 |
||
|
||
LATEST CASES (ILR Issue 7 of 2022) |
||
|
SUBJECT INDEX ADMINISTRATIVE LAW Judicial review – Exercise of discretion – Reference of claimant's
representation by Minister to Industrial Court – Whether Minister exercised
discretion according to law – Whether Minister decided that claimant was
workman – Whether matter for Industrial Court to adjudicate – Whether
requirement for notification under s. 20(2) of Industrial Relations Act 1967
merely administrative – Whether failure to exhibit notification nullified
Minister's decision – Whether Minister's decision ought to be quashed CONTRACT OF EMPLOYMENT Terms and conditions – Clause on retirement – Contract of Employment
silent on it but claimant bound by terms and conditions in Staff Handbook
Versions 1 and 2 – Retirement age in Staff Handbook Version 2 amended to
55 for female Chinese nationals – Claimant a Chinese national – Whether her
retirement age had been 55 – Whether the company had promised to retire
her at 60 – Factors to consider – Evidence adduced – Evaluation of – Effect
of – Whether the claimant had been retired lawfully or dismissed by the
company – Whether dismissal without just cause and excuse
Terms and conditions – Notice of termination – Claimant terminated with
24 hours' notice – Whether it had been a breach of his contract of
employment – Factors to consider – Evidence adduced – Effect of – Perusal
of his employment contract – What it had indicated
Terms and conditions – Notice of termination – Whether an enquiry can
only be made into matters and events that occur at the time of dismissal and
not those subsequently raised in pleadings – Perusal and evaluation of the
case laws – Effect of – Determination of the reason for the claimant's
dismissal
Type of – Fixed-term contract – Whether the claimant had been on a genuine
fixed-term contract – Factors to consider – Evidence adduced – Effect of – Perusal of the terms and conditions of the Contract – Company's actions
towards him – What it had indicated – Whether he had been treated with bias – Claimant the only one singled out for non-renewal – Effect of – Whether
the non-renewal of his contract had effectively been a dismissal – Whether
dismissal without just cause and excuse
DISMISSAL Absenteeism – Whether the claimant had been absent from work without
leave – Factors to consider – Evidence adduced – Effect of – Contents of the
Dismissal letter – What it had shown – Whether absenteeism successfully
proven against him – Company's actions towards him – Whether acceptable
and could be condoned – Effect of – Claimant's years of service with the
company – No warning or show cause letters issued to him – What that had
indicated – Whether his dismissal had been justified – Whether dismissal
without just cause and excuse
Insubordination – Claimant failing to follow the company's instructions on
the safekeeping of the key to the cash box – What she had done instead – Whether it had constituted insubordinate behaviour – Factors to consider – Evidence adduced – Effect of – Her explanations – Whether acceptable – Company suffering a break-in and losing the petty cash – Effect of – Whether
the charge had been proven by the company against her – Whether it had
justified her dismissal – Whether dismissal without just cause and excuse
Insubordination – Whether the claimant had been issued the Travel letter – Whether he had been instructed to be physically present at work – Claimant the only person in the Planning section asked to be physically
present at work – Effect of – Claimant's name not on the MITI permission
approval list – Effect of – What the company's actions towards him had
indicated – Whether it had acted bona fide towards him
Misconduct – Claimant keeping the key to the safe box in a locked cabinet
despite being told to keep it with her at all times – Company suffering a
break-in and contents of the safe box taken – Effect of – Whether her actions
had constituted serious misconduct – Factors to consider – Evidence adduced – Effect of – Whether the company had acted reasonably in dismissing her – Whether dismissal with just cause and excuse
Misconduct – Whether the claimant had had a problem communicating with
his clients and colleagues, had delayed and/or failed to respond to messages
from them and had been uncontactable during office hours – Factors to
consider – Evidence adduced – Effect of – Whether his actions had
constituted serious misconduct – Whether his actions had affected the
company's business – Effect of – Whether it had justified his dismissal – Whether dismissal without just cause and excuse
Notice of termination – Claimant served a Notice of Retirement – Whether
it had complied with the company's Staff Handbooks – Whether she had
been retired by the company – Factors to consider – Evidence adduced – Effect of – Claimant a China Chinese employee/Chinese national – Whether
she had been subject to the Minimum Retirement Age Act 2012
Retrenchment – Redundancy – Claimant retrenched – Whether his position
had become redundant – Whether his retrenchment had been carried out bona fide – Factors to consider – Evidence adduced – Evaluation of the evidence – Effect of – Whether the company had been under an obligation to give him
an option in another role or location before retrenching him – Effect of – Whether the claimant had been dismissed without just cause and excuse
Retrenchment – Redundancy – Selection for redundancy – Whether the
company had complied with LIFO and the Code of Conduct for Industrial
Harmony when retrenching the claimant – Factors to consider – Evidence
adduced – Effect of – Whether the company's actions had been carried out
bona fide – Claimant not paid retrenchment benefits and terminated with
24 hours' notice – What the company's actions had shown – Whether
dismissal without just cause and excuse
Retrenchment – Reorganisation – Whether there had been a genuine need
for the reorganisation exercise undertaken by the company – Factors to
consider – Evidence adduced – Effect of – The company's financial position – What it had shown – Whether it had carried out its reorganisation process
bona fide
EVIDENCE Documentary evidence – Admissibility – Claimant tendering facts and
additional documents in his Written Submissions for the first time – Whether
it had been admissible – Whether parties had been bound by their pleadings – Effect of
Witness – Failure to call – Company failing to call the person who signed
the Termination Letter or the Director(s) who had collectively decided to
retrench the claimant – Whether fatal to its case – Factors to consider – Evidence adduced – 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
INDUSTRIAL COURT Procedure – Action – Whether the IC Chairman should recuse herself from
hearing this matter – Factors to consider – Effect of – Duty of the Industrial
Court Chairman – Whether the functions of a court or tribunal should
depend on “the suspicions of the ultra-sensitive, paranoid or cynical” – Whether Encl. 59 ought to be allowed
Procedure – Action – Whether the IC Chairman should recuse herself from
hearing the matter – Factors to consider – Evidence adduced – Effect of – Hearing of a trade dispute – Whether she had been the sole adjudicator – Whether the company had satisfied the test of a ‘real danger of bias' – Conduct of the company – What it had shown – Company delaying in taking
action – Effect of – Whether Encl. 59 ought to be allowed
Procedure – Pleadings – Whether parties had been bound by the four corners
of its pleadings – Effect of – What it could and could not do – Whether the
company's averments that it had suffered an adverse economic situation
would be looked into – Whether it had been proven by the evidence
Remedies – Compensation – Backwages and compensation in lieu of
reinstatement – Calculation of – Factors to consider – Effect of
Remedies – Reinstatement – Whether suitable to award the claimant – Company making unsubstantiated allegations that his wife had absconded
and that he had been involved with loan sharks – Effect of
LABOUR LAW Employment – Overtime payment – Claim for – Whether claimants engaged
in manual labour – Whether claimants' work functions executive and
managerial in nature requiring high level of intellectual thinking – Whether
dominant element of claimants' work mental effort – Whether physical effort
ancillary to mental component of work – Whether Labour Office's decision
to dismiss claimants' overtime claims ‘plainly wrong' – Whether claimants
entitled to overtime pay
Employment – Termination of employment – Termination of employment
of employee of US Embassy – Reference by Minister to Industrial Court – Whether representation raised serious questions of fact or law – Whether
restrictive doctrine of sovereign immunity applicable – Whether Industrial
Court proper forum to determine matter – Whether reference by Minister
determined question of immunity – Whether Minister's decision tainted with
illegality, irrationality or procedural impropriety – Industrial Relations Act
1967, s. 20(3)
Judicial review – Appeal against – High Court quashed Minister's decision
to refer representation to Industrial Court – Whether Minister exercised
discretion according to law – Whether Minister decided that claimant was
workman – Whether matter for Industrial Court to adjudicate – Industrial
Relations Act 1967, s. 20(1) & (3)
Reference – Reference by Minister – Termination of employment of
employee of US Embassy – Reference to Industrial Court – Whether
representation raised serious questions of fact or law – Whether restrictive
doctrine of sovereign immunity applicable – Whether Industrial Court
proper forum to determine matter – Whether reference by Minister
determined question of immunity – Whether Minister's decision tainted with
illegality, irrationality or procedural impropriety – Industrial Relations Act
1967, s. 20(3)
INDEKS PERKARA UNDANG-UNDANG PENTADBIRAN Semakan kehakiman – Semakan kehakiman untuk membatalkan hukuman
buang kerja – Pemohon bekas Pegawai Imigresen ditahan dan disiasat bawah
Akta Kesalahan Keselamatan (Langkah-langkah Khas) 2012 – Tiada sebarang
pertuduhan dikenakan atas pemohon – Pemohon diperintahkan menjalani
perintah tahanan bawah s. 19A Akta Pencegahan Jenayah 1959 selama dua
tahun – Pengerusi Lembaga Tatatertib membuat aduan terhadap pemohon
pada Lembaga Tatatertib – Pemohon dikenakan hukuman buang kerja – Pemohon merayu tetapi keputusan rayuan hanya dimaklumkan selepas tiga
tahun lapan bulan – Sama ada terdapat kegagalan mematuhi prosedur yang
ditetapkan
|
||
|
