<< Back BULLETIN 10/2013

LATEST CASES (ILR Issue 9 of 2013)

SUBJECT INDEX

CIVIL PROCEDURE

Judicial review - Application to quash award of Industrial Court - Claimant granted backwages and compensation in lieu of reinstatement for being unfairly dismissed - Gross negligence resulting in loss of sum - Defence of compliance with superior orders - Whether Industrial Court erred in decision - Whether intention an ingredient of negligence - Whether instructions by superior lawful
PSC-Naval Dockyard Sdn Bhd v. Mahkamah Perusahaan Malaysia, Cawangan Perak & Anor
(Lee Swee Seng JC) [2013] 3 ILR 465 cljlaw labourlaw

CONTRACT OF EMPLOYMENT

Resignation - Whether the claimant had voluntarily resigned - Evidence adduced - Effect of
Tan Lay Wah v. Yuasa Battery (Malaysia) Sdn Bhd
(Anna Ng Fui Choo) [2013] 3 ILR 606 cljlaw labourlaw

DISMISSAL

Constructive dismissal - Benefits - Company increasing the claimant's sales targets - Claimant's commissions affected - Claimant seeking an explanation and not receiving one - Whether the company in its reply to her had demoted her - Perusal of the company's reply - Effect of - Whether it had been the company's prerogative to vary her sales targets - Whether it had amounted to a fundamental breach going to the root of her contract of employment - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) and 30(5)
Tan Lay Wah v. Yuasa Battery (Malaysia) Sdn Bhd
(Anna Ng Fui Choo) [2013] 3 ILR 606 cljlaw labourlaw

Constructive dismissal - Benefits - Company increasing the claimant's sales targets without explanation - Whether the claimant had been the only one affected - Reasons for the same - Whether the claimant had been aware of the power of the company to review it - Effect of
Tan Lay Wah v. Yuasa Battery (Malaysia) Sdn Bhd
(Anna Ng Fui Choo) [2013] 3 ILR 606 cljlaw labourlaw

Constructive dismissal - Benefits - Variable income bonuses - Non-payment of - Whether the claimants had been entitled to it - Evidence adduced - Effect of - Whether it had been a sufficient ground to rely on to claim constructive dismissal - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ricky Lim Han Keong & Yang Lain v. Siemens Malaysia Sdn Bhd
(Ong Geok Lan) [2013] 3 ILR 685 cljlaw labourlaw

Constructive dismissal - Demotion - Claimant involved in a fight at the workplace and given a demotion letter - Whether the company had investigated the matter before taking action - Whether the claimant had been afforded an opportunity to explain - Evidence adduced - Effect of - Conduct of the claimant - Whether he had raised his grouses with the management of the company - Conduct of the company - Whether it had been against the rules of natural justice - What the company should have done - Effect of - Whether the elements of constructive dismissal had been proven by the claimant - Whether dismissal without just cause and excuse
Chandran S Vangadajelam v. J G Direct (M) Sdn Bhd
(Rajendran Nayagam) [2013] 3 ILR 562 cljlaw labourlaw

Constructive dismissal - Salary - Claimants' salaries for December paid late - Whether proven by the claimants - Evidence adduced - Whether it had amounted to a fundamental breach which had gone to the root of their contracts of employment - Reasons for the late payment of salary - Whether the claimants had given the company an opportunity to rectify the breach - Whether they should have - Whether the company by their actions had evinced an intention not to be bound by the contracts of employment - Whether the claimants had been constructively dismissed by the company - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ricky Lim Han Keong & Yang Lain v. Siemens Malaysia Sdn Bhd
(Ong Geok Lan) [2013] 3 ILR 685 cljlaw labourlaw

Constructive dismissal - Salary - Late payment of salary and non-payment of variable income bonuses - Claimants walking out claiming constructive dismissal - Whether they had satisfied all the requirements of constructive dismissal - Evidence adduced - Evaluation of
Ricky Lim Han Keong & Yang Lain v. Siemens Malaysia Sdn Bhd
(Ong Geok Lan) [2013] 3 ILR 685 cljlaw labourlaw

Misconduct - Claimant absent from work without leave to attend trade union activities - Claimant issued show cause and warning letters but not paying heed - Effect of - Whether the claimant by his actions had knowingly and blatantly disregarded the bank's policies - Whether the claimant had been in breach of the Collective Agreement - Effect of - Whether the bank had reasonable grounds for believing that the misconduct had been established - Whether the bank had acted reasonably in thinking that the claimant had committed the misconduct - Whether dismissal had been appropriate - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Muhammad Fauzi Shamsuddin v. EON Bank Berhad
(Yamuna Menon) [2013] 3 ILR 532 cljlaw labourlaw

Misconduct - Claimant absent from work without leave to attend trade union activities - Whether proven by the company - Evidence adduced - Effect of - What had governed the claimant's terms and conditions of service - Whether the claimant had complied with it - Effect of - Conduct of the bank - Whether it had condoned the claimant's actions - Factors to consider - 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)
Muhammad Fauzi Shamsuddin v. EON Bank Berhad
(Yamuna Menon) [2013] 3 ILR 532 cljlaw labourlaw

Misconduct - Claimant absent without leave - Reasons for the same - Whether the company had been aware of the reasons for his absence - Company supporting the claimant in the past - Whether it should have informed the claimant of the rejection of his leave application sooner - Factors to consider - Effect of - Whether the company had acted reasonably in dismissing the claimant - What the company should have done instead
Mashkon Hj Samuri v. Orang Kampung Holdings (M) Sdn Bhd
(Mary Shakila G Azariah) [2013] 3 ILR 574 cljlaw labourlaw

Misconduct - Claimant accused of selling contraband items on board the aircraft - Whether proven by the company - Evidence adduced - Effect of - Whether the company had been reasonable in dismissing the claimant
Mazlin Desa v. Malaysian Airline System Berhad
(Eddie Yeo Soon Chye) [2013] 3 ILR 646 cljlaw labourlaw

Misconduct - Claimant accused of selling perfume which had not been In-Flight items - Whether 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)
Mazlin Desa v. Malaysian Airline System Berhad
(Eddie Yeo Soon Chye) [2013] 3 ILR 646 cljlaw labourlaw

Misconduct - Claimant accused of viewing and circulating pornographic material - Claimant found guilty - Claimant putting in his letter of mitigation - Whether it had been involuntary and null and void - Factors to consider - 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)
Jaya Balan @ Sundra Raj Suppiah v. Texas Instrument (M) Sdn Bhd
(Tay Lee Ly) [2013] 3 ILR 502 cljlaw labourlaw

Misconduct - Claimant accused of viewing and circulating pornographic material - Whether proven by the company - Evidence adduced - Effect of - Whether it had justified the company dismissing him - Factors to consider - Whether the Company's Acceptable Use Policy had been in effect at the material time - Effect of - Whether the claimant's misconduct had been a gross violation of company policy - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Jaya Balan @ Sundra Raj Suppiah v. Texas Instrument (M) Sdn Bhd(Tay Lee Ly) [2013] 3 ILR 502 cljlaw labourlaw

Misconduct - Claimant allegedly accessing pornographic material - Whether 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)
Lim Chiew Seng v. Jobstreet.com Sdn Bhd
(Mary Shakila G Azariah) [2013] 3 ILR 664 cljlaw labourlaw

Misconduct - Claimant allegedly being disobedient - Whether proven by the company - Evidence adduced - Effect of - Whether the company witnesses had all ganged up on him - Factors to consider - 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)
Lim Chiew Seng v. Jobstreet.com Sdn Bhd
(Mary Shakila G Azariah) [2013] 3 ILR 664 cljlaw labourlaw

Misconduct - Claimant allegedly harassing a colleague and arguing with the security guard over the type of food provided at the training - Whether 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)
Lim Chiew Seng v. Jobstreet.com Sdn Bhd
(Mary Shakila G Azariah) [2013] 3 ILR 664 cljlaw labourlaw

Misconduct - Claimant allegedly possessing strange behaviour, mannerisms and demeanour - Whether proven by the company - Evidence adduced - Effect of - Claimant's demeanour in court - Effect of - Position held by the claimant in the company - Whether the company could be expected to retain him - Reputation of the company - 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)
Lim Chiew Seng v. Jobstreet.com Sdn Bhd
(Mary Shakila G Azariah) [2013] 3 ILR 664 cljlaw labourlaw

Misconduct - Claimant allegedly selling promotional items to customers exceeding the company's directives - Whether 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)
Rahim Ghani Mohamed Ali v. Mydin Mohamed Holdings Berhad
(Anna Ng Fui Choo) [2013] 3 ILR 677 cljlaw labourlaw

Misconduct - Claimant failing to submit his daily work functions and punch in his attendance card - Whether proven by the company - Evidence adduced - Evaluation of - Whether the claimant had been warned - Effect of - Claimant issued show cause letter followed by a warning letter - Whether the issuance of a warning letter had deemed the misconduct spent - Whether the same ground could subsequently be re-used to terminate him - Whether the company's actions had been fair - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mashkon Hj Samuri v. Orang Kampung Holdings (M) Sdn Bhd
(Mary Shakila G Azariah) [2013] 3 ILR 574 cljlaw labourlaw

Misconduct - Whether the claimant had been disrespectful to her management - Factors to consider - Evidence adduced - Effect of - Whether dismissal without just cause and excuse
Tan Lay Wah v. Yuasa Battery (Malaysia) Sdn Bhd
(Anna Ng Fui Choo) [2013] 3 ILR 606 cljlaw labourlaw

Performance - Unsatisfactory performance - Charges levelled against the claimant for the first time at the DI - Whether it had been in breach of the rules of natural justice - What the company should have done - Effect of - Whether charges proven by the company - Evidence adduced - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mashkon Hj Samuri v. Orang Kampung Holdings (M) Sdn Bhd
(Mary Shakila G Azariah) [2013] 3 ILR 574 cljlaw labourlaw

Performance - Unsatisfactory performance - Whether proven by the company - Evidence adduced - Evaluation of - Effect of - Whether it had been an afterthought - 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)
Chandran S Vangadajelam v. J G Direct (M) Sdn Bhd
(Rajendran Nayagam) [2013] 3 ILR 562 cljlaw labourlaw

Performance - Unsatisfactory performance - Whether the charges had been pleaded by the company - Effect of - Evidence adduced - Whether the evidence should be rejected - Effect of - Delay by company in taking action - No explanation given for the delay - Whether it had amounted to condonation - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mashkon Hj Samuri v. Orang Kampung Holdings (M) Sdn Bhd
(Mary Shakila G Azariah) [2013] 3 ILR 574 cljlaw labourlaw

Retrenchment - Company downsizing - Certain positions advertised in the newspapers - Reasons for the same - Whether the claimant had been offered those positions - Whether the claimant had been suitable for those positions - Factors to consider - Whether the company had acted bona fide - Effect of - Whether dismissal without just cause and excuse
Wong Sun Fatt v. ISS Facility Services Sdn Bhd
(Ong Geok Lan) [2013] 3 ILR 486 cljlaw labourlaw

Retrenchment - Company downsizing - Reasons for the same - Whether the claimant had been aware of the reasons - Effect of - Whether the claimant's position had been in excess of the company's requirements - Factors to consider - Effect of - Whether there had been a genuine redundancy - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Wong Sun Fatt v. ISS Facility Services Sdn Bhd
(Ong Geok Lan) [2013] 3 ILR 486 cljlaw labourlaw

EVIDENCE

Admissibility - Statutory Declarations by company deponents - Deponents not called for hearing - Whether the Statutory Declarations should be accepted into evidence - Factors to consider
Lim Chiew Seng v. Jobstreet.com Sdn Bhd
(Mary Shakila G Azariah) [2013] 3 ILR 664 cljlaw labourlaw

Admissibility - Statutory Declaration of Gunaratnam - Whether hearsay evidence - Gunaratnam not called for cross-examination - Effect of - Whether the Statutory Declaration had been admissible
Jaya Balan @ Sundra Raj Suppiah v. Texas Instrument (M) Sdn Bhd
(Tay Lee Ly) [2013] 3 ILR 502 cljlaw labourlaw

Admissions - Whether the statement by the claimant had been admissible - Factors to consider - Whether investigations could only be carried out by employees of the company - Whether the statement had been made voluntarily by the claimant - Evidence adduced - Effect of
Jaya Balan @ Sundra Raj Suppiah v. Texas Instrument (M) Sdn Bhd
(Tay Lee Ly) [2013] 3 ILR 502 cljlaw labourlaw

Documentary evidence - Findings of the Domestic Inquiry - Whether it had been valid - Whether the notes had been accurate - Factors to consider
Jaya Balan @ Sundra Raj Suppiah v. Texas Instrument (M) Sdn Bhd
(Tay Lee Ly) [2013] 3 ILR 502 cljlaw labourlaw

INDUSTRIAL COURT

Remedies - Compensation - Claimant an undischarged bankrupt - Who should receive his compensation - Factors to consider - Whether it could be received by the claimant - Bankruptcy Act 1967, ss. 24(4), 38(1) & 38(1)(ba)
Mashkon Hj Samuri v. Orang Kampung Holdings (M) Sdn Bhd
(Mary Shakila G Azariah) [2013] 3 ILR 574 cljlaw labourlaw

Remedies - Compensation - Whether the claimant's conduct had contributed to his dismissal - Factors to consider - Position held by the claimant - Effect of - What would be a reasonable percentage to deduct from his quantum
Rahim Ghani Mohamed Ali v. Mydin Mohamed Holdings Berhad
(Anna Ng Fui Choo) [2013] 3 ILR 677 cljlaw labourlaw

LABOUR LAW

Industrial Court - Award - Application to quash award upholding claimant's case of unfair dismissal - Whether Industrial Court committed an error of law warranting High Court's interference - Whether onus on employer to have called claimant's superior to rebut claimant's defence of compliance with superior order
PSC-Naval Dockyard Sdn Bhd v. Mahkamah Perusahaan Malaysia, Cawangan Perak & Anor
(Lee Swee Seng JC) [2013] 3 ILR 465 cljlaw labourlaw

NON-COMPLIANCE

Collective Agreement - Article on payment of bonus - Whether complied with by the respondent - Reasons for the same - Whether special circumstances had existed to vary the article - Factors to consider - Effect of - Whether there had been non-compliance by the respondent - Industrial Relations Act 1967, s. 56(2)(c)
Metal Industry Employees Union v. Yodoshi Malleable (M) Sdn Bhd
(Susila Sithamparam) [2013] 3 ILR 621 cljlaw labourlaw

SALARIES & WAGES

Deductions - Whether the company had made Employees Provident Fund deductions to her sales commissions - Whether the claimant's sales commissions had been part of her wages - Factors to consider
Tan Lay Wah v. Yuasa Battery (Malaysia) Sdn Bhd
(Anna Ng Fui Choo) [2013] 3 ILR 606 cljlaw labourlaw

TRADE DISPUTE

Collective Agreement - Terms and conditions of service - Engagement of contract workers by the company - Whether it had come within the definition of trade dispute - What trade dispute covered - Effect of - Whether the company had abused its management's prerogative in engaging contract workers - Reasons why the contract workers had been engaged - Effect of - Industrial Relations Act 1967, ss. 13(3) & 26(2)
Kesatuan Pekerja-Pekerja Perusahaan Simen (SM) v. Lafarge Cement Berhad
(P Iruthayaraj D Pappusamy) [2013] 3 ILR 632 cljlaw labourlaw

Collective Agreement - Terms and conditions of service - Whether the VSS scheme had been forcefully imposed by the company - Evidence adduced - Effect of - Whether the union had been consulted - Effect of - Industrial Relations Act 1967, ss. 26(2) & 30(5)
Kesatuan Pekerja-Pekerja Perusahaan Simen (SM) v. Lafarge Cement Berhad
(P Iruthayaraj D Pappusamy) [2013] 3 ILR 632 cljlaw labourlaw

INDEKS PERKARA

PEMBUANGAN KERJA

Prestasi kerja - Prestasi kerja yang kurang memuaskan - Sama ada berjaya dibuktikan oleh syarikat - Keterangan yang dikemukakan - Kesannya - Sama ada YM telah diberi amaran oleh syarikat - Sama ada YM telah diberi peluang untuk meningkatkan prestasinya - Kelakuan YM – Kesannya
Jasmin Jamaran lwn. Airport Limo (M) Sdn Bhd
(Ong Geok Lan) [2013] 3 ILR 568 cljlaw labourlaw

Salahlaku - YM menggunakan kenderaan syarikat tanpa mengikut polisi dan prosedur syarikat - Sama ada salahlaku tersebut berjaya dibuktikan oleh syarikat - Keterangan yang dikemukakan - Kesannya - Sama ada pembuangan kerja YM dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Jasmin Jamaran lwn. Airport Limo (M) Sdn Bhd
(Ong Geok Lan) [2013] 3 ILR 568 cljlaw labourlaw

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