SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review – Application for – Judicial review against award by Industrial Court – Constructive dismissal – Industrial Court ordered applicant be paid back wages – Compensation for backwages deducted by 70% – Factors taken into account – Exercise of discretion in making deductions for post-dismissal earnings
Savithri Vello v. Eversendai Constructions (M) Sdn Bhd & Anor
(Su Tiang Joo JC) [2022] 2 ILR 389

CONTRACT OF EMPLOYMENT

Absence of – Claimant serving the company and/or entities linked to it for 16 years – Effect of – Whether the company, by its conduct, had evaded its duties and responsibilities to him – Factors to consider – Evidence adduced – Effect of – Whether his years of service with it could be disputed
Yong Chee Kong v. Gedung Eng Hong (Pekan) Sdn Bhd
(Augustine Anthony) [2022] 2 ILR 448

Existence of – Whether there had been an oral or written contract of employment between the claimant and the company – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether UAPL, the company and TKL Total Logistics had run its businesses as a single economic unit – What the law pertaining to the position of an employee who works within a group of companies had been – Effect of
Chiam Toon How v. Pilot Cargo (M) Sdn Bhd
(Paramalingam J Doraisamy) [2022] 2 ILR 483

DISMISSAL

Breach of company rules and policies – Unauthorised receipt of gratification – Claimant accused of receiving gratification from his suppliers in breach of the company's rules – Claimant slapped with the punishment of demotion, salary reduction and transfer – Whether it had amounted to double punishment – Factors to consider – Evidence adduced – Effect of – Whether it had constituted a fundamental breach of his contract of employment – Whether it had justified him walking out of his employment and claiming constructive dismissal – Whether dismissal without just cause and excuse
Gunasegaran Kupusamy v. Fima Bulking Services Berhad
(Paramalingam J Doraisamy) [2022] 2 ILR 461

Constructive dismissal – Repudiation of contract based on anticipatory breach – Company seeking to terminate the claimant and remove him as a Director – What the company's actions had shown – Whether it had been carried out bona fide – Whether it had breached fundamental terms of the employment contract that had entitled him to walk out claiming constructive dismissal
Chiam Toon How v. Pilot Cargo (M) Sdn Bhd
(Paramalingam J Doraisamy) [2022] 2 ILR 483

Constructive dismissal – Transfer – Whether his transfer order, to a location some 360 km away, had amounted to a fundamental breach of his contract of employment – Factors to consider – Evidence adduced – Effect of – Whether he had waived or repudiated his constructive dismissal claim by replying to the WhatsApp messages – Evaluation of the evidence – Effect of – Whether dismissal without just cause or excuse
Gunasegaran Kupusamy v. Fima Bulking Services Berhad
(Paramalingam J Doraisamy) [2022] 2 ILR 461

Misconduct – Assault – Whether the claimant had assaulted COW1 by throwing a motorcycle helmet at him – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant admitting to the same at various times and extending his apologies in his reply to the show cause letter – What that had meant – Whether the charge had successfully been proven against him – Whether it had constituted serious misconduct – Claimant's defence – Whether could be accepted – Whether the company had acted reasonably in dismissing him – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Theventhiran Kurupusamy v. Aalborg Portland Malaysia Sdn Bhd
(Zulhelmy Hasan) [2022] 2 ILR 563

Retrenchment – Cessation of business – Company ceasing its operation indefinitely – Reasons for the same – Whether genuine – Whether it had successfully proven that it had been running at a loss – Evidence adduced – Evaluation of – Effect of
Badariah Shahrudin v. Mudra Resources Sdn Bhd
(Amrik Singh) [2022] 2 ILR 539

Retrenchment – Redundancy – Claimant retrenched based on company's financial situation – Whether financial difficulties successfully proven by the company – Factors to consider – Evidence adduced – Effect of – What the SSM search results had indicated – Company's actions – What it had shown – Whether the retrenchment exercise on the claimant had been carried out bona fide – Effect of – Whether it had been carried out hastily – Whether the claimant's dismissal had been carried out with just cause and excuse
Choong Wai Kit v. Tropicana Shared Services Sdn Bhd
(Teoh Chin Chong) [2022] 2 ILR 401

Retrenchment – Redundancy – Selection for redundancy – Whether the company had acted bona fide when retrenching the claimant – Factors to consider – Evidence adduced – Effect of – Whether dismissal without just cause and excuse
Choong Wai Kit v. Tropicana Shared Services Sdn Bhd
(Teoh Chin Chong) [2022] 2 ILR 401

Retrenchment – Redundancy – Whether the claimant's termination, on the ground of redundancy, had been carried out in a bona fide matter – Factors to consider – Evidence adduced – Effect of
Badariah Shahrudin v. Mudra Resources Sdn Bhd
(Amrik Singh) [2022] 2 ILR 539

Retrenchment – Redundancy – Whether the company had been faced with a genuine redundancy situation – What the evidence had shown – Claimant contending that the company had been operating as usual – Whether supported by the evidence – Effect of – Whether the real reason for his termination had been clear – Whether his dismissal had been carried out without just cause and excuse
Yong Chee Kong v. Gedung Eng Hong (Pekan) Sdn Bhd
(Augustine Anthony) [2022] 2 ILR 448

Retrenchment – Reorganisation – Whether the company's reorganisation exercise had been carried out in a bona fide manner – Factors to consider – Evidence adduced – Effect of – Whether there had been a genuine need by it to reorganise its business – Whether it had been facing a financial crisis – Effect of – What its actions had shown – Whether the claimant had been singled out for retrenchment – Effect of – Whether the company had acted in compliance with the LIFO principle and the Code of Conduct for Industrial Harmony – Whether it had needed to – Effect of – Whether dismissal without just cause and excuse
Badariah Shahrudin v. Mudra Resources Sdn Bhd
(Amrik Singh) [2022] 2 ILR 539

DOMESTIC INQUIRY

Procedural impropriety – DI chaired by investigating officer – Effect of
Gunasegaran Kupusamy v. Fima Bulking Services Berhad
(Paramalingam J Doraisamy) [2022] 2 ILR 461

Procedural impropriety – DI convened after the claimant had already been found guilty of the allegations against him in the Letter – Effect of – Whether the DI had overstepped its boundaries by deciding to retain the punishments in the Letter and enhancing his salary reduction
Gunasegaran Kupusamy v. Fima Bulking Services Berhad
(Paramalingam J Doraisamy) [2022] 2 ILR 461

EVIDENCE

Adverse inference – Company failing to produce the CCTV footage of the parling area – Whether an adverse inference ought to drawn against it – Claimant failing to plead it – Effect of – When adverse inference applies – Evidence Act 1950, s. 114(g)
Theventhiran Kurupusamy v. Aalborg Portland Malaysia Sdn Bhd
(Zulhelmy Hasan) [2022] 2 ILR 563

Documentary evidence – Whether the claimant had been an employee/ workman of the company – Factors to consider – Evidence adduced – Effect of – Whether the written employment contract between him and UAPL had also encompassed his employment with the company – Evaluation of the facts – What it had shown – Whether all employment contracts had to be in written form
Chiam Toon How v. Pilot Cargo (M) Sdn Bhd
(Paramalingam J Doraisamy) [2022] 2 ILR 483

Witness – Failure to call – Company failing to call the person(s) who could answer why the claimant had been selected for retrenchment – Effect of – Whether it had successfully established that a genuine retrenchment situation had existed in it – Effect of – Company's actions thereafter – What it had indicated – Whether the claimant's retrenchment had been carried out bona fide
Choong Wai Kit v. Tropicana Shared Services Sdn Bhd
(Teoh Chin Chong) [2022] 2 ILR 401

INDUSTRIAL COURT

Dismissal – Award – Application for judicial review against award by Industrial Court – Whether workman gainfully employed after dismissal – Legal and evidential burden of proof – Whether burden laid upon workman or employer to prove workman was gainfully employed after dismissal
Savithri Vello v. Eversendai Constructions (M) Sdn Bhd & Anor
(Su Tiang Joo JC) [2022] 2 ILR 389

Jurisdiction – Where the Industrial Court derives its jurisdiction from – Whether the Proposed Amended Statement of Case would be consonant and in accordance with the DG's reference, thus giving the Court the jurisdiction to adjudicate the matter – Factors to consider – Evidence adduced – Effect of – Whether the amendments ought to be allowed
Ajis Deli v. Shell MDS (Malaysia) Sdn Bhd
(Eswary Maree) [2022] 2 ILR 583

Procedure – Action – Discrepancy between the date of dismissal stated in the pleadings and the Ministerial Reference – Effect of – Determination of claimant's dismissal date – Factors to consider – Evidence adduced – Effect of
Badariah Shahrudin v. Mudra Resources Sdn Bhd
(Amrik Singh) [2022] 2 ILR 539

Procedure – Pleadings – Amendment of pleadings – Claimant applying to amend his Rejoinder – Whether it ought to be allowed – Industrial Relations Act 1967, its Rules and the Industrial Court Practice Directions not expressly prohibiting the company from filing a Surrejoinder – Effect of – Whether it had been irregular to allow the filing of a Surrejoinder – Evaluation of the legislation and case laws – Effect of – Industrial Relations Act 1967, ss. 29(g) & 30(5)
Mohd Khairil Haidar Mohd Anuar v. Hong Leong Bank Berhad
(Eswary Maree) [2022] 2 ILR 415

Procedure – Pleadings – Amendment of pleadings – Claimant seeking to amend his Rejoinder that had been filed when he had been unrepresented by solicitors – Whether it ought to be allowed – Factors to consider – Evidence adduced – Effect of – Whether it would prejudice the company – Effect of – Industrial Court Rules 1967 not having any specific provision pertaining to applications to amend pleadings – Effect of – Duty of the Industrial Court in considering amendment applications – Industrial Relations Act 1967, ss. 29(g) & 30(5) and Industrial Court Rules 1967
Mohd Khairil Haidar Mohd Anuar v. Hong Leong Bank Berhad
(Eswary Maree) [2022] 2 ILR 415

Procedure – Pleadings – Amendment of pleadings – Claimant seeking to amend his Statement of Case that had been filed when he had been unrepresented by solicitors – Whether it ought to be allowed – Factors to consider – Evidence adduced – Effect of – Whether the Proposed Amended Statement of Case, which changed the ground of dismissal from constructive dismissal to retrenchment and shifted the burden of proof, would prejudice the company – Whether it would alter the character of the claim – Effect of – Whether the Application had been made bona fide – Duty of the Industrial Court in considering amendment applications – Industrial Relations Act 1967, ss. 29(g) & 30(5)
Ajis Deli v. Shell MDS (Malaysia) Sdn Bhd
(Eswary Maree) [2022] 2 ILR 583

Remedies – Backwages – Claimant had 27 more months to complete on his contract of employment – What would be a suitable amount to award him and the calculation of quantum – Factors to consider – Whether postdismissal earnings ought to be deducted – Industrial Relations Act 1967, Second Schedule
Chiam Toon How v. Pilot Cargo (M) Sdn Bhd
(Paramalingam J Doraisamy) [2022] 2 ILR 483

Remedies – Backwages – Determination of quantum – Claimant serving company for 34 years – Whether any deductions ought to be made in view of the Covid-19 pandemic and the various Movement Control Orders imposed by the Government
Gunasegaran Kupusamy v. Fima Bulking Services Berhad
(Paramalingam J Doraisamy) [2022] 2 ILR 461

Remedies – Backwages – What would be a suitable amount to award the probationer claimant – Factors to consider – Effect of
Choong Wai Kit v. Tropicana Shared Services Sdn Bhd
(Teoh Chin Chong) [2022] 2 ILR 401

Remedies – Claimant claiming for arrears of salary, unpaid expenses and 10% share of his profit in the company – Whether it ought to be allowed – Factors to consider – Evidence adduced – Effect of – Whether the Industrial Court had jurisdiction to award the same
Chiam Toon How v. Pilot Cargo (M) Sdn Bhd
(Paramalingam J Doraisamy) [2022] 2 ILR 483

Remedies – Compensation in lieu of reinstatement – Determination of quantum
Gunasegaran Kupusamy v. Fima Bulking Services Berhad
(Paramalingam J Doraisamy) [2022] 2 ILR 461

Remedies – Compensation in lieu of reinstatement – Whether it ought to be allowed – Factors to consider – Evidence adduced – Effect of
Chiam Toon How v. Pilot Cargo (M) Sdn Bhd
(Paramalingam J Doraisamy) [2022] 2 ILR 483

Remedies – Reinstatement – Whether suitable to award to probationer claimant – Factors to consider – Effect of
Choong Wai Kit v. Tropicana Shared Services Sdn Bhd
(Teoh Chin Chong) [2022] 2 ILR 401

LABOUR LAW

Employment – Retrenchment – Claim for retrenchment benefits – Whether employee entitled to retrenchment or termination benefits – Whether employee an employee under Employment Act 1955 – Whether employee manual worker or involved in supervision work – Whether company's Employee Handbook part and parcel of contract of service – Employment Act 1955, ss. 69(1)(a), 69A & 69B
Abdul Razab Yahaya v. Champsurf Sdn Bhd
(Tun Abd Majid Hamzah J) [2022] 2 ILR 381

WORDS & PHRASES

“cause of action” – Whether it had existed in the Industrial Court – Whether it ought to be confined to suits filed in the Civil Courts
Ajis Deli v. Shell MDS (Malaysia) Sdn Bhd
(Eswary Maree) [2022] 2 ILR 583

INDEKS PERKARA

KONTRAK PERKHIDMATAN

Kekecewaan kontrak – Sama ada kemalangan dan kecederaan YM di tapak pembinaan, telah menjadikan beliau tidak berkeupayaan untuk menjalankan tugasannya sebagai Juru Ukur – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada dakwaan ini berjaya dibuktikan oleh pihak syarikat terhadapnya – Sama ada ia mewajarkan pembuangan kerjanya – Sama ada pembuangan kerjanya telah dilakukan secara adil dan bersebab
Wan Zainuddin Wan Daud lwn. Juteras Vision Sdn Bhd
(Syed Noh Said Nazir) [2022] 2 ILR 513

PEMBUANGAN KERJA

Ketidakhadiran – Sama ada YM telah gagal untuk hadir bertugas untuk dua hari – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada salah laku ini berjaya dibuktikan oleh pihak syarikat terhadapnya – Sama ada ia mewajarkan pembuangan kerja beliau – Sama ada pembuangan kerjanya telah dilakukan secara adil dan bersebab
Wan Zainuddin Wan Daud lwn. Juteras Vision Sdn Bhd
(Syed Noh Said Nazir) [2022] 2 ILR 513

Ketidakpatuhan terhadap peraturan dan polisi syarikat – Kecuaian – Sama ada YM telah gagal untuk mematuhi SOP syarikat responden – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada YM cuai di dalam menjalankan tugasannya – Syarikat responden mengalami kerugian besar – Kesannya – Sama ada pertuduhan-pertuduhan ini berjaya dibuktikan oleh syarikat responden terhadap beliau – Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab – Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Nordin Ahmad lwn. Padiberas Nasional Berhad
(Zahruddin Mohammed Isa) [2022] 2 ILR 425

Salah laku – Sama ada YM telah enggan untuk mendapatkan rawatan 'physio' – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada dakwaan ini berjaya dibuktikan oleh pihak syarikat terhadapnya – Sama ada ia mewajarkan pembuangan kerjanya – Sama ada pembuangan kerjanya telah dilakukan secara adil dan bersebab
Wan Zainuddin Wan Daud lwn. Juteras Vision Sdn Bhd
(Syed Noh Said Nazir) [2022] 2 ILR 513

Salah laku – Sama ada YM telah membuat tuntutan haram ataupun berpakat dengan rakan sekerjanya yang lain untuk mengemukakan tuntutan haram – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada dakwaan ini berjaya dibuktikan oleh pihak syarikat terhadapnya – Sama ada ia mewajarkan pembuangan kerjanya – Sama ada pembuangan kerjanya telah dilakukan secara adil dan bersebab
Wan Zainuddin Wan Daud lwn. Juteras Vision Sdn Bhd
(Syed Noh Said Nazir) [2022] 2 ILR 513

Salah laku – YM gagal memaklumkan pihak syarikat mengenai kes-kes beliau yang lain di MP – Sama ada ianya merupakan satu salah laku yang mewajarkan pembuangan kerjanya – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya
Wan Zainuddin Wan Daud lwn. Juteras Vision Sdn Bhd
(Syed Noh Said Nazir) [2022] 2 ILR 513