| << Back | BULLETIN 11/2013 |
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LATEST CASES (ILR Issue 10 of 2013) SUBJECT INDEX CONTRACT OF EMPLOYMENT Resignation - Whether the claimant had been forced to resign - Evidence adduced - Effect of Resignation - Whether the claimant had voluntarily resigned - Evidence adduced - Effect of DISMISSAL Abandonment - Whether the claimant had abandoned his employment - Factors to consider - Conduct of the claimant after he had left the company - Effect of Absenteeism - Whether the claimant had been absent without leave - Whether proven by the company - Evidence adduced - Effect of - Whether the company's actions towards him had been reasonable - Factors to consider Breach of company rules and policies - Carelessness - Whether the claimant had been careless in carrying out his job - Whether the company had suffered losses - Evidence adduced - Effect of - Whether proven by the company - Whether justified the claimant's dismissal Breach of company rules and policies - Fraud/Dishonesty - Claimant using SAA's credit card without authorisation - Whether proven by the company - Evidence adduced - Evaluation of - Effect of - Company suffering loss - Whether the claimant's actions had been fraudulent - Implications of his actions to the company - Whether the company had been justified in dismissing him - Factors to consider - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Fraud - Not pleaded by the company - Effect of - Whether the allegation had been justified - Evidence adduced Breach of company rules and policies - Insubordination - Whether the claimant had failed to follow the instructions of the company - Evidence adduced - Effect of - Whether the allegation had been proven by the company - Whether dismissal without just cause and excuse Constructive dismissal - Benefits - Company failing to deduct EPF payments from claimant's salary - Reasons for the same - Whether it had been done at the claimant's request - Evidence adduced - Effect of Constructive dismissal - Transfer - Reasons for the transfer - Whether the company had behaved with mala fide intent towards him - Whether the claimant had been victimised - Evidence adduced - Effect of - Reasons for the claimant refusing to go on transfer - Whether it had been reasonable - Company's actions towards him - Whether the company's actions had been justified - Evidence adduced - Effect of - Whether the claimant had been constructively dismissed Constructive dismissal - Transfer - Whether the claimant had satisfied the requirements of constructive dismissal - Evidence adduced - Effect of - What the claimant should have done Misconduct - Claimant accused of imposing additional charges on the customers - Whether proven by the company - Evidence adduced - Effect of - Whether the company had been reasonable in dismissing the claimant - Whether dismissal without just cause and excuse Misconduct - Claimant allegedly uttering threatening words to his superior - 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) Misconduct - Claimant making a notation on the Relief Form - Whether she had been dismissed for it - Evidence adduced - Factors to consider - Effect of - Claimant not writing to the company on what had transpired - What that had shown - What she should have done - Whether dismissal without just cause and excuse Performance - Unsatisfactory performance - Sales - Claimant failing to secure any sales - Whether proven by the company - Evidence adduced - Whether the claimant had been given training and assistance to achieve her sales targets - Whether the company had been justified in dismissing her - Factors to consider - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Performance - Unsatisfactory performance - Weak product knowledge - Claimant admitting to it - Effect of - Whether this ground had been proven by the company - Evidence adduced - Whether the company had been justified in dismissing her Performance - Unsatisfactory performance - Whether proven by the company - Whether the claimant had been warned - Evidence adduced - Effect of - Whether written warnings had been necessary - Whether dismissal without just cause and excuse Performance - Unsatisfactory performance - Whether the claimant had negative behaviour - Whether proven by the company - Evidence adduced - Evaluation of - Effect of - Conduct of the company - Whether the claimant had breached a fundamental term of her contract of employment - 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) Probationer - Claimant's probation extended - Whether she had been harassed to accept the extension - Evidence adduced - Effect of - Whether the claimant had been a probationer at the time of dismissal - Factors to consider - Conduct of the company towards her - Conduct of the claimant after her extension of probation - Effect of Retrenchment - Redundancy - Claimants dismissed on basis of redundancy - Company offering them alternative employment - Whether the offers had been genuine - Evidence adduced - Factors to consider Retrenchment - Redundancy - Whether the claimants' job functions had ceased to exist - Evidence adduced - Job functions given to individuals from a separate legal entity - Whether acceptable - Reasons given by the company - Effect of - Whether the company's decision to retrench the claimants had been carried out properly - Whether dismissal without just cause and excuse Retrenchment - Redundancy - Whether the claimants' positions had been redundant - Whether proven by the company - Evidence adduced - Effect of - Whether the company's decision to retrench them had been bona fide - Factors to consider - Effect of - Whether re-organisation had been sufficient to justify their dismissals - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) DOMESTIC INQUIRY Procedural impropriety - Charges against the claimant - Whether it had contained material particulars - Factors to consider - Effect of - Whether the charge had been void ab initio Procedural impropriety - Claimant not shown complaints lodged against him - COW3 who had verified the complaints not called as a witness at the DI - Effect of - Whether the claimant had been given a fair opportunity to defend himself - Factors to consider - Whether the company had been in breach of the rules of natural justice - Whether the DI conducted had been valid EVIDENCE Adverse inference - Company failing to produce Mohd Iskandar in Court - Reasons for the same - Whether he had been a material witness - Whether the company had taken all reasonable steps to secure his attendance in Court - Effect of - Whether an adverse inference ought to be drawn against them - Factors to consider - Evidence Act 1950, s. 114(g) Burden of proof - No dismissal letter issued by the company - Whose burden to prove dismissal Burden of proof - Where dismissal in dispute who bears the burden to prove - Whether discharged in this case Documentary evidence - Admissibility of - Minutes of meeting between the respondents, officers of the Industrial Relations Department or the DGIR - Whether admissible - Whether appropriate to allow into evidence - Whether addressed by the Industrial Relations Act 1967 - Industrial Relations Act 1967, s. 54 Documentary evidence - Findings of the DI - Not produced in Court - Effect of Witness - Conflicting evidence - CLW2's evidence constantly changing - Whether CLW2 had been a fair and impartial witness - Factors to consider - Effect of - Whether CLW2 had been a believable witness Witness - Conflicting evidence - COW1's evidence in Court and at the Domestic Inquiry contradicting each other - Effect of - Whether COW1 had been a credible witness - Factors to consider Witness - Credibility - Whether COW1 had been a credible witness - Factors to consider - Whether she had been in a position to determine whether the claimants' positions had been redundant Witness - Credibility - Whether the company's witnesses had been credible - Two completely different versions given by the parties as to what had transpired - Whose evidence more probable - Factors to consider - Effect of Witness - Failure to call - Company failing to call SAA to testify at DI and in Court - Whether it had impaired the company's case - Factors to consider Witness - Failure to call - Company failing to call the person(s) who had taken the decision to dismiss the claimants - Effect of - Whether they should have called such person(s) INDUSTRIAL COURT Jurisdiction - Claimant failing to plead reinstatement in her Statement Of Case - Whether it had been fatal to her case - Whether the Industrial Court had jurisdiction to hear the matter - Factors to consider - Effect of - What the claimant should have done - Industrial Relations Act 1967, ss. 20(1), 20(3) & 30(1) Jurisdiction - Whether the court could interpret the CA in non-compliance proceedings - Industrial Relations Act 1967, s. 56(2A) Procedure - Amendment of pleadings - Claimant seeking to amend Statement of Case and Rejoinder - Whether should be allowed - Factors to consider - Effect of Procedure - Pleadings - Claimant failing to plead defective charge in pleadings - Whether it had been necessary for him to plead - Whether it had been an issue of law - Whether it could be raised at any time during the proceedings Remedies - Compensation - How calculated in enforcement proceedings - Complainants failing to adduce documentary proof - Effect of Remedies - Compensation in lieu of reinstatement - In what circumstances could it be awarded NON-COMPLIANCE Collective Agreement - Article on annual increment - When the affected workmen had been entitled to them - Evaluation of the terms of the Collective Agreement - Past practice of the respondent - Effect of - Whether there had been non-compliance by the respondent Collective Agreement - Article on hours of work - Whether the article in the CA had contravened the law - Factors to consider - Effect of - Whether there had been non-compliance by the respondent - Effect of - Whether the complainants had slept on their rights Collective Agreement - Whether the complainants had been covered by the Employment Act 1955 - Factors to consider - Effect of - Whether there had been non-compliance of the law by the respondent - Employment Act 1955, ss. 2(1) para. 2(2) of the First Schedule, Part XII, 58A & 60A(9) TRADE DISPUTE Collective Agreement - Transfer - UW transferred to another department within the club - Less overtime opportunities in the new department - Whether UW had been entitled to overtime as of right - Whether overtime had been within management's prerogative - Factors to consider Collective Agreement - Transfer - UW transferred to another department within the club - UW objecting to the transfer - Whether the transfer had been to his detriment - Factors to consider - Evidence adduced - Evaluation of - Effect of - Powers of the club to transfer - Whether the club had acted mala fide - Factors to consider - Effect of - Industrial Relations Act 1967, ss. 13 & 20(3) Collective Agreement - Transfer - UW transferred to another department within the club - Whether it had been a deterrent to his terms of employment - The effect of his transfer - Whether the transfer had changed his terms of employment - Factors to consider - Effect of Collective Agreement - Transfer - UW transferred to new department and put on probation - Whether he had been a probationer - Perusal of the 4th CA - Effect of - Whether being put on probation had been an insult to him - Past practice of the company - Effect of INDEKS PERKARA MAHKAMAH PERUSAHAAN Prosedur - Tindakan - Perintah Halangan daripada Mahkamah Tinggi - Sama ada ia mengikat prosiding di Mahkamah Perusahaan - Faktor-Faktor yang harus diambil kira - Kesannya - Akta Mahkamah Kehakiman 1964, s. 3 |
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