LATEST CASES (ILR Issue 01 of 2022)

SUBJECT INDEX

CONTRACT OF EMPLOYMENT

Terms and conditions – Demotion – Whether the claimant had been unilaterally demoted by the company – Her salary and remuneration remaining the same – Whether the company's actions had been unlawful – Factors to consider – Evidence adduced – Effect of – Whether the company had been in breach of the contract of employment
Phoo Siew Mun v. Tech Simpro Engineering Sdn Bhd
(Andersen Ong Wai Leong) [2022] 1 ILR 156

Terms and conditions – Notice of termination – Claimant terminated based on employment contract, ie, termination simpliciter – Whether it had rendered the dismissal, ipso facto, unlawful – Factors to consider – Effect of
Phoo Siew Mun v. Tech Simpro Engineering Sdn Bhd
(Andersen Ong Wai Leong) [2022] 1 ILR 156

DISMISSAL

Abandonment – Whether the claimant had abandoned his employment with the company – Sessions Court findings – Whether it had bound this Court – Factors to consider – Evidence adduced – Effect of – Whether abandonment successfully proven by the company against him – Evaluation of the evidence – Whether dismissal without just cause and excuse – Industrial Relations Act 1967, s. 30(5)
Ramanesh Ramoo Ramoo v. 23 Motors Sdn Bhd
(Noor Hayati Haji Mat) [2022] 1 ILR 41

Attendance – Lateness – Whether the claimant had been tardy in turning up for work – Whether successfully proven by the company against her – Factors to consider – Evidence adduced – Effect of
Phoo Siew Mun v. Tech Simpro Engineering Sdn Bhd
(Andersen Ong Wai Leong) [2022] 1 ILR 156

Breach of company rules and policies – Negligence – Claimant accused of neglecting her duties by chatting with her colleagues – Claimant's defence – Whether acceptable – Whether the charge had successfully been proven by the company against her – Factors to consider – Evidence adduced – Effect of
Phoo Siew Mun v. Tech Simpro Engineering Sdn Bhd
(Andersen Ong Wai Leong) [2022] 1 ILR 156

Breach of company rules and policies – Whether the claimants had been in breach of the company's Dasar Dan Tatacara Tatatertib DTT48 – Factors to consider – Evidence adduced – Effect of – Whether successfully proven by the company against them – Whether their actions had constituted serious misconduct – Whether their actions had warranted their dismissals – Evaluation of previous Industrial Court cases on similar misconduct – Effect of – Whether the company had acted reasonably towards them – Whether dismissals without just cause and excuse
Ahmad Kamal Ariffin Kamarudin & Ors v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2022] 1 ILR 79

Constructive dismissal – Salary – Bonus – Claimant given a bonus as per her contract – Effect of – Whether an employee, generally, had been entitled to it – Factors to consider – Evidence adduced – Effect of – Evaluation of the legal position – Whether failure to give an increment had amounted to a fundamental breach which went to the root of the contract of employment – Whether it justified an employee walking out and claiming constructive dismissal
Thanaletchumy Ramanujam v. The Royal Selangor Golf Club
(Syed Noh Said Nazir) [2022] 1 ILR 49

Constructive dismissal – Salary – Salary increment – Claimant not given a salary increment – Whether she had been entitled to it – Whether it had been at the club's discretion – Factors to consider – Evidence adduced – Effect of – Evaluation of the case laws – What it had shown – Whether it had been a breach of the fundamental terms of her employment contract – Whether she had been constructively dismissed – Whether dismissal without just cause and excuse
Thanaletchumy Ramanujam v. The Royal Selangor Golf Club
(Syed Noh Said Nazir) [2022] 1 ILR 49

Constructive dismissal – Warning letter – Claimant issued a warning letter for negligently performing her duties – Whether her actions towards the club had been negligent – Factors to consider – Evidence adduced – Effect of – Her defence(s) – Whether could be accepted – Club suffering losses – Effect of – Whether the club's actions had been reasonable under the circumstances – Whether she had been given an opportunity to be heard – What her actions had shown – Position held by the claimant in the club – Effect of – Whether issuing a warning letter had been a breach of the fundamental terms of her contract of employment – Position taken by the claimant – Whether the club had delayed in issuing it – Reasons for the same – Whether acceptable – Whether she had left the club on her own volition
Thanaletchumy Ramanujam v. The Royal Selangor Golf Club
(Syed Noh Said Nazir) [2022] 1 ILR 49

Insubordination – Claimant failing and/or delaying in signing the KPIs – Reasons for the same – Her defence – Whether acceptable – Whether her actions had been reasonable – Whether the charge had been successfully proven by the company against her – Factors to consider – Evidence adduced – Effect of
Phoo Siew Mun v. Tech Simpro Engineering Sdn Bhd
(Andersen Ong Wai Leong) [2022] 1 ILR 156

Insubordination – Claimant not assisting COW2 on payroll matters – Reasons for the same – Whether acceptable – Whether the charge had been successfully proven by the company against her – Factors to consider – Evidence adduced – Effect of
Phoo Siew Mun v. Tech Simpro Engineering Sdn Bhd
(Andersen Ong Wai Leong) [2022] 1 ILR 156

Misconduct – Claimant covertly recording the meeting without the company's knowledge or consent – Whether successfully proven by the company against her – Factors to consider – Evidence adduced – Effect of – Whether it had ipso facto been unlawful or had tantamounted to misconduct warranting dismissal – What her intentions had been in recording the meeting – Whether there had been malicious ulterior motives on her part – Whether it had been forbidden by either the company's rules and regulations or her contract of employment – Contents of the recordings – Whether it had compromised the interests of the company – Although unethical and improper, whether it had warranted her dismissal – Whether it had constituted gross misconduct justifying her dismissal
Phoo Siew Mun v. Tech Simpro Engineering Sdn Bhd
(Andersen Ong Wai Leong) [2022] 1 ILR 156

Misconduct – Whether the claimants had signed a petition letter seeking to remove the CEO/COW5 from the company, using external influence – Effect of – Whether the company's delay in taking action against them had constituted condonation on its part – Explanations given by the company for its delay – Whether acceptable – Whether the charge had successfully been proven by the company against them – Whether it had been serious misconduct justifying their dismissals – Whether an employee's unblemished record of service had acted as an immunity against dismissal
Ahmad Kamal Ariffin Kamarudin & Ors v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2022] 1 ILR 79

Misconduct – Whether the claimants had signed a petition letter seeking to remove the CEO/COW5 from the company, using external influence – Factors to consider – Evidence adduced – Effect of – Their defence – Whether could be accepted – What their actions had shown – Whether the company had suffered damage and its image had suffered – Effect of – Whether they had followed the grievance procedure set by the company – What they should have done instead – Positions held by the claimants in the company and their seniority – Effect of – Whether they had been victimised by the company – Whether the company had displayed mala fide intent towards them – Whether their actions had warranted their dismissals – Whether the company had successfully proven the charge against them – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ahmad Kamal Ariffin Kamarudin & Ors v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2022] 1 ILR 79

Performance – Poor performance – Whether the claimant had been a poor performer – Factors to consider – Evidence adduced – Effect of – Whether successfully proven by the company against her
Phoo Siew Mun v. Tech Simpro Engineering Sdn Bhd
(Andersen Ong Wai Leong) [2022] 1 ILR 156

DOMESTIC INQUIRY

Charges – Whether the charge against the claimants had been defective and unclear – Factors to consider – Evidence adduced – Effect of – Claimants' actions – What it had shown – Whether they had been prejudiced by it
Ahmad Kamal Ariffin Kamarudin & Ors v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2022] 1 ILR 79

Procedural impropriety – Whether the DI had been conducted in compliance with the rules of natural justice – Factors to consider – Evidence adduced – Effect of – Whether the claimants had been given the opportunity to defend themselves – Whether the Industrial Court hears the matter afresh anyway
Ahmad Kamal Ariffin Kamarudin & Ors v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2022] 1 ILR 79

EVIDENCE

Documentary evidence – Whether the claimant had been workman within the definition of the Industrial Relations Act – Factors to consider – Evidence adduced – Effect of – Evaluation of – What it had shown – What the intention of the parties had been – Conduct and actions of the company towards her – What it had shown – Claimant's conduct – Effect of – Industrial Relations Act 1967, s. 2
Bu Yoon Lian v. Meng Sin Corner
(Gulam Muhiaddeen Abdul Aziz) [2022] 1 ILR 1

Standard of proof – Whether the company had acted reasonably in thinking that the claimants had committed the misconduct – Evidence adduced – Evaluation of – Effect of – Company's actions towards the claimants – What it had shown – Whether it had behaved reasonably towards them
Ahmad Kamal Ariffin Kamarudin & Ors v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2022] 1 ILR 79

Witness – Claimants lying at the DI – Effect of – Whether they had been credible witnesses
Ahmad Kamal Ariffin Kamarudin & Ors v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2022] 1 ILR 79

INDUSTRIAL COURT

Jurisdiction – Whether the IC had the jurisdiction to hear this matter – Factors to consider – Claimant refusing the company's offer to report back to work – Effect of – Whether it had negated his right to pursue his claim in this Court
Ramanesh Ramoo Ramoo v. 23 Motors Sdn Bhd
(Noor Hayati Haji Mat) [2022] 1 ILR 41

Procedure – Action – Costs – Respondent's witness seeking costs for being dragged to Court – Whether it ought to be allowed – Factors to consider – Evidence adduced – Effect of
Philomina F F Silvari v. Daito Asia Development (M) Sdn Bhd
(Paramalingam J Doraisamy) [2022] 1 ILR 186

Procedure – Action – Res judicata principle – Whether applicable here – Factors to consider – Evidence adduced – Effect of – Issues raised by the claimant here already adjudicated and decided in the Sessions Court – Effect of – Whether a re‑litigation of those issues should be allowed in this Court – Whether this Court had been bound by the Sessions Court decision
Ramanesh Ramoo Ramoo v. 23 Motors Sdn Bhd
(Noor Hayati Haji Mat) [2022] 1 ILR 41

Procedure – Action – Striking out – Whether the claimant had unequivocally rejected the reinstatement offer by the company – Factors to consider – Evidence adduced – Effect of – Whether her claim had been frivolous, vexatious and an abuse of process – Whether the matter ought to be struck off – Industrial Relations Act 1967, ss. 20(1A) & 29(fa)
Yuen Foong Kuan v. Sedunia Travel Services Sdn Bhd
(Syed Noh Said Nazir) [2022] 1 ILR 250

Procedure – Action – Striking out – Whether the company's striking out application ought to be allowed – Factors to consider – Evidence adduced – Effect of – Effect of the Covid-19 Act – Whether the claimant's claim had been time-barred – Industrial Relations Act 1967, ss. 20(1A) & 29(fa) and Temporary Measures For Reducing The Impact Of Coronavirus Disease 2019 (Covid-19) Act 2020, ss. 1(2), 3 & 40
Yuen Foong Kuan v. Sedunia Travel Services Sdn Bhd
(Syed Noh Said Nazir) [2022] 1 ILR 250

Procedure – Action – Whether the IC Chairman should recuse himself from hearing the matter – Effect of – When a recusal application will be successful – Whether the Applicant had satisfied the test of a 'real danger of bias' – Whether the Applicant, by her actions, had been attempting to have a second bite of the cherry – What she should have done instead – Whether the Said Application ought to be allowed
Philomina F F Silvari v. Daito Asia Development (M) Sdn Bhd
(Paramalingam J Doraisamy) [2022] 1 ILR 23

Procedure – Action – Whether the IC Chairman should recuse himself from hearing this matter – Factors to consider – Evidence adduced – Effect of – Whether there had been a 'real danger of bias' – Evidence adduced – Effect of – Applicant's conduct and actions – What it had shown – Whether it had bordered on contempt – Whether the Said Application ought to be allowed – Whether she had complied with the legislation and its rules – Industrial Relations Act 1967, s. 33A and Industrial Court Rules, r. 21B
Philomina F F Silvari v. Daito Asia Development (M) Sdn Bhd
(Paramalingam J Doraisamy) [2022] 1 ILR 23

Procedure – Reference to High Court – Whether the Said Application ought to be allowed – Factors to consider – Evidence adduced – Effect of – Matter struck off after Applicant stating his intention not to proceed with the matter – Whether any points of law had been raised during the course of proceedings – Whether the Said Application ought to be allowed – Industrial Relations Act 1967, s. 33A
Lee Lai Fatt v. Kolej Universiti Tunku Abdul Rahman
(Reihana Abd Razak) [2022] 1 ILR 195

Procedure – Reference to High Court – Whether the Said Application ought to be allowed – Factors to consider – Evidence adduced – Effect of – Whether the Said Application had fulfilled all the conditions of s. 33A of the IRA – Whether the questions framed by the Applicant in Form U thereof, had been pure questions of law – Effect of – Whether it had been an attempt by the Applicant to appeal against the Award – Whether it ought to be allowed – What she should have done instead – Industrial Relations Act 1967, s. 33A
Philomina F F Silvari v. Daito Asia Development (M) Sdn Bhd
(Paramalingam J Doraisamy) [2022] 1 ILR 186

Procedure – Representation – Claimant seeking disqualification of DC to represent the company on the basis that he had not had locus standi – Whether DC had been an employee of the company – Factors to consider – Evidence adduced – Effect of – Whether the claimant's application ought to be allowed – Industrial Relations Act 1967, ss. 2, 27(1)(b), 27(2) and 30(5) & Industrial Court Rules 1967, r. 3
Syafreen Sallehudin v. Pearl Discovery Development Sdn Bhd
(Noor Hayati Mat) [2022] 1 ILR 200

INTERPRETATION

Award – Whether the phrase “less statutory deductions, if any” had attracted EPF and SOCSO contributions as well as income tax deductions – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, s. 33(1), Employees Provident Fund Act 1991, s. 2 & Employees' Social Security Act 1969
Anthony Cyprian Chin v. Daiken Sarawak Sdn Bhd
(Ani Ak Solep) [2022] 1 ILR 12

NON-COMPLIANCE

Award – Complainant gainfully employed elsewhere with higher pay when said Award handed down – Whether he had genuinely wanted to be reinstated in the company – Factors to consider – Evidence adduced – Effect of – Whether his complaint here had been bona fide – Whether it would be conscionable to allow it – Effect of
Tan Chee Tiam v. Schneider Electric Industries (M) Sdn Bhd
(Reihana Abd Razak) [2022] 1 ILR 224

Award – Court awarding reinstatement but complainant proposing the company pay him a sum of money in lieu thereof – Reasons for the same – Proposal made on a without prejudice basis – Effect of – Whether there had been a binding agreement reached between the parties – Factors to consider – Evidence adduced – Evaluation of – Conduct of the parties – What it had shown – Whether the formal execution of a written agreement had been a pre-condition to the complainant's proposal – Effect of – Whether the company had complied with the said Award – Whether the complainant's application ought to be allowed
Tan Chee Tiam v. Schneider Electric Industries (M) Sdn Bhd
(Reihana Abd Razak) [2022] 1 ILR 224

VARIATION ORDER

Award – Powers and discretion of the Court – Whether it ought to be exercised here – Industrial Relations Act 1967, s. 56(2)
Tan Chee Tiam v. Schneider Electric Industries (M) Sdn Bhd
(Reihana Abd Razak) [2022] 1 ILR 224

WORDS & PHRASES

“less statutory deductions, if any” – What deductions it attracted – Factors to consider – Evidence adduced – Effect of
Anthony Cyprian Chin v. Daiken Sarawak Sdn Bhd
(Ani Ak Solep) [2022] 1 ILR 12

INDEKS PERKARA

KETERANGAN

Bukti – Sama ada kesalahan jenayah perlu dibuktikan untuk satu pertuduhan salah laku sebelum keputusan memecat seseorang diambil – Penilaian undang-undang – Kesannya – Sama ada memadai untuk membuktikan bahawa pemberhentian tersebut adalah berdasarkan satu alasan yang munasabah
Mohd Azmir Muhammad Ramli lwn. Berjaya Waterfront Sdn Bhd
(Noor Hayati Haji Mat) [2022] 1 ILR 206

PEMBUANGAN KERJA

Ketidakpatuhan terhadap peraturan dan polisi syarikat – Kecuaian – Sama ada YM telah cuai di dalam menjalankan tugasnya – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Skop tugas beliau – Sama ada salah laku-salah laku tersebut berjaya dibuktikan oleh pihak syarikat terhadapnya – Penjelasan YM – Sama ada dapat diterima – Sama ada salah laku-salah laku YM merupakan salah laku-salah laku yang serius yang mewajarkan pembuangan kerjanya – Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab
Mohd Azmir Muhammad Ramli lwn. Berjaya Waterfront Sdn Bhd
(Noor Hayati Haji Mat) [2022] 1 ILR 206

Ketidakpatuhan terhadap peraturan dan polisi syarikat – Konflik kepentingan – YM menerima satu pinjaman mesra daripada seorang pelanggan syarikat – Sama ada tindakannya bertentangan dengan Code of Conduct dan Code of Ethics pihak syarikat – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Penilaiannya – Kesannya – Jawatan yang dipegang oleh YM – Sama ada salah laku ini berjaya dibuktikan oleh syarikat terhadapnya – Sama ada ianya mewajarkan penamatan perkhidmatannya – Sama ada penamatan perkhidmatan beliau telah dilakukan secara adil dan bersebab
Chan Chee Kit lwn. Ambank (M) Bhd
(Mohd Zulbahrin Zainuddin) [2022] 1 ILR 178

Pembuangan kerja secara konstruktif – Penggantungan kerja – YM digantung kerja, tanpa gaji, sehingga kes Mahkamah Kuala Lumpur antara syarikat responden dengannya diselesaikan – Sama ada tindakan syarikat responden tersebut merupakan kemungkiran asas kontrak pekerjaan YM – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Tindakan YM – Sama ada YM telah bertindak dengan segera atau dalam jangka masa yang munasabah – Kesannya – Sama ada YM telah dibuang kerja secara konstruktif – Sama ada pembuangan kerjanya telah dilakukan secara adil dan bersebab – Akta Kerja 1955, s. 14 dan Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Hendra Idham Sulaiman lwn. Koperasi Belia Nasional Berhad
(Kalmizah Salleh) [2022] 1 ILR 236