LATEST CASES (ILR Issue 12 of 2020)

SUBJECT INDEX

CONTRACT OF EMPLOYMENT

Terms and conditions – Resignation – Whether the claimant had been forced to resign by signing the Agreement – Factors to consider – Evidence adduced – Effect of – Claimant's and company's actions – What it had shown – Whether he had resigned voluntarily
Thanasegaran C Munusamy v. Vale Malaysia Minerals Sdn Bhd
(Paramalingam J Doraisamy) [2020] 4 ILR 599

DISMISSAL

Breach of company rules and policies – Duty of care – Whether the claimant had been in breach of his duty of care to the Company – Factors to consider – Evidence adduced – Effect of – Whether he had failed to discharge his duties to the Company satisfactorily – Position held by the claimant in the Company – Claimant's defence – Whether acceptable – the Company's actions towards him – Whether it had been reasonable – Whether the Company had been justified in dismissing him – Whether dismissal without just cause or excuse
Ong Ho Hoo v. Sunway Resort Hotel Sdn Bhd & Anor
(Noor Ruwena Mohd Nurdin) [2020] 4 ILR 493

Breach of company rules and policies – Fiduciary duties – Whether the claimant had been in breach of his fiduciary duties to the Company – Factors to consider – Evidence adduced – Effect of – Whether he had failed to discharge his duties to the Company satisfactorily – Position held by the claimant in the Company – Claimant's defence – Whether acceptable – the Company's actions towards him – Whether it had been reasonable – Whether the Company had been justified in dismissing him – Whether dismissal without just cause or excuse
Ong Ho Hoo v. Sunway Resort Hotel Sdn Bhd & Anor
(Noor Ruwena Mohd Nurdin) [2020] 4 ILR 493

Breach of company rules and policies – Negligence – Whether the claimant had been negligent in approving and signing the Payment Certificates – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether his actions had constituted grave misconduct thus justifying his dismissal – Whether the company had been reasonable in dismissing him – Whether dismissal had been too harsh under the circumstances – Claimant's length of service and his disciplinary record with the company – Company's actions towards the rest of the employees involved – What it had shown – Whether dismissal without just cause and excuse
Thomas Ngu Toh Kai v. PPES Works (Sarawak) Sdn Bhd
(Ani Ak Solep) [2020] 4 ILR 425

Breach of company rules and policies – Whether the claimant had been in breach of the Company's QSSs – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – Reasons why the QSSs had been put in place – Claimant's position in the company – Effect of – Whether he had, by his actions, been guilty of misconduct – Whether it had justified his dismissal – Whether dismissal without just cause and excuse
Ong Ho Hoo v. Sunway Resort Hotel Sdn Bhd & Anor
(Noor Ruwena Mohd Nurdin) [2020] 4 ILR 493

Constructive dismissal – Benefits – Company car and claimant's credit card benefits – Discontinuance of – Whether it had amounted to a fundamental breach of his contract of employment – Factors to consider – Evidence adduced – Effect of – Whether he had been contractually entitled to it or it had been a special privilege bestowed by the company – Effect of – Whether his claim for constructive dismissal ought to be allowed
Abdul Halim Zainal Abidin v. Olio Resources Sdn Bhd
(Paramalingam J Doraisamy) [2020] 4 ILR 470

Constructive dismissal – Benefits – Golf club membership – Discontinuance of – Whether it had amounted to a fundamental breach of his contract of employment – Factors to consider – Evidence adduced – Effect of – Whether he had been contractually entitled to it or it had been a special privilege bestowed by the company – Effect of – What the claimant's actions of selling the membership and keeping the proceeds for himself had shown – Whether he had come to court with clean hands – Whether his claim for constructive dismissal ought to be allowed
Abdul Halim Zainal Abidin v. Olio Resources Sdn Bhd
(Paramalingam J Doraisamy) [2020] 4 ILR 470

Constructive dismissal – Benefits – Whether the claimant had been contractually entitled to a secretary, let alone one that reported exclusively to him – Factors to consider – Evidence adduced – Effect of – Removal of – Whether it had constituted a fundamental breach of his contract of employment
Abdul Halim Zainal Abidin v. Olio Resources Sdn Bhd
(Paramalingam J Doraisamy) [2020] 4 ILR 470

Constructive dismissal – Change in job function – Whether his roles being assigned to his former subordinate had constituted a demotion for him – Factors to consider – Evidence adduced – Effect of – Claimant's actions and attitude – What it had shown – Claimant's salary and terms and conditions of employment remaining unchanged – Effect of
Abdul Halim Zainal Abidin v. Olio Resources Sdn Bhd
(Paramalingam J Doraisamy) [2020] 4 ILR 470

Constructive dismissal – Demotion – Claimant re-designated from his position – Whether his re-designation had amounted to a demotion – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company's actions towards him had been reasonable – Whether it had justified him walking out of his employment and claiming constructive dismissal
Abdul Halim Zainal Abidin v. Olio Resources Sdn Bhd
(Paramalingam J Doraisamy) [2020] 4 ILR 470

Constructive dismissal – Status – Change in reporting structure – Whether the company's organisation chart had formed a term of the claimant's employment contract – Factors to consider – Evidence adduced – Effect of – Whether there had been any malice in the company's actions – Whether a change in his reporting structure had constituted a fundamental breach of his contract of employment – Whether his claim for constructive dismissal ought to be allowed
Abdul Halim Zainal Abidin v. Olio Resources Sdn Bhd
(Paramalingam J Doraisamy) [2020] 4 ILR 470

Constructive dismissal – Status – Unilateral removal of the claimant's reporting subordinates – Whether he had had any contractual entitlement to subordinate staff – Factors to consider – Evidence adduced – Effect of – What his access to personnel in both the Business Development and Sales & Marketing sections had meant – Whether it had constituted a fundamental breach of his contract of employment – Whether his claim for constructive dismissal ought to be allowed
Abdul Halim Zainal Abidin v. Olio Resources Sdn Bhd
(Paramalingam J Doraisamy) [2020] 4 ILR 470

Constructive dismissal – Transfer – Claimant transferred – Reasons for the same – Whether the company had been justified in its actions towards her – Factors to consider – Evidence adduced – Effect of – Whether its actions had been a fundamental breach that had gone to the root of her contract of employment – Whether the transfer had been carried out bona fide – Whether the claimant had been constructively dismissed – Whether dismissal without just cause and excuse
Yang Mee Eng v. Malaysia Digital Economy Corporation Sdn Bhd
(Nor Afizah Hanum Mokhtar) [2020] 4 ILR 585

Constructive dismissal – Transfer – Claimant transferred – Whether she had delayed in claiming constructive dismissal – Factors to consider – Evidence adduced – Effect of – Whether she had given reasonable explanation for her delay – Whether her claim ought to be allowed
Yang Mee Eng v. Malaysia Digital Economy Corporation Sdn Bhd
(Nor Afizah Hanum Mokhtar) [2020] 4 ILR 585

Misconduct – Claimant approving Payment Certificates despite knowing that works not completed in accordance with the sub-contract – Whether the misconduct had been proven against him – Factors to consider – Evidence adduced – Effect of – Whether it had justified his dismissal
Thomas Ngu Toh Kai v. PPES Works (Sarawak) Sdn Bhd
(Ani Ak Solep) [2020] 4 ILR 425

Misconduct – Claimant taking leave without permission and going overseas during his period of suspension – Contents of his suspension letter – Whether his actions had constituted a misconduct – His explanations – Whether acceptable – His position in the Company – What he should have done instead
Ong Ho Hoo v. Sunway Resort Hotel Sdn Bhd & Anor
(Noor Ruwena Mohd Nurdin) [2020] 4 ILR 493

Notice of termination – Forced resignation – Whether the claimant had been forced to sign the Agreement – Factors to consider – Evidence adduced – Effect of – Claimant signing the Agreement on a "without prejudice" basis – Effect of – Whether it had been evidence of a forced signing – Company's actions towards him – What it had indicated – Whether he had been dismissed by the company – Whether dismissal without just cause and excuse
Thanasegaran C Munusamy v. Vale Malaysia Minerals Sdn Bhd
(Paramalingam J Doraisamy) [2020] 4 ILR 599

DOMESTIC INQUIRY

Procedural impropriety – Whether the DI had been conducted fairly – Factors to consider – Evidence adduced – Effect of – Whether the claimant had been denied access to documents in order to prepare his response and/ or defence to the show cause letter – What he should have done – Claimant relying on notes of DI at hearing – What that had shown
Ong Ho Hoo v. Sunway Resort Hotel Sdn Bhd & Anor
(Noor Ruwena Mohd Nurdin) [2020] 4 ILR 493

INDUSTRIAL COURT

Remedies – Compensation – Fixed monthly transport allowance, fixed Minimum Shift Allowance and fixed Holiday Allowance – Whether it ought to be allowed in the calculation of backwages – Factors to consider – Evidence adduced – Effect of – Whether claims for allowance for work-related purposes had been a non-issue
Thanasegaran C Munusamy v. Vale Malaysia Minerals Sdn Bhd
(Paramalingam J Doraisamy) [2020] 4 ILR 599

Remedies – Punishment – Proportionality of – Claimant guilty of misconduct – Whether the punishment of dismissal meted out by the company on him had been too harsh – Factors to consider – Evidence adduced – Effect of
Thomas Ngu Toh Kai v. PPES Works (Sarawak) Sdn Bhd
(Ani Ak Solep) [2020] 4 ILR 425

Remedies – Punishment – Proportionality of punishment – The Company not suffering any harm or losses due to the claimant's misconduct – Effect of – Whether dismissal had been too harsh under the circumstances – Factors to consider – Effect of
Ong Ho Hoo v. Sunway Resort Hotel Sdn Bhd & Anor
(Noor Ruwena Mohd Nurdin) [2020] 4 ILR 493

NON-COMPLIANCE

Collective Agreement – Consent Award entered into between the parties – Whether the respondent company had complied with the clauses in the Consent Award, namely the car washing allowance and the safe driving allowance – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the union's claim ought to be allowed – Industrial Relations Act 1967, s. 56(1)
Kesatuan Pekerja-Pekerja Plusliner Sdn Bhd v. Plusliner Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2020] 4 ILR 399

TRADE DISPUTE

Collective Agreement – Terms and conditions of service – Article on overtime payment for work done on rest days and public holidays – Company unilaterally changing the benefits under the two articles of the CA by way of its Circular – Whether the company’s actions had contravened the articles in the CA – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, ss. 17 & 30(5)
National Union Of Transport Equipment And Allied Industries Workers v. PEPS-JV (Melaka) Sdn Bhd
(Anna Ng Fui Choo) [2020] 4 ILR 411