LATEST CASES (ILR Issue 5 of 2021)

SUBJECT INDEX

DISMISSAL

Breach of company rules and policies – Company's IT policy – Whether the claimant had been in breach of the company's TGRC policy – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had proven the charge(s) on a balance of probability – Claimant's defence – Whether could be accepted – Whether the claimant's dismissal had been carried out with just cause and excuse
Simon Arputharaj Ernest Victor v. Cargill Palm Products Sdn Bhd
(Kalmizah Salleh) [2021] 2 ILR 222

Breach of company rules and policies – Conflict of interest – Claimant accepting ang paus from the company's contractors – Whether he had put himself in a position of conflict of interest with the company – Factors to consider – Evidence adduced – Effect of – Whether he had been aware of the company's policy on conflict of interest – Claimant's position and seniority in the company – Effect of – Whether the charge had been proven by the company against him – His defence – Whether could be accepted – Whether his actions had constituted serious misconduct – Whether his actions had warranted his dismissal – Factors to consider – Unremorseful claimant – Effect of – Whether his dismissal had been without just cause and excuse
Mohd Pauzie Abdullah v. Tan Chong Ekspres Auto Servis Sdn Bhd
(Ani Ak Solep) [2021] 2 ILR 309

Breach of company rules and policies – Conflict of interest – Claimant expecting rewards from the company's contractors – Whether he had put himself in a position of conflict of interest with the company – Factors to consider – Evidence adduced – Effect of – His explanations and defence – Whether could be accepted – What his actions had shown – Whether the charge had successfully been proven by the company against him – Whether it had warranted his dismissal – Whether dismissal without just cause or excuse
Mohd Pauzie Abdullah v. Tan Chong Ekspres Auto Servis Sdn Bhd
(Ani Ak Solep) [2021] 2 ILR 309

Breach of company rules and policies – Medical certificates – Bank declaring that only MCs from GPH would be accepted by it – Whether supported by the documentary evidence – Effect of – What it should have done instead
Wong Wye Beng v. HSBC Bank Malaysia Berhad
(Zaharuddin Mohammed Isa) [2021] 2 ILR 283

Constructive dismissal – Benefits – Whether the claimant had needed to apply to be put on prolonged illness leave – Factors to consider – Evidence adduced – Effect of – Bank aware of claimant's worsening condition at all material times
Wong Wye Beng v. HSBC Bank Malaysia Berhad
(Zaharuddin Mohammed Isa) [2021] 2 ILR 283

Constructive dismissal – Change in job scope – Claimant claiming the first constructive dismissal and reinstated back to her original position pursuant to a Consent Memorandum – Claimant thereafter walking out claiming second constructive dismissal based on her changed job scope – Whether successfully proven by her – Whether her job functions, scope and objectives had been evolving – Factors to consider – Evidence adduced – Effect of – Claimant transferred many times during her employment with the company – What it had shown – Effect of – What she should have done – Whether her concerns on the job objectives of Legal Manager had been a fundamental breach that had gone to the root of her contract of employment – Whether the claimant had been constructively dismissed
Pusparani P Balasingam v. Westports Malaysia Sdn Bhd
(Augustine Anthony) [2021] 2 ILR 262

Constructive dismissal – Change in job scope – Speed at which she had claimed the second constructive dismissal – What it had shown – What she should have done instead – Whether her actions had amounted to her abandoning her job – Factors to consider – Evidence adduced – Effect of – Whether she had successfully proven that she had been constructively dismissed – Whether dismissal without just cause or excuse
Pusparani P Balasingam v. Westports Malaysia Sdn Bhd
(Augustine Anthony) [2021] 2 ILR 262

Constructive dismissal – Salary – Claimant not paid her salary on the basis that she had exceeded her eligibility for non-hospitalisation sick leave for that year – Whether successfully proven by the bank against her – Perusal and reading of the MOA – What it had shown – Whether the bank had delayed in informing her of its stand – Effect of – Whether its actions had been appropriate – What it should have done instead
Wong Wye Beng v. HSBC Bank Malaysia Berhad
(Zaharuddin Mohammed Isa) [2021] 2 ILR 283

Constructive dismissal – Salary – Claimant's salary not paid for a few months in 2016 – Whether successfully proven by the claimant – Effect of – Bank's reasons for the same – Whether it could be accepted – Factors to consider – Evidence adduced – Effect of – Bank's actions – What it had shown – Whether the bank's actions had amounted to a fundamental breach of her contract of employment – Whether the claimant had been constructively dismissed – Whether dismissal without just cause and excuse – Effect of
Wong Wye Beng v. HSBC Bank Malaysia Berhad
(Zaharuddin Mohammed Isa) [2021] 2 ILR 283

Misconduct – Claimant using non-company devices on his laptop to, amongst other things, view porn – Whether it had constituted serious misconduct – Factors to consider – Evidence adduced – Effect of – Whether there had been any written procedures in place – Whether he had been aware of them – Claimant's defence – Whether could be accepted – Whether the company had succeeded in proving these charges against him – Whether dismissal without just cause or excuse
Simon Arputharaj Ernest Victor v. Cargill Palm Products Sdn Bhd
(Kalmizah Salleh) [2021] 2 ILR 222

Notice of termination – No formal letter of appointment given to the claimant but he carried out the tasks given nevertheless, at his own expense – Claimant dismissed for asking for his unpaid salaries – Effect of – Whether he had been dismissed without just cause and excuse – Company's defence – Whether could be accepted
Jaffet Kristu P Marshall Pereira v. IRDK Land Sendirian Berhad
(Gulam Muhiaddeen Abdul Aziz) [2021] 2 ILR 369

Performance – Poor performer – Company relying on claimant's poor performance to retrench him – Its actions towards him – What it had shown – Whether it had acted correctly – Factors to consider – Evidence adduced – Effect of – What it should have done instead – Whether the company could use the retrenchment process, due to alleged redundancy, in disguise, to remove employees who are allegedly poor performers or non-performers
Yap Chin Wah v. MMSB Consult Sdn Bhd
(Augustine Anthony) [2021] 2 ILR 345

Retrenchment – Redundancy – Claimant terminated based on redundancy – Provisions of his Letter of Appointment – Whether it had been complied with by the company – Factors to consider – Evidence adduced – Effect of – Whether the company had acted in haste in terminating him – Whether a genuine redundancy or surplus of labour had existed in the company – Whether it had justified the claimant's retrenchment – Whether the company, by its actions, had breached the contract of employment entered into between them – Whether dismissal without just cause and excuse
Yap Chin Wah v. MMSB Consult Sdn Bhd
(Augustine Anthony) [2021] 2 ILR 345

Retrenchment – Reorganisation – Claimant retrenched based on redundancy – Whether the company had been facing financial constraints – Factors to consider – Evidence adduced – Effect of – Actions of the company – Whether it had displayed unfair labour practices – Effect of – Whether dismissal without just cause or excuse
Yap Chin Wah v. MMSB Consult Sdn Bhd
(Augustine Anthony) [2021] 2 ILR 345

DOMESTIC INQUIRY

Procedural impropriety – Whether the DI had been a sham, been irregularly conducted and been invalid – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant's conduct – What it had shown
Simon Arputharaj Ernest Victor v. Cargill Palm Products Sdn Bhd
(Kalmizah Salleh) [2021] 2 ILR 222

EVIDENCE

Adverse inference – Company failing to call TSR and failing to give reasons for the same – Whether he had been a material witness – Factors to consider – Evidence adduced – Effect of – Whether an adverse inference ought to be drawn against the company for its failure to call him – Evidence Act 1950, s. 114(g)
Jaffet Kristu P Marshall Pereira v. IRDK Land Sendirian Berhad
(Gulam Muhiaddeen Abdul Aziz) [2021] 2 ILR 369

INDUSTRIAL COURT

Jurisdiction – Whether the Industrial Court had the threshold jurisdiction to hear the matter – Factors to consider – Evidence adduced – Effect of – Whether the respondent company had been a statutory authority under the Industrial Relations Act 1967 – Evaluation of the evidence – Effect of – Industrial Relations Act 1967, ss. 2, 20(1), 29(fa), 29(g) & 52(1)
Morni Bujang v. Pembangunan Sumber Manusia Berhad
(Rajeswari Karupiah) [2021] 2 ILR 252

Procedure – Parties – Whether the claimant had sued the right party – Factors to consider – Evidence adduced – Evaluation of – Effect of – TSR the Managing Director and owner of the IRDK Group and having ultimate authority over the employees – Whether the company and the other entities within the group, including IRDK Hotel Management Sdn. Bhd., from a legal point of view, had been one and the same – Effect of – Whether it had been appropriate to apply the doctrine of separate legal entity in this case – Effect of – Whether the claimant's claim ought to be dismissed on this ground alone
Jaffet Kristu P Marshall Pereira v. IRDK Land Sendirian Berhad
(Gulam Muhiaddeen Abdul Aziz) [2021] 2 ILR 369

Remedies – Compensation – Backwages – Claimant on a genuine fixed-term contract – Computation of compensation
Yap Chin Wah v. MMSB Consult Sdn Bhd
(Augustine Anthony) [2021] 2 ILR 345

Remedies – Compensation – Backwages – Claimant serving the company for 1 month and 10 days – What would be a suitable amount to award
Jaffet Kristu P Marshall Pereira v. IRDK Land Sendirian Berhad
(Gulam Muhiaddeen Abdul Aziz) [2021] 2 ILR 369

Remedies – Reinstatement – Claimant already 60 years of age – Whether appropriate to award – Effect of
Wong Wye Beng v. HSBC Bank Malaysia Berhad
(Zaharuddin Mohammed Isa) [2021] 2 ILR 283

LABOUR LAW

Wages – Minimum wage – Service charge – Whether entrenched as part of workman's contract of service – Whether could be unilaterally removed or varied without employees' consent – Whether nature of service charge one of monies held on trust by Hotel for its employees – Whether service charge could comprise part of 'basic wages' under National Wages Consultative Council Act 2011 and Minimum Wages Order(s) 2012 to 2020 – Whether hotelier entitled to utilise employees' service charge to satisfy statutory obligation to pay minimum wage – Whether service charge could be incorporated into clean wage or utilised to top up minimum wage
Crystal Crown Hotel & Resort Sdn Bhd (Crystal Crown Hotel Petaling Jaya) v. Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar & Restoran Semenanjung Malaysia
(Nallini Pathmanathan, Abdul Rahman Sebli & Mary Lim FCJJ) [2021] 2 ILR 177

STATUTORY INTERPRETATION

Construction of statutes – Purpose of – National Wages Consultative Council Act 2011 ('NWCCA') and Minimum Wages Order(s) 2012 to 2020 ('MWO') – Whether serves as social legislations implemented to achieve higher equality in income distribution – Whether ss. 26(2) and 30(4) of Industrial Relations Act 1967 could be utilised to alter, modify or vary statutory effect and consequences of NWCCA and MWO – Whether IRA, NWCCA and MWO should be construed harmoniously
Crystal Crown Hotel & Resort Sdn Bhd (Crystal Crown Hotel Petaling Jaya) v. Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar & Restoran Semenanjung Malaysia
(Nallini Pathmanathan, Abdul Rahman Sebli & Mary Lim FCJJ) [2021] 2 ILR 177

INDEKS PERKARA

PEMBUANGAN KERJA

Ketidakpatuhan terhadap peraturan dan polisi syarikat – Kesalahan seksual – YM dituduh dengan kesalahan 'khalwat' – Sama ada berjaya dibuktikan oleh syarikat terhadapnya – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Setakat hari perbicaraan, YM tidak didakwa atas kesalahan tersebut di mahkamah – Kesannya – Sama ada syarikat telah bertindak secara tergesa-gesa terhadapnya – Penilaian keterangan – Kesannya – Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab – Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Mohamad Noor Jaamad lwn. Puspakom Sdn Bhd
(Teoh Chin Chong) [2021] 2 ILR 332