CASE HIGHTLIGHTS

TINUS WILTING v. ITASA ASIA SDN BHD
INDUSTRIAL COURT, KUALA LUMPUR
SYED NOH SAID NAZIR
AWARD NO. 1215 OF 2021 [CASE NO: 21(6)/4-2264/19]
16 AUGUST 2021

CONTRACT OF EMPLOYMENT: Terms and conditions – Change of ownership – Akronn bought over by the company – Whether the company had been bound by the employment contract entered into between the claimant and Akronn – Factors to consider – Evidence adduced – Effect of – Perusal of the Share Sale Agreement – What it had reflected – Whether a change of shareholding had been a basis to dishonor his employment contract

CONTRACT OF EMPLOYMENT: Terms and conditions – Claimant hired by Akronn before Akronn taken over by the company – Terms of the takeover – Whether the claimant had been an employee of the company before, during and after the Share Sale Agreement – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether he had merely been assisting the company to ensure a smooth transition – Employment (Termination and Lay-off Benefits) Regulations 1980, regs. 6, 8(1) and (2)

CONTRACT OF EMPLOYMENT: Terms and conditions – Notice of Termination – Whether the company had erroneously issued it to him – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant the only employee of the company to be terminated – Whether the company had acted bona fide towards him – Whether his dismissal had been without just cause and excuse

CONTRACT OF EMPLOYMENT: Terms and conditions – Relocation – Whether the claimant’s employment with the company had continued after the Share Sale Agreement – Factors to consider – Evidence adduced – Effect of – Whether his relocation to Europe had been under the company’s instructions – Evidence adduced – Evaluation of – Whether he had been under the instructions, control, supervision and direction of the company when he had relocated to Europe – Company’s actions towards him – What it had shown

EVIDENCE: Adverse inference – Company failing to call the GM to testify – Whether an adverse inference ought to be drawn against the company for it – Evidence Act 1950, s. 114(g)

INDUSTRIAL COURT: Remedies – Compensation – Quantum of – Determination of – Whether the claimant had been entitled to backwages for the remaining period of his employment contract – Factors to consider – Whether he had earned post-dismissal income – Evidence


ABDUL HALIM MOHD SALLEH v. CAGAMAS BERHAD
INDUSTRIAL COURT, KUALA LUMPUR
PARAMALINGAM J DORAISAMY
AWARD NO. 1598 OF 2021 [CASE NO: 22(25)(13)/4-1702/18]
1 NOVEMBER 2021

DISMISSAL: Breach of company rules and policies – Conflict of interest – Whether the claimant had taken a loan from COW6, failed to disclose it to the company and then interviewed her for the job within it – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – Whether he had put himself into a position of conflict of interest with the company – Whether the charge had been proven against him – Whether it had justified his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Breach of company rules and policies – Sexual harassment – Whether the claimant had been a compulsive sexual harasser that had preyed on his subordinate female staff in the TCM department – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the charges had been proven by the company against him – Claimant denying the charges and proffering his version of events – Whether could be accepted – Whether supported by the evidence – Whether he had clearly been in breach of the company’s Code of Ethics and Guidelines – Whether his conduct had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Insubordination – Claimant contacting his colleagues during the investigation process despite the company’s instructions in the show cause notice – Whether it had amounted to insubordination – His reasons for the same – Whether acceptable – Whether it had mattered who had initiated contact – Whether the charge(s) had been proven against him – Factors to consider – Evidence adduced – Effect of – Position held by him in the company – How he should have behaved – Whether it had justified his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Abuse of position and authority – Claimant soliciting information from his colleague(s) regarding the ongoing investigations – Show cause notice expressly forbidding him to contact his colleague(s) during the investigation process – Whether he had abused his position and authority by doing so – Whether it had justified his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Claimant asking COW9 to access his office, a security area, and carry out certain tasks, knowing that COW9 had not had clearance to be there – Effect of his actions – Whether it had been a breach of the company’s rules – Whether his instructions had been unlawful – Claimant’s reasons for doing what he had done – Whether acceptable – Whether his actions had been in clear breach of his suspension letter – Whether the charge(s) had been proven against him – Whether it had justified his dismissal

DISMISSAL: Misconduct – Claimant using foul and demeaning language against his female subordinates – Whether acceptable – His reasons for the same – Whether acceptable – Factors to consider – Evidence adduced – Effect of – Claimant’s position in his department – Whether he had held a higher duty of care towards his staff – Whether the charges had been proven against him – Whether it had been serious misconduct justifying his dismissal

DISMISSAL: Misconduct – Whether the claimant had asked COW11, COW13 and COW14 inappropriate and highly personal questions that had been sexual in nature – Victims not objecting to it and failing to report it immediately – Reasons for the same – Whether silence on the part of the victims had meant acquiescence – Claimant’s defence – Whether could be accepted – Whether his motives for asking such questions, as the perpetrator, had been relevant – Whether the charge(s) had been proven by the company against him – Factors to consider – Evidence adduced – Effect of – Position held by him in the company – Whether his conduct had been unbecoming of a superior in his position – Whether it had amounted to serious misconduct – Whether it had justified his dismissal

DISMISSAL: Misconduct – Whether the claimant had committed non-verbal/gestural and psychological harassment which had been sexual in nature against COW13 by incessantly insisting on following and/or attempting to follow her back to her hotel despite her objections – Factors to consider – Evidence adduced – Effect of – Whether the charge(s) had been proven against him – The position he had held – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed non-verbal/gestural and psychological harassment which had been sexual in nature against COW14 by insisting on entering her hotel room and sleeping on her hotel bed – Factors to consider – Evidence adduced – Effect of – How his actions had made COW14 feel – How he should have behaved in view of his position – Whether the charge(s) had been proven against him – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed non-verbal/ gestural and psychological harassment which had been sexual in nature against COW12, when he had intentionally leaned back towards her causing her to move aside to avoid him touching her breast – Factors to consider – Evidence adduced – Effect of – Whether the charge(s) had been proven against him – Claimant’s defence – Whether acceptable – The position he had held – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed physical harassment that had been sexual in nature against COW14, by him moving his leg and either resting his foot against her right ankle or touching or rubbing her calf when he had been seated opposite her on different occasions – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – Whether the charge(s) had been proven against him – The position he had held – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed physical harassment that had been sexual in nature against COW13 by placing his right hand on her right hand, which had been on the computer mouse on two separate occasions – Whether the charge(s) had been proven against him – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – The position he had held – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed physical harassment that had been sexual in nature against COW12 by taking her hand and placing it on his private part – COW12 not saying anything – Reasons for the same – Whether the charge(s) had been proven against him – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – The position he had held – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed physical sexual harassment and molestation against COW14, when he had forcefully pulled her hand and kissed her – Whether the charge(s) had been proven against him – Factors to consider – Evidence adduced – Effect of – COW14 not saying anything – Reasons for the same – Claimant’s defence – Whether acceptable – The position he had held – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed physical harassment that had been sexual in nature against COW14, when he had moved his right leg to touch her left leg, whilst being seated in close proximity to her at her workstation or at the roundtable in the Dealing Room – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – Whether the charge(s) had been proven against him – The position he had held – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed physical harassment that had been sexual in nature against COW14, when he had, on numerous occasions, pinched her back and side, at her bra line (either left or right), close to her breast – Whether the charge(s) had been proven against him – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – The position he had held – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed physical harassment that had been sexual in nature against COW14, when he had, on several different occasions, touched and/or felt her hand whenever she handed over certain objects to him – COW14 not saying anything – Reasons for the same – Whether the charge(s) had been proven against him – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – The position he had held – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed physical harassment that had been sexual in nature against COW13, when he had pinched and twisted her bra strap together with her flesh on the right side of her back, and subsequently pinched and twisted her bra strap together with her flesh on the left side of her back after she had returned to her work station – Whether the charge(s) had been proven against him – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – The position he had held – Claimant not showing any remorse for his actions – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed physical harassment that had been sexual in nature against COW11, when he had touched and/or felt her hand when she had handed objects such as pen or paper to him – Whether the charge(s) had been proven against him – Factors to consider – Evidence adduced – Effect of – COW11 not saying anything – Reasons for the same – Whether he had committed similar acts of misconduct against his other female staff – Effect of – His defence – Whether acceptable – The position he had held – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed physical harassment that had been sexual in nature against COW13 when he had used his fingers to scratch her palm whilst shaking her hand – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – Whether the charge(s) had been proven against him – The position he had held – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed acts of physical harassment that had been sexual in nature against COW13, when on several different occasions he had touched and/or felt her hand(s) whenever she handed over certain objects like pens, a golf putter and a box of peanut butter cookies to him – Whether the charge(s) had been proven against him – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – The position he had held – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed physical harassment that had been sexual in nature against COW12, when on several occasions, he had touched and/or felt her right hand when she had handed documents to him – Whether the charge(s) had been proven against him – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – The position he had held – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Misconduct – Whether the claimant had committed psychological harassment that had been sexual in nature on COW14 by repeatedly asking her out for social functions – Reasons why COW14 had accepted – The effect of repeated unwanted social invitations by a superior on his subordinate employee – Whether he had, by his conduct, emotionally blackmailed her – Factors to consider – Evidence adduced – Effect of – Claimant’s defence – Whether acceptable – Whether the charge(s) had been proven against him – Whether it had been serious enough to justify his dismissal

DISMISSAL: Misconduct – Whether the claimant had committed verbal, nonverbal/ gestural harassment and/or psychological harassment towards COW14 by asking her for a kiss, puckering up his mouth and making kissing sounds/gestures – Factors to consider – Evidence adduced – Effect of – Whether the charge(s) had been proven against him – Claimant’s defence – Whether acceptable – COW14 continuing to go out with him for drinks and social outings – Reasons for the same – His position in the company – How he should have behaved – Whether his actions had justified his dismissal

DISMISSAL: Victimisation – Whether the claimant had frequently “nit-picked” and verbally abused COW12 and sidelined COW6 by changing her line of reporting – Factors to consider – Evidence adduced – Effect of – His explanations on the same – Whether acceptable – Whether the charge(s) had been proven against him

EVIDENCE: Corroboration – Whether necessary for sexual harassment cases

EVIDENCE: Witness – Credibility – The claimant’s evidence against the company’s and the complainants’ – Which version had been more credible – Factors to consider – Effect of