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LATEST CASES (ILR Issue 8 of 2013) SUBJECT INDEX ADMINISTRATIVE LAW Judicial review - Certiorari - Application to quash award of Industrial Court - Dismissal - Whether High Court can interfere with findings of facts by Industrial Court - Whether breach of natural justice sufficient proof of victimisation - Whether charge against appellants proved - Whether dismissal harsh and disproportionate Rules of natural justice - Breach of - Dismissal - Disciplinary proceedings - Appellant dismissed from police force - Appellant asked to leave room when his witness was giving evidence before Investigation Committee - Whether appellant had knowledge as to what questions were put to his witness - Whether appellant had no opportunity to re-examine his witness - Whether a breach of natural justice - Public Officers (Conduct and Discipline) Regulations 1993, regs. 37(5) & 378B(3) CONTRACT Employment contract - Breach - Appellants' fixed term contracts not extended by second respondent - Contractual procedures - Whether followed - Questions of facts and law - Whether issues raised to be adjudicated by Industrial Court CONTRACT OF EMPLOYMENT Type of - Fixed-term contract - Claimant's contract of employment not extended upon expiry of his last contract - Whether the claimant had a legitimate expectation to have it renewed - Factors to consider - What the doctrine of legitimate expectation had meant - Whether it had applied in this case - Factors to consider - Effect of Type of - Fixed-term contract - Claimant's contract of employment not extended upon expiry of his last contract - Whether the claimant had a legitimate expectation to have it renewed - Factors to consider - Effect of Type of - Fixed-term contract - Whether the claimant's contracts of employment with the company had been genuine fixed-term contracts - Factors to consider - Effect of DISMISSAL Breach of company rules and policies - Claimant carrying on a business in competition with the company - Whether proven by the company - Evidence adduced - Effect of - Whether the company had given its consent for the carrying on of such business - Actions taken by the company upon finding out - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Insubordination - Claimant making the Managing Director of the company wait for two hours and then leave without seeing him - Whether that had constituted insubordinate behaviour - Effect of - Whether the claimant had good reasons for making the Managing Director wait two hours - Evidence adduced - Whether the claimant's behaviour had been acceptable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Insubordination - Claimant refusing to follow the instructions of her superiors - Whether proven by the company - Evidence adduced - Effect of - Whether the company had acted reasonably in terminating her - Whether dismissal without just cause and excuse Misconduct - Claimant making serious allegations against the management - Whether his allegations had any basis - Evaluation of the evidence - Effect of - What the claimant should have done - Company's actions towards the claimant - Whether the company had acted ruthlessly towards him - Effect of - Whether misconduct proven by the company - Whether it had constituted a breach of the fiduciary relationship between an employer and employee Misconduct - Claimant tearing up her Performance Appraisal forms - What it had shown - Attitude of the claimant - Whether the claimant's actions had been acceptable - The intention of the Performance Appraisal Forms - Whether the company had been reasonable in coming up with it - Effect of - Whether misconduct proven by the company - Claimant's defence - Whether sufficient to rebut - Evidence adduced Misconduct - Claimant using strong language against the management of the company - Whether proven by the company - Evidence adduced - Effect of - Position held by the claimant in the company - Whether his actions had been acceptable - Whether it had constituted a breach of the fiduciary relationship between an employer and employee - Whether the company had acted reasonably towards him - Whether the company had been reasonable in dismissing the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Whether the claimant's letters to the company and subsequently to the Securities Commission had been an attempt by him to slander and blackmail the company into settling his false claim - Evidence adduced - Evaluation of Notice of termination - Termination simpliciter - What it constituted - Whether valid in view of s. 20 of the Industrial Relations Act 1967 - Whether the company had dismissed the claimant on this basis - Factors to consider - Industrial Relations Act 1967, s. 20 Performance - Poor performance - Whether the claimant had been unable to perform due to his old age - Evidence adduced by the company - Effect of - Whether the claimant had been cautioned and reprimanded - Whether he had taken heed to it - Effect of Performance - Unsatisfactory performance - Claimant informed vide e-mail correspondences, Performance Appraisal Form and termination letter - Actions of the claimant subsequently - Whether non-performance proven by the company - Evidence adduced - Effect of - Whether the company had been reasonable in dismissing the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Performance - Unsatisfactory performance - Whether proven by the company - Evidence adduced - Evaluation of - Effect of - Conduct of the company towards the claimant - Effect of - Whether the company's actions had been reasonable under the circumstances - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Performance - Unsatisfactory performance - Whether the company had discharged its burden of proof - Evidence adduced - Evaluation of - Whether the company's actions had been reasonable - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Retrenchment - Cessation of business of PRHS - Claimant retrenched - Claimant paid a retrenchment amount - Claimant lodging a complaint with Industrial Relations Department - At re-conciliation meeting company offering him reinstatement with conditions - Whether the company's offer had been made in good faith - Factors to consider - Effect of - Claimant rejecting the offer - Reasons for the same - Whether his rejection had been justified - Factors to consider - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) EVIDENCE Burden of proof - Whether the company had discharged its burden of proving that the claimants had been dismissed with just cause and excuse - Evidence adduced - Effect of Documentary evidence - Admissibility of - Company seeking to tender audit report - What the audit report had shown - Whether reliance could be placed on its contents to establish the claimant's misconduct - Factors to consider - Effect of - What the company had to do Documentary evidence - Admissibility of - Company seeking to tender audit report - Whether it should be allowed - Factors to consider - Whether s. 73A of the Evidence Act had been fulfilled - Effect of - Evidence Act 1950, s. 73A Documentary evidence - Whether the company had been the claimants' employers - Factors to consider - Evidence adduced - Evaluation of - Effect of Witness - Material contradictions and inconsistencies - Whether had existed in claimants' testimonies - Incident taking place 18 years ago - Whether the contradictions had gone to the root of the matter - Education levels of the claimants - Effect of INDUSTRIAL COURT Jurisdiction - When the Industrial Court has jurisdiction to hear the matter - Whether existed in this matter Procedure - Action - Claimant bringing an action against the company for the Said Shares in the High Court - Judgement pronounced - Whether the matter could be re-adjudicated before the Industrial Court - Whether the principles of res judicata had applied to proceedings before the Industrial Court - Factors to consider Procedure - Parties - Joinder - Company's joinder application to join YHSB in Industrial Court and High Court dismissed - Company not applying for judicial review of decision - Reasons for the same - Whether acceptable - Whether the decision of the joinder application should be taken into account in determining outcome of the case - Effect of Remedies - Compensation - What would be reasonable to award to the claimants - Factors to consider Remedies - Reinstatement - Whether suitable to grant in circumstances LABOUR LAW Employment - Contract of employment - Appellants' fixed term contracts not extended by second respondent - Legitimate expectation - Failure of Minister to refer matter to Industrial Court - Whether second respondent followed contractual procedures before deciding not to extend appellants' contract - Whether issues raised to be adjudicated by Industrial Court Employment - Dismissal - Judicial review - Application to quash award of Industrial Court - Whether defect in domestic enquiry can be corrected by Industrial Court - Whether appellant victimised - Whether High Court could interfere with findings of fact by Industrial Court - Whether dismissal harsh and disproportionate Industrial Court - Representation to Minister - Appellants' fixed term contracts not extended by second respondent - Failure of Minister to refer matter to Industrial Court - Whether Minister exercised discretion correctly - Whether Minister acted in excess of jurisdiction - Whether appellants' contracts contained questions of facts and law which ought to be referred to Industrial Court - Industrial Relations Act 1967, s. 20(3) POLICE Disciplinary proceedings - Dismissal - Setting up of Investigation Committee to obtain further clarification - Proceedings of - Appellant asked to leave room when his witness was giving evidence - Whether appellant had knowledge as to what questions were put to his witness - Whether appellant had no opportunity to re-examine his witness - Whether a breach of natural justice - Public Officers (Conduct and Discipline) Regulations 1993, TRADE DISPUTE Collective Agreement - Article on public holidays - Respondent unilaterally introducing a floating public holiday scheme - Whether they had been in breach of the terms of the Collective Agreement - When the terms of a Collective Agreement could be varied - Factors to consider - Whether it had been within the scope of management's prerogative - What the respondent should have done - Industrial Relations Act 1967, ss. 26(2) & 30(5) Collective Agreement - Article on salary adjustment - Respondent unilaterally giving a salary adjustment to selected employees - Whether they had been in breach of the terms of the Collective Agreement - When the terms of a Collective Agreement could be varied - Factors to consider - Whether the respondent had discriminated against its employees - Whether fair and reasonable criteria had been used in granting the salary adjustment - Factors to consider - Industrial Relations Act 1967, ss. 17(2) and 26(2) Collective agreement - Paid union leave - Whether should have been granted by the company - Affected workman facing poor appraisal due to numerous unpaid leave taken due to union activity - Complaint lodged with union - Disciplinary action taken against the affected workman - Whether the company had acted mala fide - Factors to consider - What the company should have done - Effect of - Industrial Relations Act 1967, ss. 6 & 20(3) |
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