SUBJECT INDEX
CONTRACT OF EMPLOYMENT
Terms and conditions - Whether the Employee Handbook had regulated the relationship
between the claimant and the company - Contents of the Employee Handbook - Effect
of - Company also failing to adhere to its statutory obligations - What that meant
- Effect of - Claimant subsequently dismissed by the company - Whether dismissal
with just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Pang Swee Khin v. Crystal Road Construction Sdn Bhd
(Gabriel Gumis) [2011] 1 ILR 472
Type of - Fixed term contract - Whether the claimant’s contract had been
a genuine fixed term contract - Claimant not raising the issue of the genuineness
of her fixed term contract until 6 years after her dismissal - Claimant represented
by solicitors from her first termination notice - Effect of - Whether the claimant’s
objection to her fixed term contract had been a mere afterthought - Factors to consider
- Effect of - Whether dismissal without just cause or excuse - Industrial Relations
Act 1967, ss. 20(3) & 30(5)
Maybank (Phileo Allied Bank) v. Amy Low
(Ong Geok Lan) [2011] 1 ILR 461
Type of - Fixed term contract - Whether the claimant’s contract had been
a genuine fixed term contract - Whether the company’s actions of putting the claimant
on a fixed term contract had been genuine - Evidence adduced by the company - Effect
of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967,
ss. 20(3) & 30(5)
Maybank (Phileo Allied Bank) v. Amy Low
(Ong Geok Lan) [2011] 1 ILR 461
Type of - Whether the claimant had been hired by the company on a project
basis - Evidence adduced by the company - Effect of - Claimant subsequently dismissed
by the company - Whether dismissal with just cause and excuse - Industrial Relations
Act 1967, s. 20(3)
Pang Swee Khin v. Crystal Road Construction Sdn Bhd
(Gabriel Gumis) [2011] 1 ILR 472
DISMISSAL
Abandonment - Company claiming that the claimant had abandoned his job
by failing to turn up for work - Whether it had been proven by the company - Evidence
adduced by the company - Effect of - Company failing to plead abandonment by the
claimant - Effect of - Whether dismissal without just cause or excuse - Industrial
Relations Act 1967, ss. 20(3) & 30(5)
Edwin Anak Bakar v. Sarku Marine Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 375
Change of ownership - Whether the claimant had been aware of the change
in ownership - Effect of - What a change of ownership had meant - Whether the company
had been in a position to continue to employ the claimant after selling off their
assets and liabilities - Effect of - Whether the company’s actions of terminating
the claimant had been bona fide - Factors to consider - Effect of - Evidence adduced
- Effect of - Whether dismissal without just cause or excuse - Industrial Relations
Act 1967, ss. 20(3) & 30(5)
Maybank (Phileo Allied Bank) v. Amy Low
(Ong Geok Lan) [2011] 1 ILR 461
Constructive dismissal - Claimant suspended from duties and subsequently
not paid her salaries - Reasons for the same - Whether the company had proven the
allegations against the claimant - Evidence adduced - Whether the claimant had managed
to rebut successfully - Effect of - Whether the claimant had managed to satisfy
her burden of proof - Effect of - Whether there had been a fundamental breach of
the claimant’s contract of employment by the company - Effect of - Whether dismissal
without just cause and excuse - Industrial Relations Act 1967
Yong Ha Lan v. Pemborong Chung Wai Wah & Sons Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 294
Constructive dismissal - Victimization - Claimant giving loans to the
company and taking interest - Whether it had been a common practice in the company
- Effect of - Claimant singled out for punishment - Whether that had been prejudicial
to her - Whether she had been treated with bias by the company - Whether she had
been victimized by the company - Evidence adduced by the claimant - Effect of -
Whether there had been a fundamental breach of the claimant’s contract of employment
by the company - Effect of - Whether dismissal without just cause and excuse - Industrial
Relations Act 1967
Yong Ha Lan v. Pemborong Chung Wai Wah & Sons Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 294
Constructive dismissal - Whether the claimant had failed to perform her
job functions - Job designation of the claimant - Company’s claim on her job designation
and documentary evidence adduced contradicting one another - Effect of - Which had
been more believable - Company alleging that the claimant had not performed her
job up to expectations - Evidence adduced by the company - Company suspending the
claimant and failing to pay her salaries - Claimant walking out on constructive
dismissal - Whether the company’s actions had been reasonable - Effect of - Whether
there had been a fundamental breach of the claimant’s terms of employment by the
company - Whether dismissal without just cause or excuse - Industrial Relations
Act 1967, s. 20(3)
Yong Ha Lan v. Pemborong Chung Wai Wah & Sons Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 294
Insubordination - Claimant given a directive not to appear in the Departure
Hall unless travelling - Claimant disregarding the directive - Claimant obtaining
a security pass from the Department of Civil Aviation - Effect of - Whether the
company’s failure to inform DCA not to issue him a security pass had indicated the
company’s acceptance of his presence in the Departure Hall - Who the claimant’s
employer had been - Whether the claimant’s misconducts had constituted penal offences
- Effect of - What the claimant’s presence in the Departure Hall had meant - Effect
of - Whether the company had managed to establish the misconduct against the claimant
- Effect of - Whether dismissal without just cause or excuse - Industrial Relations
Act 1967, s. 20(3)
Awang Khalik Awang Yusuf v. Malaysia Airlines
(Gabriel Gumis) [2011] 1 ILR 424
Insubordination - Claimant given a directive not to appear in the Departure
Hall unless travelling - Claimant disregarding the directive - Reasons put forward
by the claimant for disregarding the directive - Effect of - Whether the claimants
reasons had been believable - Whether the claimant had obtained the permission of
the officer on duty to make the announcement - Evidence adduced by the claimant
and the company - Which version more believable - Effect of - Company not suffering
financial loss or incurring flight delays - Whether that had been a relevant consideration
- Whether the misconducts had been proven against the claimant - Evidence adduced
by the company - Effect of - Whether dismissal without just cause or excuse - Industrial
Relations Act 1967, s. 20(3)
Awang Khalik Awang Yusuf v. Malaysia Airlines
(Gabriel Gumis) [2011] 1 ILR 424
Insubordination - Claimant given a directive not to appear in the Departure
Hall unless travelling - Claimant disregarding the directive - Whether his actions
had constituted misconduct - Effect of - Company issuing him a punishment order
- Whether the party who had issued the punishment order to the claimant had been
the correct authority to do so - Effect of - Two versions of the company’s Disciplinary
Procedure - Perusal of - Whether the company had complied with its own disciplinary
procedures - Whether the punishment order had been decided on unilaterally - Evidence
adduced by the company - Effect of - Whether dismissal without just cause or excuse
- Industrial Relations Act 1967,
s. 20(3)
Awang Khalik Awang Yusuf v. Malaysia Airlines
(Gabriel Gumis) [2011] 1 ILR 424
Insubordination - Claimant given a directive not to appear in the Departure
Hall unless travelling - Claimant disregarding the directive - Whether his actions
had constituted misconduct - Effect of - Two versions of the company’s Disciplinary
Procedures produced in court - A perusal thereof - Whether there had been any difference
between the 2 versions - Effect of - Whether the company had managed to establish
the misconducts against the claimant - Evidence adduced by the company - Whether
sufficient to satisfy its burden of proof - Effect of - Whether dismissal without
just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Awang Khalik Awang Yusuf v. Malaysia Airlines
(Gabriel Gumis) [2011] 1 ILR 424
Insubordination - Claimant issued a show cause letter and given 7 days
to explain - Instead claimant terminated 2 days later - Effect of - Claimant not
given an opportunity to explain himself - Whether that had been fair - Effect of
- Whether the misconduct of insubordination had been proven by the company - Whether
dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Adam Lau Chee Seng v. Ambience Lighting (M) Sdn Bhd
(Yamuna Menon) [2011] 1 ILR 320
Insubordination - Claimant making additional claims against the company
- What those additional claims had been in relation to - Whether it had related
to work within the claimant’s job scope - Effect of - The claimant’s job scope -
Determination of - Effect of - Company informing the claimant that he "may" claim
additional sums - What it had meant - Whether the company by its actions had sent
him mixed messages - Effect of - Whether the misconduct had been proven by the company
- Evidence adduced - Effect of - Whether dismissal without just cause or excuse
- Industrial Relations Act 1967, s. 20(3)
Adam Lau Chee Seng v. Ambience Lighting (M) Sdn Bhd
(Yamuna Menon) [2011] 1 ILR 320
Insubordination - Claimant making additional claims against the company
- Whether a meeting had been held between the claimant and COW1 wherein the latter
had advised him not to make those claims - Evidence adduced - Whether such a meeting
had been pleaded in the SIR - Effect of - Whether it had been an afterthought -
Effect of - Whether the misconduct of insubordination had been proven by the company
- Whether dismissal without just cause or excuse - Industrial Relations Act 1967,
s. 20(3)
Adam Lau Chee Seng v. Ambience Lighting (M) Sdn Bhd
(Yamuna Menon) [2011] 1 ILR 320
Misconduct - Claimant charged with threatening his superior - Whether
proven by the company - Evidence adduced by the company - Effect of - Whether had
been sufficient to prove - Effect of - Whether the respondent company had discharged
its burden of proof - Effect of - Whether dismissal without just cause or excuse
- Industrial Relations Act 1967, s. 20(3)
Osman Rahmat v. Portcom Sdn Bhd
(Eddie Yeo Soon Chye) [2011] 1 ILR 448
Notice of termination - Release letter issued by the company - Contents
of the release letter - Effect of - Whether the claimant had resigned - Claimant
denying tendering his resignation letter - Effect of - Evidence adduced by the company
- Whether the company had proven that the claimant had resigned - Effect of - Whether
dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3)
& 30(5)
Pang Swee Khin v. Crystal Road Construction Sdn Bhd
(Gabriel Gumis) [2011] 1 ILR 472
Notice of termination - Whether the notice of termination had been issued
against the claimant to victimize him - Effect of - Past conduct of the claimant
- Whether it had been relevant in determining whether his dismissal had been carried
out with just cause and excuse - Effect of - Whether the claimant’s dismissal had
been with just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Awang Khalik Awang Yusuf v. Malaysia Airlines
(Gabriel Gumis) [2011] 1 ILR 424
Performance - Unsatisfactory performance - Claimant delaying in paying
year-end bonuses - Reasons for the same - Whether the parent company’s prior approval
had been required before bonuses could be paid out - Evidence adduced by the parties
- Effect of - Whether dismissal without just cause or excuse - Industrial Relations
Act 1967, ss. 20(3) & 30(5)
Cheaw Hon Leong v. Muller Martini (Malaysia) Sdn Bhd
(Yamuna Menon) [2011] 1 ILR 249
Performance - Unsatisfactory performance - Claimant paying year-end bonuses
out late - Company alleging employee morale low - Whether the claimant had been
aware - Evidence adduced by the company - Effect of - Whether dismissal without
just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Cheaw Hon Leong v. Muller Martini (Malaysia) Sdn Bhd
(Yamuna Menon) [2011] 1 ILR 249
Performance - Unsatisfactory performance - Whether proven by the company
- Claimant given increments and bonuses - What that had shown - Effect of - Whether
the company had borne the burden of proving unsatisfactory performance - Effect
of - Whether the allegation of poor performance had been proven by the company -
Effect of - Whether dismissal without just cause or excuse - Industrial Relations
Act 1967, ss. 20(3) & 30(5)
Cheaw Hon Leong v. Muller Martini (Malaysia) Sdn Bhd
(Yamuna Menon) [2011] 1 ILR 249
Retrenchment - Business closure of the company’s MLNG Project - Claimant
offered re-employment but claimant declining - Reasons for the same - Effect of
- Whether the re-employment offer by the company had been genuine - Evidence adduced
by the company - Effect of - Whether there had been a dismissal - Whether dismissal
without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Patrick Wang v. Nichias Engineering (M) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 339
Retrenchment - Business closure of the company’s MLNG Project - Whether
it had been done bona fide - Evidence adduced by the company - Whether the
company had any projects in Malaysia after 2002 - Effect of - Whether the company
had been a dormant company - Evidence tendered by the company - Whether proven -
Effect of - Claimant terminated from employment - Effect of - Whether there had
been a dismissal - Whether dismissal without just cause and excuse - Industrial
Relations Act 1967, s. 20(3)
Patrick Wang v. Nichias Engineering (M) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 339
Retrenchment - Business closure of the company’s MLNG Project - Whether
proven - Effect of - Whether the claimant had been given prior notice of the impending
closure of the MLNG Project - Evidence tendered by the parties - Closure mentioned
in claimant’s termination letter and claimant given a month’s notice of termination
- Whether that had been reasonable under the circumstances - Effect of - Whether
the company had been under an obligation to give notice to the claimant - What it
showed of the intention of the company - Effect of - Whether dismissal without just
cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Patrick Wang v. Nichias Engineering (M) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 339
Retrenchment - Redundancy - Claimant retrenched - Effect of - Whether
the company had managed to prove that the claimant’s position had become redundant
- Evidence adduced by the company - Effect of - Whether the company’s actions had
been bona fide - Whether dismissal without just cause or excuse - Industrial
Relations Act 1967, ss. 20(3) & 30(5)
Pang Swee Khin v. Crystal Road Construction Sdn Bhd
(Gabriel Gumis) [2011] 1 ILR 472
Retrenchment - Redundancy - Claimant retrenched - Reasons for the same
- Effect of - Whether the company had carried out the retrenchment exercise fairly
- Evidence adduced by the company - Whether the company had complied with the terms
and conditions of the Employee Handbook - Effect of - Whether the Employee Handbook
had been a part of the claimant’s terms of employment - Effect of - Whether the
company had breached its contract of employment with the claimant - Effect of -
Whether dismissal without just cause and excuse - Industrial Relations Act 1967,
s. 20(3)
Pang Swee Khin v. Crystal Road Construction Sdn Bhd
(Gabriel Gumis) [2011] 1 ILR 472
Retrenchment - Redundancy - Claimant terminated by the company - Reasons
for his termination - Claimant accused of the American Crane modification incident
- Evidence adduced by the company - Whether it had been corroborated by the necessary
oral and documentary evidence - Effect of - Claimant’s prior service record - What
it had shown - Effect of - Whether dismissal without just cause or excuse - Industrial
Relations Act 1967, ss. 20(3) & 30(5)
Edwin Anak Bakar v. Sarku Marine Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 375
DOMESTIC INQUIRY
Findings - Whether it had been perverse - Whether the inquiry had been
conducted using the twin pillars of justice - Evidence adduced by the company -
Effect of - Whether the findings of the DI could be relied on by the Court - Effect
of - Industrial Relations Act 1967, s. 20(3)
Awang Khalik Awang Yusuf v. Malaysia Airlines
(Gabriel Gumis) [2011] 1 ILR 424
EVIDENCE
Documentary evidence - Preliminary objection to contradictory dates claimant
alleging constructive dismissal - Whether the principle in Joedy Kanniah had been
applicable - Whether this had been a case of direct dismissal or constructive dismissal
- Factors to consider - Effect of - Industrial Relations Act 1967
Yong Ha Lan v. Pemborong Chung Wai Wah & Sons Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 294
Documentary and oral evidence given by the company - Whether the claimant
had come within the definition of ‘workman’ under the Act - Factors to consider
- Claimant not executing letter of appointment - Which party had borne the burden
of ensuring that the claimant executed the letter of appointment - Effect of - Claimant
serving the company for 12 years - Whether the company’s allegations that the claimant
had not been a workman had been mala fide - Effect of - Whether dismissal
without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Edwin Anak Bakar v. Sarku Marine Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 375
Witness - Evidence given by the claimant - Claimant giving contradictory
evidence - What that showed - Effect of - Whether claimant’s testimonies had been
an afterthought - Effect of - Industrial Relations Act 1967
Tan Seng Wong v. Ludwig Air Health Sdn Bhd
(Hapipah Monel) [2011] 1 ILR 357
INDUSTRIAL COURT
Jurisdiction - Workman - Whether the claimant had been a workman within
the ambit of the Industrial Relations Act 1967 - Claimant refusing the business
owner entry into his office and to his documents - What that showed - Evidence adduced
- Whether arrangement had been characteristic of an employer-workman relationship
- Effect of - Whether the Industrial Court had jurisdiction to hear the matter -
Effect of - Whether dismissal had been without just cause and excuse - Industrial
Relations Act 1967, ss. 2 and 20(3)
Tan Seng Wong v. Ludwig Air Health Sdn Bhd
(Hapipah Monel) [2011] 1 ILR 357
Jurisdiction - Workman - Whether the claimant had been a workman within
the ambit of the Industrial Relations Act 1967 - No employment contract entered
into between the parties - Whether there had been a verbal contract - Evidence adduced
- Effect of - Whether dismissal had been without just cause and excuse - Industrial
Relations Act 1967, s. 20(3)
Tan Seng Wong v. Ludwig Air Health Sdn Bhd
(Hapipah Monel) [2011] 1 ILR 357
Jurisdiction - Workman - Whether the claimant had been a workman within
the ambit of the Industrial Relations Act 1967 - Position held by claimant - Job
responsibilities of the claimant - Evidence adduced - Whether arrangement had been
characteristic of an employer-workman relationship - Effect of - Whether the Industrial
Court had jurisdiction to hear the matter - Effect of -Whether dismissal had been
without just cause and excuse - Industrial Relations Act 1967, ss. 2 and 20(3)
Tan Seng Wong v. Ludwig Air Health Sdn Bhd
(Hapipah Monel) [2011] 1 ILR 357
Procedure - Pleadings - What the company had pleaded in their pleadings
- Whether the claimant had been terminated or retrenched - Factors to consider -
Effect of - Contents of the claimant’s termination letter - "Retrenchment" not mentioned
anywhere in company’s documents and correspondences between the parties - Claimant
paid termination benefits - What that meant - Effect of - Whether there had been
a dismissal - Whether dismissal without just cause or excuse - Industrial Relations
Act 1967, ss. 20(3) & 30(5)
Patrick Wang v. Nichias Engineering (M) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 339
Remedies - Backwages - Whether appropriate to grant under the circumstances
- Whether there had been any contributory conduct on the part of the claimant -
Whether deductions should be made to the award for backwages - Factors to consider
- Effect of - Whether dismissal without just cause and excuse - Industrial Relations
Act 1967
Pang Swee Khin v. Crystal Road Construction Sdn Bhd
(Gabriel Gumis) [2011] 1 ILR 472
Remedies - Backwages - Whether it had been the most suitable to grant
- Factors to consider - Determination of quantum - Effect of - Industrial Relations
Act 1967
Edwin Anak Bakar v. Sarku Marine Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 375
Remedies - Compensation in lieu of reinstatement and backwages - Whether
appropriate to award - Factors to consider - Effect of - Calculation of the same
- Industrial Relations Act 1967
Cheaw Hon Leong v. Muller Martini (Malaysia) Sdn Bhd
(Yamuna Menon) [2011] 1 ILR 249
Remedies - Compensation in lieu of reinstatement - Whether it had
been a suitable remedy - Factors to consider - Claimant not working for the company
for 12 months in a year - Effect of - Industrial Relations Act 1967
Edwin Anak Bakar v. Sarku Marine Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 375
Remedies - Quantum of damages - Claimant claiming for interest on the
loan sum granted to the company - Whether it had been a contractual entitlement
under her contract of employment - Effect of - Whether the Industrial Court had
been the right forum to make such a claim - Effect of - Industrial Relations Act
1967
Yong Ha Lan v. Pemborong Chung Wai Wah & Sons Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 294
Remedies - Reinstatement - Whether appropriate to grant under circumstances
- Effect of - Industrial Relations Act 1967
Cheaw Hon Leong v. Muller Martini (Malaysia) Sdn Bhd
(Yamuna Menon) [2011] 1 ILR 249
Remedies - Reinstatement - Whether appropriate to grant under the circumstances
- Claimant unable to perform his functions as an Excavator and seeking light work
- Effect of - Time lapse between the time the claimant had been dismissed and this
reference - Whether reinstatement would be a conducive remedy to industrial harmony
- Factors to consider - Effect of - Whether dismissal without just cause and excuse
- Industrial Relations Act 1967
Pang Swee Khin v. Crystal Road Construction Sdn Bhd
(Gabriel Gumis) [2011] 1 ILR 472
Remedies - Reinstatement - Whether appropriate under the circumstances
- Factors to consider - Claimant engaged seasonally - What that meant - Effect of
- Industrial Relations Act 1967
Edwin Anak Bakar v. Sarku Marine Sdn Bhd
(P Iruthayaraj D Pappusamy) [2011] 1 ILR 375
Remedies - Reinstatement - Whether it would be appropriate to award in the circumstances
- Whether it would be conducive to industrial harmony - Effect of - Industrial Relations
Act 1967, s. 20(3)
Osman Rahmat v. Portcom Sdn Bhd
(Eddie Yeo Soon Chye) [2011] 1 ILR 448
Remedies - Reinstatement - Whether appropriate to grant under the circumstances
- Whether the claimant had worked after his termination - Whether there had been
any post dismissal earnings to take into account - Whether deductions should be
made to the award for compensation in lieu of reinstatement - Factors to
consider - Effect of - Whether dismissal without just cause and excuse - Industrial
Relations Act 1967
Pang Swee Khin v. Crystal Road Construction Sdn Bhd
(Gabriel Gumis) [2011] 1 ILR 472
TRADE DISPUTE
Collective Agreement - Interpretation of articles - Factors to consider
- Effect of - Industrial Relations Act 1967, s. 26(2)
Holiday Villages Of Malaysia Sdn Bhd v. Kesatuan Kebangsaan Pekerja-Pekerja Hotel,
Bar & Restoran Semenanjung Malaysia
(Ahmad Terrirudin Mohd Salleh) [2011] 1 ILR 394