4 ILR 209

CONTRACT OF EMPLOYMENT

Existence of – Whether a contract of employment had existed between the 1st respondent and the claimant – Factors to consider – Effect of – Whether an employment contract always had to be in writing – Industrial Relations Act 1967, s. 20(3)
Syed Othman Abu Bakar v. Cekal Teguh Sdn Bhd/Kazakhstan Methanol Limited
(Rajeswari Karupiah) [2018] 4 ILR 264

Terms and conditions – 1st respondent not a party to the employment agreements but paying the claimants' salaries – Reasons for the same – Whether the 1st respondent had been their employer – Factors to consider – Evidence adduced – Effect of
Syed Othman Abu Bakar v. Cekal Teguh Sdn Bhd/Kazakhstan Methanol Limited
(Rajeswari Karupiah) [2018] 4 ILR 264

Terms and conditions – Determination of who the claimants' employers had been – Employment agreements signed between the claimants and the 2nd respondent – Whether the 1st and 2nd respondents had been interdependent – Whether there had been a real separation of entities between them – Factors to consider – Effect of – Whether two employers could be responsible for dismissing employees without just cause and excuse
Syed Othman Abu Bakar v. Cekal Teguh Sdn Bhd/Kazakhstan Methanol Limited
(Rajeswari Karupiah) [2018] 4 ILR 264

Terms and conditions – Determination of who the claimant's employer(s) had been – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the corporate veil between the company and RBI ought to be lifted
Paul Mullins v. RB Perunding Sdn Bhd & Anor
(Anna Ng Fui Choo) [2018] 4 ILR 369

Terms and conditions – Notice of termination – Claimant terminated for making false declarations to the company – Whether her termination had been carried out with just cause and excuse – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant subsequently offered reinstatement but refusing to take it – Reasons for the same – Whether her rejection of the reinstatement offer had been wrong in law
Jaspal Kaur Ajit Singh v. Leonfast Sdn Bhd
(Tan Ghee Phaik) [2018] 4 ILR 360

DISMISSAL

Absenteeism – Claimant taking emergency leave – Whether an actual emergency had existed – Evidence adduced – Effect of – Claimant's explanations – Whether acceptable – Whether the claimant had been absent without leave on the material days – Whether the charge had been proven by the company against him – Whether his dismissal had been with just cause and excuse
Tan Hong Lai v. UMW Toyota Motor Sdn Bhd
(Rosenani Abd Rahman) [2018] 4 ILR 386

Breach of company rules and policies – Dishonesty – Whether the claimants had participated in an “unofficial non-company trip”, fully paid for by RET – Evidence adduced – Evaluation of – Effect of – Whether the charge had been proven against them – Whether it had justified their dismissals – Whether dismissals without just cause and excuse
Zakaria Shaffie & Anor v. Projek Lebuhraya Usahasama Berhad (PLUS)
(Andersen Ong Wai Leong) [2018] 4 ILR 306

Breach of company rules and policies – Fraud/Dishonesty – Whether the claimant had misused the company's petty cash for his private matter – Evidence adduced – Effect of – His explanations for the same – Whether acceptable – Whether misconduct proven by the company – Whether the company had been justified in dismissing him
Nordin Ab Rahman v. Malaysia Airports Holdings Berhad
(Rajendran Nayagam) [2018] 4 ILR 258

Breach of company rules and policies – Medical check-up – Whether he had had a medical check-up at a specialist clinic as opposed to a company approved one without the company's approval – Factors to consider – Evidence adduced – Effect of – Whether charge proven by the company – Claimant's explanations – Whether acceptable – Whether his misconduct had justified his dismissal – Claimant's length of service with the company and track record with it – What the company should have done – Whether the company's actions towards him should have been more sympathetic – Whether dismissal too harsh under the circumstances – Whether dismissal without just cause and excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Tan Hong Lai v. UMW Toyota Motor Sdn Bhd
(Rosenani Abd Rahman) [2018] 4 ILR 386

Breach of company rules and policies – Medical leave – Whether the claimant had taken medical leave following a certain pattern – Evidence adduced – Evaluation of – Effect of – Claimant's explanations – Whether acceptable – Whether the charge had been proven by the company against him – Whether his dismissal had been with just cause and excuse
Tan Hong Lai v. UMW Toyota Motor Sdn Bhd
(Rosenani Abd Rahman) [2018] 4 ILR 386

Breach of company rules and policies – Unauthorised receipt of gratification – Whether the claimants had received gifts from third parties, in breach of the company's Code – Evidence adduced – Evaluation of – Effect of – Whether it had amounted to misconduct – Factors to consider – Whether their explanations had been acceptable – Whether this charge had been proven against them – Whether it had warranted their dismissals
Zakaria Shaffie & Anor v. Projek Lebuhraya Usahasama Berhad (PLUS)
(Andersen Ong Wai Leong) [2018] 4 ILR 306

Constructive dismissal – Demotion – Claimant demoted after being found guilty of the charges brought against him – Whether he had taken part in businesses which had conflicted with his duties to the company – Evidence adduced – Evaluation of – Effect of – Company's actions towards him – Whether reasonable – Whether it had amounted to a fundamental breach which had gone to the root of his contract of employment – Whether it had justified him walking out of his employment and claiming constructive dismissal
Tsng Fuh Shen v. Sapura Aero Sdn Bhd
(Paramalingam J Doraisamy) [2018] 4 ILR 332

Constructive dismissal – Demotion – Whether the claimant's failure to declare his interest and existing business relationship with Billy Ooi, before the latter's appointment as a contractor for the company, had been a breach of his express and/or implied terms and conditions of his LA – Factors to consider – His explanations – Whether could be accepted – Claimant's position in the company – Whether the claimant, by his actions, had breached the express and/or implied terms and conditions of his LA – Whether his claim for constructive dismissal ought to be allowed
Tsng Fuh Shen v. Sapura Aero Sdn Bhd
(Paramalingam J Doraisamy) [2018] 4 ILR 332

Constructive dismissal – Salary – Claimants' salaries and claims not paid by the respondents – Whether proven by the claimants – Evidence adduced – Evaluation of – Effect of – Whether it had amounted to a breach of a fundamental term of their contracts of employment – Whether it had been sufficient for them to claim constructive dismissal – Claimants waiting 90 days before claiming constructive dismissal – Whether it had amounted to a waiver of their rights – Factors to consider – Whether dismissals without just cause and excuse
Syed Othman Abu Bakar v. Cekal Teguh Sdn Bhd/Kazakhstan Methanol Limited
(Rajeswari Karupiah) [2018] 4 ILR 264

Misconduct – False declarations in SDs – Whether the claimants' actions of making false declarations in their SDs to exonerate themselves from blame, had deserved the severe punishment of dismissal – Factors to consider – Effect of – Whether they had, by their actions, breached the relationship of trust and confidence in the employer-employee relationship – Positions held by them in the company – Whether their actions had constituted serious misconduct justifying their dismissals – Whether dismissals without just cause and excuse
Zakaria Shaffie & Anor v. Projek Lebuhraya Usahasama Berhad (PLUS)
(Andersen Ong Wai Leong) [2018] 4 ILR 306

Misconduct – Whether the claimant had misused the company's petty cash for his personal matter – Evidence adduced – Effect of – Position held by the claimant in the company – What his conduct had shown – Whether his conduct had justified his dismissal – Factors to consider – Effect of – Whether dismissal with just cause and excuse
Nordin Ab Rahman v. Malaysia Airports Holdings Berhad
(Rajendran Nayagam) [2018] 4 ILR 258

Performance – Unsatisfactory performance – Whether the claimant had performed poorly – Evidence adduced – Evaluation of – Effect of – Whether proven by the company against him – Whether the company's actions towards him had been bona fide – Factors to consider – Whether his poor performance had justified his dismissal – Claimant's conduct and attitude – Claimant's defence – Whether could be accepted – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Kum Pha Ke Ang v. Yoong Siew Wah & Co
(Andersen Ong Wai Leong) [2018] 4 ILR 298

Retrenchment – Cessation of business – Claimant terminated after serving the company for 16 years but not paid retrenchment benefits – Whether she had been entitled to it – Factors to consider – Evidence adduced – Effect of
Chin Siew Yoong v. Nota Asia (Malaysia) Sdn Bhd C/O D. G. Kom Sdn Bhd
(Augustine Anthony) [2018] 4 ILR 321

Retrenchment – Cessation of business – Whether the company's reasons for the cessation of its business had been bona fide – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company's exercise of its managerial power in terminating the claimant had been carried out bona fide – Factors to consider – Effect of – Whether the claimant's termination had been carried out with just cause and excuse
Chin Siew Yoong v. Nota Asia (Malaysia) Sdn Bhd C/O D. G. Kom Sdn Bhd
(Augustine Anthony) [2018] 4 ILR 321

Retrenchment – Redundancy – Whether the claimant's position had become redundant – Factors to consider – Evidence adduced – Effect of – Whether the claimant's duties, functions and responsibilities had ceased to exist – Evaluation of the evidence – Company's actions towards him – Whether the company's failure to follow the LIFO principle had constituted an act of bad faith – Effect of – Whether dismissal without just cause and excuse
Paul Mullins v. RB Perunding Sdn Bhd & Anor
(Anna Ng Fui Choo) [2018] 4 ILR 369

DOMESTIC INQUIRY

Absence of – Reasons for the same – Effect of – Whether the company's reasoning for not having a DI had been flawed and erroneous – What the prudent practice of an employer should be
Zakaria Shaffie & Anor v. Projek Lebuhraya Usahasama Berhad (PLUS)
(Andersen Ong Wai Leong) [2018] 4 ILR 306

INDUSTRIAL COURT

Jurisdiction – Threshold jurisdiction – Employment agreement entered into between the claimants and the 2nd respondent, a foreign entity – Whether the IC had been seized with jurisdiction to hear the matter – Factors to consider – Effect of
Syed Othman Abu Bakar v. Cekal Teguh Sdn Bhd/Kazakhstan Methanol Limited
(Rajeswari Karupiah) [2018] 4 ILR 264

Procedure – Action – Whether this had been a fit case to refer to the IC – Factors to consider – Effect of – Whether the claimant had been fraudulent with the company in her actions – Evaluation of the evidence – Whether this had constituted a frivolous and vexatious action and an abuse of process of the IC – Purpose of the Industrial Relations Act 1967 – What employers and the DGIR should do in future
Jaspal Kaur Ajit Singh v. Leonfast Sdn Bhd
(Tan Ghee Phaik) [2018] 4 ILR 360

Remedies – Compensation – Determination of – Claimant on fixed-term contracts – What would be a suitable amount to award
Paul Mullins v. RB Perunding Sdn Bhd & Anor
(Anna Ng Fui Choo) [2018] 4 ILR 369

Remedies – Compensation for unexpired term of contract – Whether ought to be awarded – Factors to consider – Effect of
Syed Othman Abu Bakar v. Cekal Teguh Sdn Bhd/Kazakhstan Methanol Limited
(Rajeswari Karupiah) [2018] 4 ILR 264

TRADE DISPUTE

Collective Agreement – 116 workmen offered and accepted MSS offered by the company – Union claiming for additional compensation pursuant to arts. 16 and 47 of the CA – Whether the workmen had been subject to arts. 16 and 47 of the CA – Factors to consider – Effect of – Whether the union's claim should be allowed
Kesatuan Pekerja-pekerja Perusahaan Otomobil Nasional Sdn Bhd v. Perusahaan Otomobil Nasional Sdn Bhd
(Rajendran Nayagam) [2018] 4 ILR 255

Collective Agreement – Terms and conditions of service – Article on the payment of bonus – Whether the hotel had been in breach of it – Factors to consider – Evidence adduced – Effect of – Perusal of art. 39 of the CA – Whether the hotel had exercised its discretion properly – Whether the hotel's actions had made sense – Industrial Relations Act 1967, s. 13(2A)(c)
Kesatuan Pekerja-Pekerja Parkroyal Kuala Lumpur v. Grand Elite Sdn Bhd (Parkroyal Kuala Lumpur)
(P Iruthayaraj D Pappusamy) [2018] 4 ILR 353

WORDS & PHRASES

“Discretion” – Interpretation of the term – Whether the hotel had been in breach of art. 39 of the CA – Factors to consider – Effect of
Kesatuan Pekerja-Pekerja Parkroyal Kuala Lumpur v. Grand Elite Sdn Bhd (Parkroyal Kuala Lumpur)
(P Iruthayaraj D Pappusamy) [2018] 4 ILR 353

INDEKS PERKARA

PEMBUANGAN KERJA

Ketidakpatuhan terhadap peraturan dan polisi syarikat – Ketidakjujuran – Sama ada YM telah menyalahgunakan wang berjumlah RM5,600 – Keterangan yang dikemukakan – Penilaiannya – Kesannya – Sama ada pertuduhan ini berjaya dibuktikan oleh syarikat terhadapnya – Alasan YM – Sama ada dapat diterima – Faktor-faktor yang harus diambil kira – Kesannya – Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab
Zainal Abidin Abdul Wahid lwn. Malayan Banking Berhad
(Rosenani Abd Rahman) [2018] 4 ILR 290