LATEST CASES (ILR Issue 12 of 2021)

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review – Appeal – Employee demoted and re-graded and scope of duties reduced – Employee given option to accept demotion and re-grading or resign – Employee resigned and claimed constructive dismissal – Matter referred to Industrial Court and dismissed – Whether warranted intervention by High Court – Whether Industrial Court took into consideration relevant matters in arriving at decision to dismiss case – Whether there was sufficient judicial appreciation of totality of evidence by Industrial Court and High Court
Ng Teck Fay v. Mahkamah Perusahaan Malaysia & Anor
(Lau Bee Lan, Mohd Sofian Abd Razak & Lee Heng Cheong JJCA) [2021] 4 ILR 481

Judicial review – Application for – Order for confirmation of promotion – Applicant’s acting post approved – Subsequently reverted to original position – Whether failed to attain satisfactory level of competence – Whether there was gross impropriety in assessment – Whether application amenable to judicial review – Whether applicant satisfied test of being public servant – Whether there was infringement of terms and conditions of employment contract – Whether documents relied upon by applicant had support of law – Whether applicant correctly named parties – Malaysian Industrial Development Authority (Incorporation) Act 1965, ss. 3(1), 3A, 3D, 6B & 7A
Vinodh Mariappa v. Ketua Pengarah Eksekutif, Lembaga Pembangunan Pelaburan Malaysia, CEO MIDA & Ors
(Noorin Badaruddin J) [2021] 4 ILR 495

Judicial review – Certiorari – Application to quash decision of Public Services Commission – Public officer posted comment on former Prime Minister’s Facebook account – Public officer charged under reg. 19(1)(b) of Public Officers (Conduct and Discipline) Regulations 1993 – Disciplinary authority found public officer failed to exculpate from charge without giving reasons – Public officer dismissed from service – Whether decision to dismiss public officer reasonable and proportionate
Nazrul Imran Mohd Nor v. Civil Service Commission Malaysia & Anor
(Mohamad Zabidin Mohd Diah, Abu Bakar Jais & Darryl Goon Siew Chye JJCA) [2021] 4 ILR 455

Public officer – Dismissal – Public officer posted comment on former Prime Minister’s Facebook account – Public officer charged under reg. 19(1)(b) of Public Officers (Conduct and Discipline) Regulations 1993 – Disciplinary authority found public officer failed to exculpate from charge without giving reasons – Public officer dismissed from service – Whether decisions of inferior tribunals or decision-making bodies could be reviewed and scrutinised by courts – Whether Disciplinary Authority duty-bound to explain and give reasons for rejecting grounds given by public officer in representation – Whether statement may embarrass or bring disrepute to Government – Whether decision to dismiss public officer reasonable and proportionate
Nazrul Imran Mohd Nor v. Civil Service Commission Malaysia & Anor
(Mohamad Zabidin Mohd Diah, Abu Bakar Jais & Darryl Goon Siew Chye JJCA) [2021] 4 ILR 455

CONTRACT OF EMPLOYMENT

Terms and conditions – Notice of termination – Claimant detained and arrested for possession of dangerous drugs but failing to inform the company – Company terminating him, based on frustration of contract – Whether reasonable – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether dismissal with just cause and excuse – Industrial Relations Act 1967, s. 20(3)
Sathasivam Muthusamy v. Tenaga Nasional Berhad
(Andersen Ong Wai Leong) [2021] 4 ILR 558

Terms and conditions – Notice of termination – Whether it had been backdated, premature and pre-emptive and issued without due process – Factors to consider – Evidence adduced – Effect of – Whether his arrest and detention had rendered his contract of employment impossible to perform – Whether termination simpliciter – Whether an enquiry had been required – Factors to consider – Effect of
Sathasivam Muthusamy v. Tenaga Nasional Berhad
(Andersen Ong Wai Leong) [2021] 4 ILR 558

DISMISSAL

Abandonment – Claimant not agreeing with the direction the company had been moving towards and failing to realign himself with his co-founders – Whether he had abandoned his job – Evidence adduced – Evaluation of – Effect of
Kevin Colandairaj v. Healthcare Optimisation Partners Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2021] 4 ILR 579

Attendance – Lateness – Whether the claimant had been tardy in attending work – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant given a show cause letter but unwilling and/or failing to improve – What it had shown – Whether it had justified his dismissal
Khoo Kim Loang v. ITZ My Treats Sdn Bhd
(Reihana Abd Razak) [2021] 4 ILR 550

Constructive dismissal – Change in job function – Claimant given a deadline to revert with an answer on whether he is onboard with the company’s plans – Whether imposing a deadline on him to revert with an answer had been unreasonable – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether he had been constructively dismissed – Whether dismissal without just cause and excuse
Kevin Colandairaj v. Healthcare Optimisation Partners Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2021] 4 ILR 579

Constructive dismissal – Change in reporting structure and demotion – Whether the company’s implementation of OpPlan19 had been a fundamental breach of his contract of employment – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant’s position in the company – Whether he had been obliged to comply and participate – Perusal of his employment contract – What it had shown – Whether the company had indicated any mala fide intention towards him – Effect of – Whether he had been constructively dismissed – Whether dismissal without just cause and excuse
Kevin Colandairaj v. Healthcare Optimisation Partners Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2021] 4 ILR 579

Constructive dismissal – Salary – Claimant’s salaries not paid/part paid – Whether it had constituted a fundamental breach of his contract of employment – Factors to consider – Evidence adduced – Effect of – Whether he had condoned it – Claimant’s position in the company – What it had reflected – Whether he had been constructively dismissed – Whether dismissal without just cause and excuse
Kevin Colandairaj v. Healthcare Optimisation Partners Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2021] 4 ILR 579

Performance – Unsatisfactory performance – Whether the claimant had performed poorly – Whether proven by the company – Evidence adduced – Evaluation of – Effect of – Whether the claimant had been informed of his shortcomings and given opportunity to improve – Whether he had been coached and counselled – Conduct and actions of the company towards him – What it had shown – Effect of – Claimant’s attitude – What it had reflected – Whether the company’s actions towards him had been reasonable – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Khoo Kim Loang v. ITZ My Treats Sdn Bhd
(Reihana Abd Razak) [2021] 4 ILR 550

Police investigation – Claimant arrested and detained in prison – Claimant not turning up for work and failing to apply for leave from the company – What he should have done if he had been serious about continuing in employment with it – Whether the claimant had been unable to perform the job he had been hired for, due to his arrest and detention – Length of his stay in prison – Effect of – Company’s actions towards him – Whether justified – Whether dismissal without just cause and excuse
Sathasivam Muthusamy v. Tenaga Nasional Berhad
(Andersen Ong Wai Leong) [2021] 4 ILR 558

Probation – Whether the claimant had been a probationer at the time of his dismissal – Factors to consider – Evidence adduced – Evaluation of – Effect of – No probation clause in his letter of employment – Effect of – Whether he had been a permanent employee in the company
Khoo Kim Loang v. ITZ My Treats Sdn Bhd
(Reihana Abd Razak) [2021] 4 ILR 550

EVIDENCE

Documentary evidence – Whether the claimant had been a workman within the definition of the Industrial Relations Act 1967 – Factors to consider – Evidence adduced – Effect of – Claimant wearing multiple hats in the company, including that of a majority shareholder – Effect of – Industrial Relations Act 1967, s. 2
Kevin Colandairaj v. Healthcare Optimisation Partners Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2021] 4 ILR 579

INDUSTRIAL COURT

Dismissal – Constructive dismissal – Employee demoted and re-graded and scope of duties reduced – Employee given option to accept demotion and re-grading or resign – Employee opted to resign and claimed constructive dismissal – Matter referred to Industrial Court dismissed – Whether Industrial Court took into consideration relevant matters in arriving at decision to dismiss case – Whether there was sufficient judicial appreciation of totality of evidence
Ng Teck Fay v. Mahkamah Perusahaan Malaysia & Anor
(Lau Bee Lan, Mohd Sofian Abd Razak & Lee Heng Cheong JJCA) [2021] 4 ILR 481

Procedure – Action – Claimant has 26 cases registered under his name in the IC – Whether the previous records of an employee in the IC may be directly relevant to the allegations in a new case – What could be inferred by the number of cases filed by him – Effect of
Khoo Kim Loang v. ITZ My Treats Sdn Bhd
(Reihana Abd Razak) [2021] 4 ILR 550

Procedure – Action – Company applying for its witness to give evidence vide video conferencing – Whether it ought to be allowed – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, ss. 29(g) & 30(5)
Wong Fong Yee v. Thermo Fisher Scientific Malaysia Sdn Bhd
(Teoh Chin Chong) [2021] 4 ILR 573

Procedure – Action – Ex parte proceedings – Company electing not to file any documents and not to defend the claim – Effect of – Whether the claimant’s constructive dismissal claim had been made out – Factors to consider – Evidence adduced – Effect of – Whether dismissal without just cause and excuse – Industrial Relations Act 1967, s. 29(d)
Nadarajan Pakirisamy v. Evoc Action Sdn Bhd
(Reihana Abd Razak) [2021] 4 ILR 522

LABOUR LAW

Employment – Constructive dismissal – Employee demoted and re-graded – Scope of duties reduced – Employee given option to accept demotion and re-grading or resign – Employee opted to resign – Whether employee could be demoted or re-graded to post which he never held before – Whether there was breach of employment contract by employer – Whether breach sufficiently important to justify employee resigning – Whether employee left in response to breach – Whether employee occasioned undue delay in terminating contract – Whether employee waived breach and agreed to vary contract – Whether there was constructive dismissal
Ng Teck Fay v. Mahkamah Perusahaan Malaysia & Anor
(Lau Bee Lan, Mohd Sofian Abd Razak & Lee Heng Cheong JJCA) [2021] 4 ILR 481

Employment – Dismissal of workman – Industrial Court – Jurisdiction – Representations – Whether term ‘representations’ ties jurisdiction of Industrial Court to reasons, factors or events operating in mind of employer at time of dismissal – Whether focus of enquiry of Industrial Court premised on matters and events which occurred at time of dismissal – Whether wording of s. 20 of Industrial Relations Act 1967 prescribes or allows overarching survey by Industrial Court of any and all matters both pre and post-dismissal – Whether ‘just cause or excuse’ only refer to reason resonating in employer’s mind prior to decision to dismiss – Whether subsequent and fresh evidence could be utilised retrospectively to justify termination – Literal and purposive statutory construction of s. 20 – Whether envisages employer seeking to justify termination utilising post-dismissal reasons – Whether Industrial Court has right to enquire into reasons subsequently put up by employer via pleadings to justify dismissal when such reasons were not given at time of dismissal – Industrial Relations Act 1967, s. 20(1), (3)
Maritime Intelligence Sdn Bhd v. Tan Ah Gek
(Rohana Yusuf PCA, Nallini Pathmanathan & Harmindar Singh Dhaliwal FCJJ) [2021] 4 ILR 417

Industrial Court – Jurisdiction – Dismissal of workman – Representations – Whether term ‘representations’ ties jurisdiction of Industrial Court to reasons, factors or events operating in mind of employer at time of dismissal – Whether focus of enquiry of Industrial Court premised on matters and events which occurred at time of dismissal – Whether wording of s. 20 of Industrial Relations Act 1967 prescribes or allows overarching survey by Industrial Court of any and all matters both pre and post-dismissal – Whether ‘just cause or excuse’ only refer to reason resonating in employer’s mind prior to decision to dismiss – Whether subsequent and fresh evidence could be utilised retrospectively to justify termination – Literal and purposive statutory construction of s. 20 – Whether envisages employer seeking to justify termination utilising post-dismissal reasons – Whether Industrial Court has right to enquire into reasons subsequently put up by employer via pleadings to justify dismissal when such reasons were not given at time of dismissal – Industrial Relations Act 1967, s. 20(1), (3)
Maritime Intelligence Sdn Bhd v. Tan Ah Gek
(Rohana Yusuf PCA, Nallini Pathmanathan & Harmindar Singh Dhaliwal FCJJ) [2021] 4 ILR 417

INDEKS PERKARA

PERTIKAIAN PERUSAHAAN

Perjanjian Kolektif – Terma dan syarat perkhidmatan – Sama ada syarikat responden telah gagal untuk membayar caruman KWSP ke atas komisen YM – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Tindakan YM – Apa ia menunjukkan – Sama ada tuntutan pihak kesatuan harus dibenarkan – Akta Perhubungan Perusahaan 1967, ss. 18 & 26(2)
National Union Of Newspaper Workers lwn. Kwong Wah Yit Poh Press Berhad
(Zahruddin Mohammed Isa) [2021] 4 ILR 531