LATEST CASES (ILR Issue 3 of 2021)

SUBJECT INDEX

ADMINISTRATIVE LAW

Public officer – Dismissal – Judicial review – Appeal against decision of Court of Appeal and High Court – Police officer dismissed from service following insult of Inspector General of Police contained in police report – Whether defence of absolute privilege applies to disciplinary proceedings under Public Officers (Conduct and Discipline) Regulations 1993 – Whether defence of absolute privilege extends to protect statement contained in police report based on public policy consideration – Whether disciplinary action could be based on police report against maker who lodged police report
Nor Aziz Mat Isa v. Sun Teoh Tia (SAC) & Ors
(Mohd Zawawi Salleh, Hasnah Mohammed Hashim, Harmindar Singh Dhaliwal FCJJ) [2021] 1 ILR 481

DISMISSAL

Breach of company rules and policies – Bribery – Whether the claimant had accepted a bribe for the transaction involving the 25 RORO bins to USE NESS Enterprise – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had successfully proven the charge against him – Whether it had amounted to gross misconduct justifying his dismissal – Whether dismissal without just cause or excuse
Abdul Mutalib Mohamad v. SWM Greentech Sdn Bhd
(Sumathi Murugiah) [2021] 1 ILR 493

Breach of company rules and policies – Dishonesty – Whether the claimant had handed the said sum to COW2 for the disposal of the company's 25 RORO bins to USE NESS Enterprise – Factors to consider – Evidence adduced – Effect of – Claimant's defence – Whether acceptable – Whether the company had succeeded in proving the misconduct against him – Whether it had amounted to gross misconduct justifying his dismissal – Whether dismissal without just cause or excuse
Abdul Mutalib Mohamad v. SWM Greentech Sdn Bhd
(Sumathi Murugiah) [2021] 1 ILR 493

Breach of company rules and policies – Theft – Whether the claimant had been responsible for the cash shortages and/or cash missing from the ATM machines under his charge – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the charge had been proven by the company against him – Whether the company had acted mala fide towards him – Whether it had been justified in dismissing him – Whether dismissal without just cause and excuse
Wan Adhwa Aizat Wan Musa v. Safeguards G4S Sdn Bhd
(Andersen Ong Wai Leong) [2021] 1 ILR 527

Breach of company rules and policies – Claimant posting comments on his Facebook page in his freetime and using his own internet facility – Whether the claimant had posted comments on his Facebook page, in breach of the Company's Policy and Code – Factors to consider – Evidence adduced – Effect of – Whether his comments had used derogatory words in relation to the company's management and those holding management positions – Effect of – Whether his actions had compromised the reputation and integrity of the company – Whether the relationship of mutual trust and confidence that had been placed in him as an employee had been broken by him – Whether the allegation had successfully been proven by the company against him – Claimant's defence – Whether acceptable – Whether dismissal with just cause and excuse
Mohd Hafizul Abdul Rahim v. Malaysia Airlines Berhad
(Sumathi Murugiah) [2021] 1 ILR 579

Constructive dismissal – Demotion – Claimant demoted, suffering a reduction in salary and transferred after being found guilty of the charge at the DI – Whether he had suffered triple punishment for the same wrong – Whether the company, by its actions, had breached fundamental terms of his contract of employment – Whether it had justified him walking out of his employment and claiming constructive dismissal
Wan Adhwa Aizat Wan Musa v. Safeguards G4S Sdn Bhd
(Andersen Ong Wai Leong) [2021] 1 ILR 527

Insubordination – Whether the claimant had been disrespectful and had made various untrue and damaging remarks when speaking of one of the company's Directors to an outsider and to the staff of the company – Factors to consider – Evidence adduced – Evaluation of – Effect of – Position held by the claimant in the company – Whether her conduct had justified her dismissal
Jeana Yeo See Nah v. Virgoz Oils & Fats Sdn Bhd
(Noor Hayati Mat) [2021] 1 ILR 516

Misconduct – Breach of company rules and policies – Confidential information – Whether the claimant had divulged confidential information relating to the company's business affairs to an outsider – Factors to consider – Evidence adduced – Effect of – Claimant's designation in the company – Whether her actions had constituted serious misconduct – Whether she had been in breach of her fiduciary duties to the company – Whether her actions had warranted her dismissal – Factors to consider – Whether her dismissal had been without just cause and excuse
Jeana Yeo See Nah v. Virgoz Oils & Fats Sdn Bhd
(Noor Hayati Mat) [2021] 1 ILR 516

Misconduct – Claimant referring to the company's management as “lembu” on his FB page – Whether it had been an insult to it – Factors to consider – Evidence adduced – Effect of – Whether it had constituted major misconduct – Whether the misconduct had been proven by the company against him – Claimant's defence – Whether could be accepted – Whether the company had acted reasonably in dismissing him – Whether dismissal with just cause and excuse
Mohd Hafizul Abdul Rahim v. Malaysia Airlines Berhad
(Sumathi Murugiah) [2021] 1 ILR 579

Misconduct – Whether the claimant had breached or hacked into the company's Guest Wi-Fi system to gain unauthorised internet access for himself and other staff – Factors to consider – Evidence adduced – Effect of – Whether it had constituted serious misconduct – Whether the misconduct had been proven by the company against him – Claimant's defence – Whether could be accepted – Whether his actions had justified his dismissal – Whether dismissal with just cause and excuse
Mohd Noresham Mohamad Esa v. First Engineering Plastics (M) Sdn Bhd
(Sumathi Murugiah) [2021] 1 ILR 568

Misconduct – Whether the claimant had misused the company's manpower for his personal benefit – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the charges had been proven by the company successfully against him – Whether it had justified his dismissal
Abdul Mutalib Mohamad v. SWM Greentech Sdn Bhd
(Sumathi Murugiah) [2021] 1 ILR 493

Notice of termination – Summary dismissal – In what circumstances would it be allowed
Jeana Yeo See Nah v. Virgoz Oils & Fats Sdn Bhd
(Noor Hayati Mat) [2021] 1 ILR 516

Notice of termination – Whether the claimant had been forced to resign – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether dismissal without just cause and excuse
Wong Chew Mei v. Maxxima Resources (M) Sdn Bhd
(Andersen Ong Wai Leong) [2021] 1 ILR 592

Performance – Poor performance – Claimant allegedly performing poorly and put on PPIs – Whether the PPIs had been fairly conducted against him – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether his performance ratings had been fairly arrived at – Evaluation of the evidence – Effect of – Whether the company had sufficiently assisted and encouraged him to reach his KPIs – Effect of – What the duty of Performance Managers had entailed – Whether that duty had been discharged by the company – What the company's actions towards him had shown – Whether the company had treated him fairly – Whether the claimant had been victimised – Whether poor performance had been established against him – Whether it had justified his dismissal – Whether dismissal without just cause and excuse
Thomas Kuruvilla v. Malaysia Digital Economy Corporation Sdn Bhd
(Augustine Anthony) [2021] 1 ILR 539

Performance – Poor performance – Claimant put on a Performance Improvement Plan (‘PIP') – Whether he had been a poor performer – Factors to consider – Evidence adduced – Effect of – Whether the PIP had been conducted fairly – What the actions of the company had shown – Whether the company had acted bona fide in carrying out the exercise – Evidence adduced – Evaluation of – Effect of
Charles Selvam Andrew Francis v. Kebabangan Petroleum Operating Company Sdn Bhd
(Rajeswari Karupiah) [2021] 1 ILR 601

Performance – Poor performance – Whether the claimant had been a poor performer – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether poor performance successfully proven by the company against him – Claimant's defence – Whether could be accepted – Company's actions towards him – What it had shown – Reasons why he had been employed by the company in the first place – Whether dismissal without just cause and excuse
Thomas Kuruvilla v. Malaysia Digital Economy Corporation Sdn Bhd
(Augustine Anthony) [2021] 1 ILR 539

Performance – Poor performance – Whether the claimant had been a poor performer – Whether the company, by its actions, had caused his performance to deteriorate – Factors to consider – Evidence adduced – Evaluation of – Effect of
Thomas Kuruvilla v. Malaysia Digital Economy Corporation Sdn Bhd
(Augustine Anthony) [2021] 1 ILR 539

Retrenchment – Redundancy – Whether the claimant's position had become redundant – Factors to consider – Evidence adduced – Effect of – Whether the company had acted bona fide towards him – Company's actions – What it had shown – Effect of – Whether the claimant had been treated fairly
Charles Selvam Andrew Francis v. Kebabangan Petroleum Operating Company Sdn Bhd
(Rajeswari Karupiah) [2021] 1 ILR 601

Retrenchment – Redundancy – Whether the claimant's position had been surplus to the company's needs – Factors to consider – Evidence adduced – Effect of – Whether the company had successfully proven that he had been unsuited for the enhanced role of Lead, Project – Effect of – Whether his dismissal had been carried out without just cause and excuse
Charles Selvam Andrew Francis v. Kebabangan Petroleum Operating Company Sdn Bhd
(Rajeswari Karupiah) [2021] 1 ILR 601

Retrenchment – Whether the claimant had been retrenched – Factors to consider – Evidence adduced – Evaluation of the evidence – Effect of – Claimant's actions – Whether she had, in fact, abandoned her employment
Wong Chew Mei v. Maxxima Resources (M) Sdn Bhd
(Andersen Ong Wai Leong) [2021] 1 ILR 592

DOMESTIC INQUIRY

Procedural impropriety – DI panel composition – One of the panel members lower in rank to the claimant – Claimant not objecting to it either prior to, at the commencement of or during the DI – Effect of – Whether it had neutralised or affected the impartiality of the DI panel members as a whole
Abdul Mutalib Mohamad v. SWM Greentech Sdn Bhd
(Sumathi Murugiah) [2021] 1 ILR 493

EVIDENCE

Burden of proof – Two directly conflicting version of events from the company and the claimant – Which version had been more believable – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the claimant had discharged her burden of proof to show that she had been dismissed by the company
Wong Chew Mei v. Maxxima Resources (M) Sdn Bhd
(Andersen Ong Wai Leong) [2021] 1 ILR 592

Documentary evidence – Minutes of the DI – Whether it had been accurate and reliable – Factors to consider – Evidence adduced – Effect of – Whether the principles of natural justice had been complied with in the conduct of the DI
Abdul Mutalib Mohamad v. SWM Greentech Sdn Bhd
(Sumathi Murugiah) [2021] 1 ILR 493