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LATEST CASES (ILR Issue 4 of 2013) SUBJECT INDEX ADMINISTRATIVE LAW Judicial review - Certiorari - Application under O. 53 Rules of the High Court 1980 to challenge Industrial Court award - Whether reference to High Court on question of law should have been under s. 33A Industrial Relations Act 1967 and not under O. 53 - Whether s. 33A confined to reference on question of law and does not involve issues of facts, evidence and merits - Whether application under O. 53 correct mode CONTRACT OF EMPLOYMENT Terms and conditions - Retirement age - Claimant's employment letter silent on the age of retirement - Company informing claimant of retirement age by letter - Whether the company could unilaterally impose a retirement clause on the claimant - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Terms and conditions - Retirement age - Claimant's employment letter silent on the age of retirement - Whether the claimant had been aware of the retirement age - Whether the company had issued and circulated memos on the retirement age of employees - Evidence adduced - Claimant denying knowledge of those memos - Whether it had been probable that the claimant had been unaware of the memos - Claimant's tenure with the company - Effect of - Whether dismissal without just cause and excuse Terms and conditions - Retirement age - Conduct of claimant after being informed of retirement age - Whether it had indicated his acceptance of retirement - Effect of Terms and conditions - Retirement age - Employment contract silent on issue - Whether the company had intentionally tried to drive the claimant out of his employment after he reached retirement age - Evidence adduced - Evaluation of - Conduct of the company - Effect of - Whether proven by the claimant - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) and 30(5) Terms and conditions - Retirement age - Office Manual containing a clause on retirement - Claimant denying knowledge of policy - Evidence adduced - Whether it had been probable that the claimant had been unaware of the retirement age - Conduct of the claimant - Effect of Terms and conditions - Retirement age - Whether the claimant could work indefinitely - Expectations of the claimant - Whether it had been reasonable - Effect of - Practice of the company in relation to its other employees - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) DISMISSAL Absenteeism - Claimant absent from work without approval - Whether proven by the company - Evaluation of the evidence - Effect of - Claimant applying for leave thrice - Company rejecting - Whether the company's actions had been reasonable under the circumstances - Treatment of the claimant by the company - Position held by the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Claimant taking out the company's private and confidential documents without consent - Whether it had repudiated the relationship of trust and confidence between the parties - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Fraud/Dishonesty - Claimant negotiating settlement without authorisation from the company - Whether proven by the company - Evaluation of the evidence - Effect of - Position held by the claimant - Whether the settlement had benefited the company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules & policies - Whether the claimants' had received bribes - Results of the investigation by MACC - Whether it could be relied on by the company to dismiss the claimants - Factors to consider - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, Change of ownership - Company bought over by third party - Claimant not given notice - Claimant losing benefits - Effect of - Whether there had been a unilateral termination of the claimant's services by the company - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Constructive dismissal - Claimant issued transfer order - Claimant appealing transfer - Appeals dismissed - Whether the company's actions of issuing the transfer order had amounted to a repudiation of the claimants contract of employment - Factors to consider - Whether the claimant had successfully proven that he had been constructively dismissed - Evaluation of the evidence - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Insubordination - Company asking the claimant to explain the absence of his subordinates - Claimant's conduct and responses to the management - Whether his responses had been rude and arrogant - Whether the claimant's conduct had repudiated his contract of service - Evidence adduced - Effect of - Position held by the claimant in the company - Whether the claimant's behaviour had been acceptable - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Corrupt practice of receiving bribes - Claimants dismissed based on information received from Malaysian Anti-Corruption Commission (MACO) - Whether dismissal justified - No domestic inquiry - Whether company could rely on MACC findings to dismiss claimants - Industrial Relations Act 1967, s. 20(3) Misconduct - Sexual harassment - Claimant's conduct towards his subordinate - Whether in breach of his fiduciary duties to the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Sexual harassment - Whether the charges had been proven against the claimant - Evaluation of the evidence - Effect of - Whether the company's actions had been reasonable - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Retrenchment - Reorganisation - Circumstances surrounding claimant's employment - Whether his appointment had been permanent - Factors to consider - Effect of - Actions of the company - Whether the company had been justified in acting as it did - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Retrenchment - Reorganisation - Company running at a loss - Company undergoing reorganisation - Claimant retrenched based on the reorganisation - Claimant's functions transferred to another employee - Whether the claimant's position had become redundant - Factors to consider - Effect of - Whether the retrenchment had been carried out bona fide - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Retrenchment - Reorganisation - Company undergoing a reorganisation exercise - Whether a redundancy situation had existed - Evidence adduced - Evaluation of - Whether the principle of LIFO had been applicable - Factors to consider - Effect of - Whether retrenchment in accordance with good labour practice - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Retrenchment - Reorganisation - Whether the claimant had been given advance notice of his retrenchment - Steps taken by the company prior to retrenching the claimant - Effect of - Whether dismissal with just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) DOMESTIC INQUIRY Absence of - Rationale behind holding a Domestic Inquiry - Whether the findings of MACC had sufficed to satisfy the requirement of inquiry by the company - Effect of - Whether the company still had to conduct a separate Domestic Inquiry - Employment Act 1955, s. 14(1) Suspension - Notice of DI issued but subsequently retracted - Claimant issued a warning and transfer letter - Length of claimant's service with the company - Effect of - Whether the transfer & warning letter issued by the company had been a fundamental breach going to the root of the claimant's employment - Factors to consider - Effect of Suspension - Notice of DI issued - DI subsequently not held - Claimant issued warning and transfer letter - Whether it had amounted to double punishment - Factors to consider - Effect of Suspension - Whether the company's failure to hold the DI tantamounted to a dropping of the charges against the claimant - Whether issuance of final warning letter and transfer order meant claimant found guilty of misconduct - Whether claimant afforded opportunity to explain EVIDENCE Admissions - Statements given by claimants to MACC - Whether they had been voluntary - Whether the company had been right to rely on those statements and admissions to dismiss them - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Burden of proof - Whether the claimant had been dismissed with just cause and excuse - Whose burden to discharge - Whether the company could elect not to tender documents in support of its case - Effect of Corroboration - Outraging modesty - Whether satisfied by the respondent company - Complainant's demeanour in Court and her behaviour whilst giving her testimony - Effect of Documentary evidence - Admissibility of - Approaches taken by the Civil Courts and the Industrial Court - The test applied by both Courts - Effect of - Whether it had been conscionable to admit the e-mails - Factors to consider Documentary evidence - Admissibility of - Claimant attempting to tender highly confidential e-mails belonging to the company - Contents of the e-mails - Whether the said documents had been obtained improperly - Evidence adduced - Effect of Documentary evidence - Findings of the DI - Company failing to adduce documents relating to the DI at hearing - Claimant filing application for company to tender documents relating to the DI - Whether it had been relevant to the claimant's case - Factors to consider - Effect of Documentary evidence - Findings of the DI - DI finding the claimant guilty on 1 of 3 charges - Respondent company's Internal Affairs Department appealing the decision of the DI to the Disciplinary Appeals Committee - Powers of the Disciplinary Appeals Committee - Effect of - Whether the Disciplinary Appeals Committee had exercised its powers correctly - Factors to consider - Effect of Documentary evidence - Findings of the DI - Whether the findings of the DI had been perverse - Factors to consider - Effect of Hearsay evidence - When admissable - Factors to consider - Way in which the witnesses statements were recorded - Whether they had probative value - Effect of - Whether the witnesses should have been called to testify in court - Effect of Standard of proof - Whether reasonable grounds for believing in the guilt of the employee had been sufficient - Evaluation of recent case laws - Effect of Witness - Alibi evidence - Whether successfully proven by the claimant - Evidence adduced - Evaluation of - Effect of Witness - Credibility - Whether the company witnesses had been credible - Factors to consider - Effect of Witness - Failure to call - Company failing to call all witnesses - Whether it had been necessary - Whether it had been prejudicial to the company's case - Effect of INDUSTRIAL COURT Procedure - Action - Amendment application - Whether suitable to grant under the circumstances - Factors to consider - Effect of Procedure - Action - Award containing article to be interpreted quashed by High Court - Whether that destroyed the substratum of the present application - Effect of Procedure - Action - Striking out application - Date in the SOC differed from the date in the Ministerial Reference - Whether good grounds for striking out - Factors to consider - Whether there would be prejudice caused to the parties - Effect of - Industrial Relations Act 1967, ss. 20(3), 29(a) & 30(5) Procedure - Locus standi - Whether the company's representative satisfied the provisions of s. 27(1)(d) of the Industrial Relations Act 1967 - Evaluation of the legislation and case laws - Effect of - Industrial Relations Act 1967 s. 27(1)(d) Procedure - Parties - Whether the claimant had brought the action against the right party - Whether the company had been the claimant's employer at the material time - Factors to consider - Evidence adduced - Evaluation of - Effect of Procedure - Parties - Whether the claimant had brought the action against the right party - Who had the degree of control over the claimant at the material time - Evaluation of the evidence - Effect of Remedies - Backwages - Whether suitable to grant in circumstances - Factors to consider - Industrial Relations Act 1967, ss. 20(3) & 30(5) Remedies - Compensation - Adjustments, increments and benefits - Whether could be claimed by the claimant - Factors to consider - When such heads could be considered - Effect of Remedies - Compensation - Backwages - Whether the claimant could claim EPF contributions from the company under this head of relief - Factors to consider - Evaluation of the legislation - Effect of - Employees Provident Fund Act 1951, ss. 2, 7, 16 & Third Schedule and Industrial Relations Act 1967, s. 30(5) Remedies - Compensation - Compensation in lieu of reinstatement - Whether ought to be awarded - Factors to consider - Method of computation - Whether a reduction ought to be made in view of the claimant's behaviour - Evaluation of the evidence - Effect of INTERPRETATION Award - Award containing article to be interpreted quashed by High Court - Effect of INDEKS PERKARA UNDANG-UNDANG BURUH Pampasan pekerja - Sama ada kemalangan OB timbul sewaktu beliau menjalankan tugas - Faktor-faktor yang harus diambil kira - Kesannya - Akta Keselamatan Sosial Pekerja 1969, s. 24 Pampasan pekerja - Sama ada kemalangan OB timbul sewaktu beliau menjalankan tugas - Sama ada kecederaan OB merupakan bencana kerja - Tafsiran Akta Keselamatan Sosial Pekerja 1969 - Sama ada perundangan sosial harus diberikan penafsiran yang ketat - Faktor-faktor yang harus diambil kira - Kesannya - Akta Keselamatan Sosial Pekerja 1969, s. 24 |
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