LATEST CASES (ILR Issue 6 of 2021)

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review – Certiorari – Quashing award handed down by Industrial Court – Appeal against – Dismissal of employee – Whether with just cause and excuse – Domestic inquiry panel found employee not guilty of certain charges – Whether Industrial Court correct in considering findings made by domestic inquiry panel – Whether there was flaw or manifest error in approach taken by Industrial Court – Whether Industrial Court committed error of law in award warranting interference on judicial review – Whether High Court fell into error by exceeding jurisdiction in judicial review proceeding by overturning findings of Industrial Court – Whether award of Industrial Court ought to be reinstated
Lini Feinita Muhammad Feisol v. Indah Water Konsortium Sdn Bhd
(Lau Bee Lan, Hadhariah Syed Ismail & Gunalan Muniandy JJCA) [2021] 2 ILR 385

CONTRACT OF EMPLOYMENT

Terms and conditions – Resignation – Whether the claimant had been forced to resign – Events leading up to him tendering his resignation – Whose version had been more believable – Factors to consider – Evidence adduced – Effect of – Company not following its own disciplinary process before dismissing him – What it had shown – Whether the claimant's claim that he had been forced to resign had been successfully proven by him
Shafrul Din Sahul Hameed v. Bangi Resort Hotel Sdn Bhd
(Augustine Anthony) [2021] 2 ILR 533

DISMISSAL

Absenteeism – Claimant's salary deducted for being absent without leave and his employment subsequently terminated – Whether it had amounted to double punishment – Factors to consider – Evidence adduced – Effect of
Sham Azizul Zulkifli v. Central Sugars Refinery Sdn Bhd
(Teoh Chin Chong) [2021] 2 ILR 486

Absenteeism – Whether the claimant had been absent without leave for 26 days between January and November 2019 – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant's defence and explanations – Whether could be accepted – Whether his actions had constituted misconduct warranting his dismissal – Factors to consider – Whether the company had condoned his absence without leave – The actions it had taken – Effect of – Whether his dismissal had been without just cause and excuse
Sham Azizul Zulkifli v. Central Sugars Refinery Sdn Bhd
(Teoh Chin Chong) [2021] 2 ILR 486

Absenteeism – Whether the claimant had been absent without leave for 43 days between May and August 2019 – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant's defence and explanations – Whether could be accepted – Whether his actions had constituted misconduct warranting his dismissal – Factors to consider – Whether it had been his duty and responsibility to inform the bank that he had been on medical leave – Effect of – Whether his dismissal had been without just cause and excuse
Chandramogan M Beeman v. Affin Bank Berhad
(Teoh Chin Chong) [2021] 2 ILR 459

Breach of company rules and policies – Claimant leaving the company's WhatsApp group, twice, without approval – Whether he had been in breach of either his Letter of Offer or the company's standard operating procedures, memos, guidelines or policies – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had proven the charge on a balance of probability – Claimant's defence – Whether could be accepted – Whether it had justified his termination – Whether the claimant's dismissal had been carried out with just cause and excuse
Ahmad Ritzialli Ahmad Rosli v. Casasl Gourmet Sdn Bhd
(Paramalingam J Doraisamy) [2021] 2 ILR 498

Breach of company rules and policies – Dishonesty – Company alleging that the claimant had been dishonest – Whether successfully proven by the company against him – Evidence adduced – Evaluation of – Effect of – Claimant serving the company for over 20 years with only one other instance of infraction which he had admitted to – What that had shown – Whether the company had behaved reasonably towards him – What it should have done instead
Shafrul Din Sahul Hameed v. Bangi Resort Hotel Sdn Bhd
(Augustine Anthony) [2021] 2 ILR 533

Breach of company rules and policies – Whether the claimant had been in breach of the company's mobile phone policy during working hours – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had proven the charge on a balance of probability – Claimant's defence – Whether could be accepted – Whether it had justified his termination – Whether the claimant's dismissal had been carried out with just cause and excuse
Ahmad Ritzialli Ahmad Rosli v. Casasl Gourmet Sdn Bhd
(Paramalingam J Doraisamy) [2021] 2 ILR 498

Insubordination – Claimant holding the position of General Manager in the company – Whether her actions of questioning the prerogative or certain eligibility of the Directors and shareholders of the company had constituted insubordinate behaviour – Factors to consider – Evidence adduced – Effect of – Whether proven by the company against her – Whether it had justified her dismissal – Effect of
Chang Lee Ming v. Novel Link (Malaysia) Sdn Bhd
(Noor Hayati Mat) [2021] 2 ILR 436

Insubordination – Whether an employee who manifestly displays his or her disagreement vocally as an act of disrespect to a manager or owner of a business, which could include certain gestures or who directly questions or mocks management decisions could be guilty of insubordination – Factors to consider – Evidence adduced – Effect of – Whether proven by the company against her – Whether it had justified her dismissal – Effect of – Whether she had been harassed or bullied by the company – What the evidence had shown – Claimant lodging a police report against the company – Effect of
Chang Lee Ming v. Novel Link (Malaysia) Sdn Bhd
(Noor Hayati Mat) [2021] 2 ILR 436

Misconduct – Claimant allegedly not following the company's SOP in relation to the preparation or production of the Combi Fried Bee Hoon – Whether successfully proven by the company against him – Factors to consider – Evidence adduced – Effect of – Whether the company had engaged in arbitrary and unfair labour practices against the claimant – Whether he had been victimised – Whether his dismissal had been carried out without just cause and excuse
Shafrul Din Sahul Hameed v. Bangi Resort Hotel Sdn Bhd
(Augustine Anthony) [2021] 2 ILR 533

Misconduct – Claimant querying certain eligibility of the Directors and shareholders and alleging harassment and bullying by the company against her in a police report – Whether proven by the evidence – Evaluation of the evidence – Effect of – Whether it had constituted misconduct – Whether the company had acted reasonably in dismissing her – Whether dismissal with just cause and excuse
Chang Lee Ming v. Novel Link (Malaysia) Sdn Bhd
(Noor Hayati Mat) [2021] 2 ILR 436

Misconduct – Past misconduct of the claimant in taking a sandwich from the hotel, to break his fast, whilst on the way to meet his father who had been admitted into IJN – Claimant admitting to it and showing genuine remorse – Company's actions towards him thereafter – Whether he had been subjected to a rigorous and humiliating in-house disciplinary process, despite his admission – Effect of – How the company should have behaved instead
Shafrul Din Sahul Hameed v. Bangi Resort Hotel Sdn Bhd
(Augustine Anthony) [2021] 2 ILR 533

Misconduct – Whether the claimant had been rude and disrespectful when dealing with the staff – Factors to consider – Evidence adduced – Effect of – Position he had held in the Restaurant – What the evidence had shown – Whether the company had succeeded in proving the charge against him – Whether it had justified his dismissal
Ahmad Ritzialli Ahmad Rosli v. Casasl Gourmet Sdn Bhd
(Paramalingam J Doraisamy) [2021] 2 ILR 498

Misconduct – Whether the claimant had attended a job interview, during his working hours, without the company's approval – Factors to consider – Evidence adduced – Effect of – Whether he had been on duty at the material time – Whether the company had succeeded in proving the charge against him – Whether it had justified his dismissal
Ahmad Ritzialli Ahmad Rosli v. Casasl Gourmet Sdn Bhd
(Paramalingam J Doraisamy) [2021] 2 ILR 498

Misconduct – Whether the claimant had been absent without leave from the company – Whether it had amounted to misconduct justifying his dismissal – Factors to consider – Evidence adduced – Effect of – Whether dismissal without just cause or excuse
Sham Azizul Zulkifli v. Central Sugars Refinery Sdn Bhd
(Teoh Chin Chong) [2021] 2 ILR 486

Notice of termination – Resignation letter – Claimant attempting to retract his resignation letter a day after tendering it but not successful – Reasons for the same – Company failing to counter what he had stated in the said letter – Effect of – Whether it had supported his case that he had been forced to resign – Whether he had, in fact, been dismissed – Factors to consider – Evidence adduced – Effect of – Whether dismissal without just cause and excuse
Shafrul Din Sahul Hameed v. Bangi Resort Hotel Sdn Bhd
(Augustine Anthony) [2021] 2 ILR 533

Performance – Poor performance – Whether the claimant had delivered sub-standard food to a very important client which had caused the company to lose a big contract – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had successfully proven the charge against him – Whether it had justified his dismissal
Ahmad Ritzialli Ahmad Rosli v. Casasl Gourmet Sdn Bhd
(Paramalingam J Doraisamy) [2021] 2 ILR 498

Performance – Poor performance – Whether the claimant had improperly planned the staff schedule on the material date – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the planning of staff schedule had been a part of his job scope – Effect of – Whether the company had successfully proven the charge against him – Whether it had justified his dismissal
Ahmad Ritzialli Ahmad Rosli v. Casasl Gourmet Sdn Bhd
(Paramalingam J Doraisamy) [2021] 2 ILR 498

Performance – Poor performance – Whether the claimant had performed poorly in her daily tasks – Factors to consider – Evidence adduced – Effect of – Whether proven by the company against her – Whether she had been given sufficient opportunity to improve – Claimant holding the position of General Manager – Whether she had been expected and hired to work independently and with minimal supervision – Whether the company had displayed any mala fide intention in dismissing her – Effect of – Whether dismissal without just cause and excuse
Chang Lee Ming v. Novel Link (Malaysia) Sdn Bhd
(Noor Hayati Mat) [2021] 2 ILR 436

Probationer – Claimant terminated based on six grounds consisting of poor performance, being in breach of the company's policies and misconduct – Whether successfully proven by the company against him – No warning or show cause letters issued to him on his alleged misbehaviour – Effect of
Ahmad Ritzialli Ahmad Rosli v. Casasl Gourmet Sdn Bhd
(Paramalingam J Doraisamy) [2021] 2 ILR 498

INDUSTRIAL COURT

Jurisdiction – Claimant seconded to the company as CEO from MOE – Effect of the secondment – Whether he had remained an employee of the government despite the secondment – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the Industrial Court had jurisdiction to hear the matter – Whether the matter ought to be struck off – Industrial Relations Act 1967, s. 52(1)
Mazalan Kamis v. Institut Darul Ridzuan Berhad
(Kalmizah Salleh) [2021] 2 ILR 407

Remedies – Compensation – Backwages – Determination of amount to award the probationer claimant – Factors to consider – Evidence adduced – Effect of – Whether a deduction for contributory misconduct ought to be made
Ahmad Ritzialli Ahmad Rosli v. Casasl Gourmet Sdn Bhd
(Paramalingam J Doraisamy) [2021] 2 ILR 498

LABOUR LAW

Employment – Dismissal – Whether with just cause and excuse – Domestic inquiry panel found employee not guilty of certain charges – Company unilaterally dismissed employee contrary to verdict of domestic inquiry panel – Whether allegation of employee neglecting or failing to perform duties without basis – Whether severe penalty of dismissal without justification – Doctrine of proportionality – Whether dismissal of employee unduly harsh, unreasonable and wholly disproportionate to offence committed
Lini Feinita Muhammad Feisol v. Indah Water Konsortium Sdn Bhd
(Lau Bee Lan, Hadhariah Syed Ismail & Gunalan Muniandy JJCA) [2021] 2 ILR 385

TRADE DISPUTE

Collective agreement – Article on payment of retrenchment benefits – Whether the company's computation of it had complied with the article in the Collective Agreement – Factors to consider – Evidence adduced – Effect of – Whether the union had successfully made out its case – Effect of – Whether the union's claim ought to be allowed – Industrial Relations Act 1967, ss. 26(2), 30(4) & 30(5) and reg. 6(2) Employment (Termination and Lay-Off Benefits) Regulations 1980
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Petroleum Dan Kimia Semenanjung Malaysiav. Rex Plastic (M) Sdn Bhd
(Augustine Anthony) [2021] 2 ILR 474

Collective Agreement – Terms and conditions of service – Transfer – Five employees transferred from Sarawak to Sabah – Transfer orders accepted under duress – Effect of – Whether their transfers had been carried out in compliance with their contracts of employment – Factors to consider – Evidence adduced – Effect of – Positions held by them – Whether it had been specialised jobs – Past actions of the company in relation to the transfer of its employees to another state – Whether the transfer orders had caused hardship and economic loss to the employees and their families – What the evidence had shown – Effect of – Whether the transfer orders ought to be rescinded
Airlines Workers' Union Sarawak v. MASwings Sendirian Berhad
(Ani Ak Solep) [2021] 2 ILR 556

Collective Agreement – Terms and conditions of service – Transfer – Transfer orders rescinded by a majority decision – Who should benefit from this award – Factors to consider – Effect of
Airlines Workers' Union Sarawak v. MASwings Sendirian Berhad
(Ani Ak Solep) [2021] 2 ILR 556

INDEKS PERKARA

KETIDAKPATUHAN

Award – Melalui Award No. 3061 tahun 2019, syarikat responden diarahkan untuk membayar pengadu sejumlah wang dalam tempoh masa 30 hari dari tarikh Award tersebut – Syarikat responden gagal membayar jumlah tersebut – Syarikat responden di dalam proses likuidasi dan pelikuidasi telah dilantik – Pengadu telah memfailkan Proof of Debt dengan pelikuidasi – Kesannya – Sama ada pengadu harus menunggu sehingga pihak pelikuidasi merealisasikan semua aset syarikat responden, mengikut keutamaan yang ditetapkan oleh undang-undang, sebelum hutangnya dapat dibayar – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Peruntukan undang-undang – Kesannya – Sama ada permohonan pengadu harus dibenarkan – Akta Syarikat 2016, s. 257 & Akta Perhubungan Perusahaan 1967, s. 56(1)
Mohd Akram Osman lwn. Malaysia Airlines System Berhad
(Rasidah Chik) [2021] 2 ILR 522