LATEST CASES (ILR Issue 11 of 2020)

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review – Appeal – Application to quash decision of Minister of Human Resources ('Minister') – National Union of Flight Attendant sought recognition in relation to workers – Secret ballot carried out without involving certain workers – Minister made decision, based on inquiry carried out by Director General of Industrial Relations Department, that certain workers were not employed in any managerial, executive, confidential or security capacity – Whether Minister's decision suffered from infirmities of illegality, irrationality or procedural impropriety – Whether Minister's decision ought to be quashed
Malaysia Airlines Bhd v. Menteri Sumber Manusia, Malaysia & Ors
(Hasnah Mohammed Hashim, Suraya Othman & Azizah Nawawi JJCA) [2020] 4 ILR 193

CONTRACT OF EMPLOYMENT

Terms and conditions – Claimant's Letter of Offer superseded by the Contract for Services – Whether he had been forced to execute the Contract for Services – Whether he had been bound by the four corners of the document – Evidence adduced – Evaluation of – Effect of
Abdul Hayy Seenivasan Narayanan v. 9 Bukit Utama JMB
(Paramalingam J Doraisamy) [2020] 4 ILR 241

Terms and conditions – Notice of termination – Claimant terminated based on the three charges stated in the termination letter, without a show cause letter being issued – Whether the company, by its conduct, had demonstrated good industrial relations practice and complied with the rules of natural justice – Whether it had taken any effort to resolve or settle the dispute(s) – Evidence adduced – Evaluation of – Whether the company, by its conduct, had waived and condoned the misconduct allegedly committed by the claimant – Factors to consider – Evidence adduced – Whether the claimant had been dismissed with just cause and excuse
Cheah Aei Ling v. HKS Infra & Earthwork Sdn Bhd
(Teoh Chin Chong) [2020] 4 ILR 369

Terms and conditions – Notice of termination – No reasons given for the claimant's termination of employment – Whether the claimant's termination had been a termination simpliciter – Evidence adduced – Effect of – What the company should have done instead – Position of termination simpliciter in Malaysian industrial jurisprudence
Abdul Hayy Seenivasan Narayanan v. 9 Bukit Utama JMB
(Paramalingam J Doraisamy) [2020] 4 ILR 241

Terms and conditions – Resignation – Claimant resigning but continuing to work with the company beyond the requested deferment of resignation period, before being terminated by the company by way of a termination letter – Whether the company had terminated her or whether she had resigned – Factors to consider – Evidence adduced – Evaluation of – Effect of – Company's actions towards her – What it had shown – Whether it had waived its right to claim that she had resigned voluntarily from it – Effect of
Cheah Aei Ling v. HKS Infra & Earthwork Sdn Bhd
(Teoh Chin Chong) [2020] 4 ILR 369

Type of – Whether the claimant had been employed under a contract of service or a contract for service – Factors to consider – Evidence adduced – Evaluation of – Effect of
Abdul Hayy Seenivasan Narayanan v. 9 Bukit Utama JMB
(Paramalingam J Doraisamy) [2020] 4 ILR 241

DISMISSAL

Constructive dismissal – Azlan informing third parties that the claimant no longer worked for the company – Whether it had been reasonable for him to have formed such an opinion – Azlan's explanations – Whether could be accepted – Whether his actions had conveyed a dismissal or given rise to a repudiation by the company – Factors to consider – Evidence adduced – Effect of – Whether it had justified the claimant walking out of his employment and claiming constructive dismissal
Mohd Shahrim Mohd Tamrin v. Sun Media Corporation Sdn Bhd
(Syed Noh Said Nazir) [2020] 4 ILR 309

Constructive dismissal – Company removing his article from publication – Whether it had been the editorial prerogative of the company on whether to publish his stories or not – Factors to consider – Evidence adduced – Effect of – Whether the claimant had been constructively dismissed – Whether dismissal without just cause and excuse
Mohd Shahrim Mohd Tamrin v. Sun Media Corporation Sdn Bhd
(Syed Noh Said Nazir) [2020] 4 ILR 309

Constructive dismissal – Lack of assignments – Whether his grievance on this ground had been a live or spent issue – Factors to consider – Evidence adduced – Effect of – Claimant's conduct – What it had shown – Whether it could sustain a claim for constructive dismissal – Company's actions towards him – Whether it had been tolerant – Whether the claimant's prolonged absence from the office, allegedly on medical grounds, had created a disharmonious relationship between the parties – Whether the claimant had been constructively dismissed – Whether dismissal without just cause and excuse
Mohd Shahrim Mohd Tamrin v. Sun Media Corporation Sdn Bhd
(Syed Noh Said Nazir) [2020] 4 ILR 309

Constructive dismissal – Transfer – Claimant transferred without a transfer letter – Issue not pleaded in his pleadings – Effect of – Whether the absence of such a letter had given rise to any prejudice, let alone ground for repudiation – His conduct – What it had shown – Whether it had justified the claimant walking out of his employment and claiming constructive dismissal
Mohd Shahrim Mohd Tamrin v. Sun Media Corporation Sdn Bhd
(Syed Noh Said Nazir) [2020] 4 ILR 309

Retrenchment – Redundancy – Claimant being taken by surprise by the termination due to redundancy – Whether the respondent company had given and/or should have given him advance notice – Factors to consider – Effect of – Whether the respondent company had acted bona fide in carrying out the exercise – Evidence adduced – Evaluation of – Effect of – What it should have done
Jaya Kumar Vadivel v. Associated Pan Malaysia Cement Sendirian Berhad
(Domnic Selvam Gnanapragasam) [2020] 4 ILR 288

Retrenchment – Redundancy – Claimant's department shut down and claimant terminated from employment – Foreign workers in the same department re-deployed to other plants – Effect of – Whether the respondent company's actions had been a good labour practice – Factors to consider – Effect of – Whether the respondent company had acted bona fide in carrying out the exercise – Evidence adduced – Evaluation of – Effect of
Jaya Kumar Vadivel v. Associated Pan Malaysia Cement Sendirian Berhad
(Domnic Selvam Gnanapragasam) [2020] 4 ILR 288

Retrenchment – Redundancy – Whether other workmen had been retrenched – Effect of – Intention of the Industrial Relations Act 1967 – Whether the Court should intervene in the company's exercise of its management's prerogative in this case – Factors to consider – Effect of – Whether the company had failed in its Corporate Social Responsibility ('CSR') to safeguard the interests of its workers – Whether the claimant's dismissal had been carried out without just cause and excuse
Jaya Kumar Vadivel v. Associated Pan Malaysia Cement Sendirian Berhad
(Domnic Selvam Gnanapragasam) [2020] 4 ILR 288

DOMESTIC INQUIRY

Procedural impropriety – Claimant not challenging the process or the outcome at the material time – Effect of – Whether his actions of resurrecting the purported issues concerning the DI here, had been an afterthought
Mohd Shahrim Mohd Tamrin v. Sun Media Corporation Sdn Bhd
(Syed Noh Said Nazir) [2020] 4 ILR 309

EVIDENCE

Documentary evidence – Whether the claimant had been an employee/ workman of the company – Factors to consider – Evidence adduced – Effect of – Degree of control that the company had exercised over him – Effect of – Whether he had been hired by the company under a contract for service or a contract of service – Evaluation of the evidence – Effect of – Industrial Relations Act 1967, s. 2
Abdul Hayy Seenivasan Narayanan v. 9 Bukit Utama JMB
(Paramalingam J Doraisamy) [2020] 4 ILR 241

Witness – Whether the claimant's witnesses could give evidence vide video conferencing – Factors to consider – Evidence adduced – Effect of – Whether it would be prejudicial to the other party – Purpose and intention of the Act – Whether the objections of company's counsel could be addressed properly – Effect of – Industrial Relations Act 1967, s. 29(g)
Mohammad Zamani Ibrahim v. ARH Jurukur Bahan Sdn Bhd
(Teoh Chin Chong) [2020] 4 ILR 234

INDUSTRIAL COURT

Jurisdiction – Whether the Industrial Court had had extra-territorial jurisdiction to hear the matter – Factors to consider – Evidence adduced – Effect of – Contents of the Service Agreement – Intention of the parties – Industrial Relations Act 1967, ss. 29(a) & 29(fa)
Lee Suh Mun v. K Strategic Management Sdn Bhd
(Paramalingam J Doraisamy) [2020] 4 ILR 387

Jurisdiction – Whether the Industrial Court had the threshold jurisdiction to hear the matter – Factors to consider – Evidence adduced – Effect of – Intention of the Commission – Whether the Commission had been a government entity controlled by both the governments of Malaysia and the USA – Evaluation of the evidence – Effect of – Whether the claimant, as its employee, had been excluded from the redress available to an ordinary workman under s. 20(1) of the IRA – Industrial Relations Act 1967, ss. 20(1) & 52(1)
Suseela K S Malakolunthu v. Malaysian-American Commission On Educational Exchange (MACEE)
(Kalmizah Salleh) [2020] 4 ILR 355

Procedure – Action – Company applying to strike out the claimant's claim – Grounds for the same – Whether it ought to be allowed – Factors to consider – Evidence adduced – Effect of – Whether the company had filed its application under the correct provisions of the IRA – Effect of – Whether its application ought to be allowed – Whether the claimant's claim ought to be struck out – Industrial Relations Act 1967, ss. 29(a) & 29(fa)
Lee Suh Mun v. K Strategic Management Sdn Bhd
(Paramalingam J Doraisamy) [2020] 4 ILR 387

INDEKS PERKARA

PEMBUANGAN KERJA

Salah laku – Sama ada YM gagal menjalankan tugasnya sebagai Pengurus Operasi – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Pembelaan YM – Sama ada dapat diterima – Sama ada beliau dapat menjalankan tugasnya tanpa bantuan pekerjanya – Sama ada syarikat responden berjaya membuktikan pertuduhan salah laku terhadap YM – Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab – Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Mohd Arvin Gopalsamay lwn. Sentoria Themeparks And Resort Sdn Bhd
(Kalmizah Salleh) [2020] 4 ILR 264

PERTIKAIAN PERUSAHAAN

Perjanjian Kolektif – Terma dan syarat perkhidmatan – Artikel 35 berkenaan dengan disiplin – Sama ada CSC telah melanggar peruntukan artikel tersebut – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Syarikat responden menghukumnya dengan menurunkan pangkat dan gajinya – Sama ada hukuman yang dijatuhkan oleh syarikat responden tersebut merupakan dua bentuk hukuman bagi salah laku yang sama terhadapnya – Sama ada tuntutan pihak kesatuan harus dibenarkan – Akta Perhubungan Perusahaan 1967, s. 30(5)
Kesatuan Kebangsaan Wartawan Semenanjung Malaysia lwn. Sin Chew Media Corporation Berhad
(Kalmizah Salleh) [2020] 4 ILR 211