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LATEST CASES (ILR Issue 7 of 2013) SUBJECT INDEX ADMINISTRATIVE LAW Exercise of administrative powers - Judicial Review - Application to quash decision of Minister of Human Resources in refusing to refer dispute to Industrial Court - Whether Minister took into account relevant matters - Whether judicial review application within time limit - Whether proper party being sued - Specific Relief Act 1950, s. 44(1) - Rules of the High Court 1980, O. 53 Judicial review - Remedies - Certiorari - Application for - Application to quash decision of first respondent made under Employees Provident Fund Act 1991 - Whether applicant entitled to EPF contributions - Whether second respondent liable to make contributions to EPF - Whether applicant an employee of second respondent within meaning of Employees Provident Fund Act 1991 - Whether first respondent misconstrued law - Whether irrelevant matters taken into consideration - Whether application dismissed CONTRACT OF EMPLOYMENT Resignation - Whether the claimant had voluntarily resigned - Evidence adduced - Effect of DISMISSAL Breach of company rules and policies - Fraud/Dishonesty - Claimant accepting incentive payments although not participating in the FgF programme - Whether proven by the company - Evaluation of the evidence - Effect of - Whether the claimant's conduct had led her to lose the trust and confidence of her employer - Whether she had been victimised by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Fraud - Whether proven against the claimant - Evaluation of the evidence adduced -Whether the claimant had the authorisation of his superior - Effect of - Whether the claimant had been aware of the procedure - Whether the procedure had been circulated to him - Effect of - Whether the claimant could have averted the fraud - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Negligence - Whether the claimant had delayed in posting the stamp duty - Evidence adduced - Effect of - Whether it had been a serious misconduct - Whether it had justified his dismissal - Whether dismissal without just cause and excuse Constructive dismissal - Salary - Non-payment - Claimant continuing to work with the company - Reasons for the same - Conduct of the company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Constructive dismissal - Salary - Non-payment - Whether a fundamental breach going to the root of the contract of employment - Effect of - Whether the company's financial position had justified the non-payment of salary - Conduct of the company - Effect of - Whether the claimant had raised a grievance with the company - How the company had dealt with it - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Claimant drafting clarification for newspaper - Whether the claimant had an ulterior motive in doing so - Whether proven by the company - Evidence adduced - Effect of - Whether the claimant had obtained the authorisation of his superior - Effect of - Whether the company's actions towards him had been reasonable - Factors to consider - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Company raising issues concerning the claimant - Whether the company had successfully proven them - Effect of - Whether dismissal without just cause and excuse Performance - Unsatisfactory performance - Whether proven by the company - Evidence adduced - Effect of - Whether the claimant had been warned -Whether there had been a necessity to warn the claimant - Position held by the claimant in the company - Effect of - Whether the claimant had been aware of the standards required of him - Whether dismissal without just cause and excuse Performance - Unsatisfactory performance - Whether proven by the company - Whether the claimant had been warned - Evidence adduced - Effect of - Claimant's attitude towards his work - Whether dismissal without just cause and excuse Performance - Unsatisfactory performance - Whether the claimant's appraisal had been conducted fairly - Evidence adduced - Claimant endorsing them - What that had meant - Whether unsatisfactory performance proven by the company -Whether the company's actions had been reasonable under the circumstances - Whether the company had mala fide intentions - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Performance - Unsatisfactory performance - Whether the claimant had a bad working attitude - Whether proven by the company - Evidence adduced - Evaluation of - Effect of - Conduct of the company - Whether the company's actions had been reasonable under the circumstances - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Performance - Unsatisfactory performance - Whether the company had guided and advised him - What that had shown - Whether the claimant had been accorded sufficient opportunity to improve - Effect of Probationer - Whether the claimant had been a probationer at the time of dismissal - Factors to consider - Claimant accepting the extension to his probation period without protest - Effect of - Conduct of the claimant subsequently - What it had shown Probationer - Whether the claimant had been a probationer at the time of dismissal - Factors to consider - Conduct of the company towards him - Effect of DOMESTIC INQUIRY Procedural impropriety - Charges preferred against the claimant - Panel amending the charges - Whether the panel had the right to amend the charges - Conduct of panel subsequently - Whether against the principles of natural justice - Factors to consider - Role of the panel of DI EVIDENCE Admissions - Whether the company had proven the claimant's admission to the charges - Effect of - Whether the findings of the DI had been perverse Witness - Conflicting evidence - Different versions by company and claimant - Whose version had been more probable - Factors to consider - Effect of Witness - Credibility - Whether COW2 had been a credible witness - COW2's demeanour in Court - Effect of - Whether COW2's evidence could be accepted - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) INDUSTRIAL COURT Jurisdiction - Challenge to - Whether should be made by way of preliminary objection - Intention of the legislature - Effect of - Industrial Relations Act 1967, s. 20(3) Jurisdiction - Extra territorial jurisdiction - Whether possessed by the Industrial Court Jurisdiction - Threshold jurisdiction of Court - How obtained - Effect of - Industrial Relations Act 1967, s. 20(3) 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 - Who had been the claimant's employer at the material time - Effect of - Whether the Industrial Court could adjudicate on whether the dismissal had been with just cause and excuse 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 - Reinstatement - Whether suitable to grant in circumstances - Claimant 71 at time of hearing - Factors to consider LABOUR LAW Employment - Applicant given show cause letter - Whether show cause letter stated that applicant liable to punishment of reduction of rank or disposal - Whether Minister took into account applicant's previous disciplinary record Industrial Court - Dismissal - Discretion of Minister in referring disputes to Industrial Court - Whether Minister took into account relevant matters - Whether Minister's decision can be interfered with by Industrial Court PROVIDENT FUND Employer's contribution - Failure to pay contributions - Whether liable - Whether applicant an employee of second respondent within meaning of Employees Provident Fund Act 1991 - Whether applicant a person employed under a contract of service - Whether second respondent intended to employ applicant as an employee - Whether applicant's service was a contract for service - Whether applicant entitled to EPF contributions NON-COMPLIANCE Collective Agreement - Article on internal settlement of disputes - Whether complied with by the aggrieved party - Factors to consider - Whether they had been time barred - Limitation Act 1953, s. 6(1) Collective agreement - Article on internal settlement of disputes - Whether complied with by the respondents - Evidence adduced - Effect of - Whether the intention of the article had been clear and unambiguous - Factors to consider - What the respondents should have done - Industrial Relations Act 1967, s. 56(1) INDEKS PERKARA KETERANGAN Pengakuan - YM mengaku kesalahannya - Kesannya - Sama ada pengakuan YM sahaja mencukupi untuk memberhentikan perkhidmatannya - Faktor yang harus diambil kira oleh syarikat sebelum menamatkan perkhidmatannya - Sama ada pembuangan kerja YM dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) MAHKAMAH PERUSAHAAN Remedi - Hukuman - Faktor-faktor mitigasi - Sama ada syarikat harus memberikan pertimbangan kepada faktor-faktor mitigasi YM - YM mengaku kesalahannya - Kesannya - Sama ada tindakan syarikat menamatkan perkhidmatan YM mengambil kira prinsip keadilan asasi, prinsip ekuiti dan/atau perasaan nurani yang baik PEMBUANGAN KERJA Ketidakpatuhan terhadap peraturan dan polisi syarikat - Kegagalan merakam waktu keluar masuk kerja - Sama ada berjaya dibuktikan oleh syarikat - YM mengaku kepada salahlaku tersebut - Kesannya - Penjelasan YM - Sama ada wajar diterima - Sama ada salahlaku tersebut berjaya dibuktikan - Sama ada pembuangan kerja YM dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) Pemecatan secara konstruktif - Gaji - Penolakan keseluruhan gaji YM - Sama ada menunjukkan bahawa syarikat tidak lagi berminat untuk terikat dengan kontrak perkhidmatan YM - Keterangan yang dikemukakan - Kesannya - Tindakan yang diambil oleh syarikat - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) Pemecatan secara konstruktif - Gaji - Penolakan keseluruhan gaji YM - Sebab penolakan tersebut dibuat - Sama ada merupakan kemungkiran fundamental yang pergi kepada asas kontrak perkhidmatan YM - Keterangan yang dikemukakan - Kesannya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) |
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