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LATEST CASES (ILR Issue 8 of 2022) |
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SUBJECT INDEX ADMINISTRATIVE LAW Judicial review – Application for – Judicial review against decision of
statutory authority – Dismissal from service – Allegation of misconduct – Whether there was inordinate delay causing any prejudicial to applicant – Whether dismissal and termination of applicant's employment legally valid – Whether effective – Whether public authorities required to provide reasons
for dismissal – Whether decision irrational CONTRACT OF EMPLOYMENT Terms and conditions – Notice of termination – Evaluation of the contents – Effect of – Whether the claimant had voluntarily resigned from the
company – Factors to consider – Evidence adduced – Effect of – His actions
subsequent to tendering his resignation – What it had shown Terms and conditions – Resignation – Whether the claimant had voluntarily
resigned – Factors to consider – Evidence adduced – Effect of DISMISSAL Abandonment – Claimant hired as a Pilot but unable to perform during his
training sessions due to severe depression – His training sessions
discontinued and his position changed to Flight Despatcher – Whether it had
justified him walking out and claiming constructive dismissal – Factors to
consider – Evidence adduced – Effect of – Whether he had acted hastily – Company offering him alternative positions to match his skill set – Effect of – Whether it had indicated an intention not to be bound by the contract of
employment – Whether by walking out, he had effectively abandoned his
employment with the company Constructive dismissal – Claimant claiming that the company had failed to
provide him with a safe work environment – Company instructing him and
Puneet to hand over the company-owned laptops used by them to forensic
personnel for investigations, preventing them from leaving the premises and
then following them home – Reasons for the same – Whether the company's
actions had amounted to a fundamental breach of the contract of employment – Factors to consider – Evidence adduced – Effect of – Whether the claimant
had been constructively dismissed by the company – Whether dismissal
without just cause and excuse Constructive dismissal – Claimant's training sessions as a Pilot discontinued – Reasons for the same – Claimant suffering from depression, even before
taking the job with the company but failing to disclose it – What the company
could have done as against what it had actually done – What the company's
actions toward him had shown – Whether it had acted in bad faith towards
him – Whether the discontinuance of his training sessions had been a
fundamental breach of his employment contract – Factors to consider – Evidence adduced – Effect of – Whether it had justified him walking out and
claiming constructive dismissal – Whether dismissal without just cause and
excuse Constructive dismissal – Humiliation – Claimant made to sit outside in the
lounge and not given any work to do – Reasons given by the company – Whether acceptable – What the company's actions had shown – Whether
proven by him successfully – Whether his constructive dismissal claim ought
to be allowed Constructive dismissal – Job scope – Claimant's job designation changed
from Pilot to Flight Despatcher – Reasons for the same – Whether the
claimant had possessed the required skill set – Whether he had been
humiliated by COW1, thus causing him severe depression – Whether it had
justified him walking out and claiming constructive dismissal – Factors to
consider – Evidence adduced – Effect of – What he should have done instead – Company's actions towards him – What it had shown – Whether it had
amounted to a fundamental breach of his contract of employment – Whether
it had justified him walking out claiming constructive dismissal Constructive dismissal – Salary – Claimant's salary reduced during MCO
despite the Government's directive – Whether it had constituted a
fundamental breach of the contract of employment – Factors to consider – Evidence adduced – Effect of – Company's explanations – Whether
acceptable – Whether it had justified him walking out of his employment and
claiming constructive dismissal Constructive dismissal – Scope of employment – Whether the claimant had
been made to work beyond his scope of employment – Factors to consider – Evidence adduced – Evaluation of – Effect of – Position held by the
claimant as against what he had been asked to do – Effect of – Company's
explanations – Whether acceptable – Whether it had amounted to a
fundamental breach of the contract of employment – Whether it had justified
him walking out of his employment and claiming constructive dismissal Notice of termination – Claimant terminated based on the termination clause
in his contract of employment – Whether it had constituted a termination
simpliciter – Whether allowed in industrial jurisprudence – Factors to
consider – Evidence adduced – Effect of – Company's actions towards him – What it had shown – Claimant's years of service with it – What the
company should have done instead – Whether dismissal without just cause
and excuse – Industrial Relations Act 1967, s. 20 Retrenchment – Redundancy – Claimant retrenched based on the Covid-19
pandemic and the company's financial situation – Whether the company's
financial position had been affected by declining crude oil prices – Factors
to consider – Evidence adduced – Effect of – Whether the claimant's job
scope had become redundant – Company's actions – Whether it had taken
cost cutting measures to avert or minimise its reduction in workforce – Whether it had complied with the Code of Conduct for Industrial Harmony – Effect of – Whether the claimant's retrenchment had been carried out bona fide – Whether the claimant's dismissal had been carried out with just cause
and excuse Retrenchment – Redundancy – Claimant retrenched less than two months
after the first MCO – Whether it had been an affront to the notion of trust
and confidence between an employer and employee – What the company
should have done instead Retrenchment – Redundancy – Claimant selected for retrenchment – Company's actions towards him whilst in employment – Company delaying
in obtaining his employment pass and then delaying in cancelling it – What
it had shown – Whether this undue and inordinate delay had severely
jeopardised the claimant's job seeking efforts in Malaysia and caused him great hardship – Whether it had been insensitive and inconsiderate towards
his livelihood and welfare – Effect of – Whether his retrenchment had been
carried out in good faith – Whether dismissal with just cause and excuse Retrenchment – Redundancy – Claimant terminated based on his position
becoming redundant – Whether the company had genuinely offered him an
alternative position within it – Factors to consider – Evidence adduced – Effect of – Whether the offer had been given out bona fide – Terms of the
offer and its implications – Whether the claimant had been dismissed by the
company – Whether dismissal without just cause or excuse – Industrial
Relations Act 1967, ss. 20(3) & 30(5) Retrenchment – Redundancy – Claimant terminated based on the
Redundancy Agreement – Whether the Redundancy Agreement had been
entered into and signed voluntarily – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether there had been a genuine consensus
or consensus ad idem between the parties – Claimant's actions – What it had
shown – Whether the claimant had been dismissed by the company – Whether dismissal without just cause or excuse – Industrial Relations Act
1967, ss. 20(3) & 30(5) Retrenchment – Redundancy – Claimant's role rendered redundant – Whether the company had been under a duty to actively deploy him within
it to alternative positions – Factors to consider – Evidence adduced – Effect
of – Claimant's action in not applying for alternative positions on the
company's IJM – What it had indicated – Effect of – Claimant compensated
according to the Redundancy Agreement which he had voluntarily entered
into – Whether his unjust dismissal claim ought to be allowed here – Whether the company had been sufficiently supportive of his potential
searches for positions within it Retrenchment – Redundancy – Whether the claimant's position had become
redundant – Factors to consider – Evidence adduced – Effect of – Whether
the company had suffered financially due to the Covid-19 pandemic – Effect
of – Whether proven by the company Retrenchment – Redundancy – Whether the claimant's role and/or position
had become redundant – Factors to consider – Evidence adduced – Effect of – Whether the company's transformation and reorganisation exercise had
been carried out bona fide – Whether the company had exercised its
management prerogative in good faith – Factors to consider – Evidence
adduced – Effect of – Company's actions towards the claimant – What it had
shown – Whether the company had suffered a decline in its financial standing – Whether the claimant's role being made redundant had been a fair one – Whether he had been dismissed – Whether dismissal without just cause and
excuse Retrenchment – Redundancy – Whether the claimant's role and/or position
had become redundant – Whether the creation of the New Role had been
justified – Factors to consider – Evidence adduced – Effect of – Claimant
indicating an intention not to apply for it or any alternative role on the
company's IJM – Whether he had been suitable for the New Role – What
it had shown – Whether he had been aware of the global transformation – Position held by him in the company – Whether he had proven that the
company's decision had been carried out mala fide – Effect of Retrenchment – Redundancy – Whether the company had complied with the
LIFO principle – Evidence adduced – Effect of – Whether it had needed to
in this case EVIDENCE Witness – Admissibility of evidence – Claimant attempting to introduce
character evidence on the CEO to explain the claimant's alleged
misconduct(s), after the company had closed its case – Whether such
evidence had been pleaded – Whether it ought to be allowed – Factors to
consider – Evidence adduced – Effect of Witness – Character evidence – Claimant attempting to introduce evidence
on the character of the CEO, although unpleaded in her pleadings and after
the company had closed its case – Whether his bad character had been
relevant – Whether it ought to be allowed – Factors to consider – Evidence
adduced – Effect of – What the rules of pleadings had stipulated – Whether this had been the claimant's attempt to have a second bite of the cherry – What the Industrial Court's duty had been – Industrial Relations Act 1967,
s. 30(5) and Industrial Court Rules 1967 INDUSTRIAL COURT Jurisdiction – Claimant's representation to the Industrial Relations
Department filed on 25 September but stating the dismissal date as 5 October
2018 – Whether premature – Whether the Industrial Court had lacked
jurisdiction to adjudicate the matter – Factors to consider – Evidence
adduced – Effect of Jurisdiction – Claimant's testimony in Court mentioning three different
dates re his constructive dismissal – Whether there had been lack of clarity
on when he had been constructively dismissed – Factors to consider – Evidence adduced – Effect of – What his representation to the DGIR had
stated – Whether the Court had jurisdiction to determine the matter Procedure – Action – Non-payment of salary and commissions adjudicated
at Labour Court – Whether the matter had been res judicata at the Industrial
Court – Factors to consider – Evidence adduced – Effect of Remedies – Backwages – What would be a suitable amount to award the
probationer claimant – Factors to consider – Effect of – Whether post
dismissal deductions ought to be made Remedies – Reinstatement – Whether suitable to award to the claimant – Factors to consider – Effect of INDEKS PERKARA ANGKATAN TENTERA Tinggal tugas – Kesalahan – Akta Angkatan Tentera 1972, s. 54(1)(a) – Sama ada pertuduhan defektif – Sama ada perayu berniat meninggalkan
perkhidmatan – Penangkapan dan penahanan perayu – Sama ada sah – Sama ada terdapat kekhilafan undang-undang dan ketidakpatuhan prosedur – Sama
ada pendakwa membuktikan kes melampaui keraguan munasabah – Sama
ada campur tangan mahkamah rayuan wajar KETERANGAN Saksi – Sama ada syarikat telah memanggil saksi-saksi yang relevan untuk
membuktikan pertuduhan-pertuduhannya terhadap YM di perbicaraan – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya MAHKAMAH PERUSAHAAN Prosedur – Parti – Percantuman – COW1 dan COW2 telahpun selesai
memberikan keterangan dan pihak-pihak telahpun menutup kes masingmasing
untuk penghujahan – Sama ada permohonan YM untuk menambah
COW1 dan COW2 sebagai parti kepada prosiding adalah terlalu lewat – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada syarikat akan mengalami prejudis sekiranya
percantuman dibenarkan – Sama ada alasan permohonan YM adalah
pramatang – Kesannya – Sama ada YM telah membuktikan secara prima facie
bahawa kedua-dua COW1 dan COW2 wajar ditambah atau dinamakan dalam
tindakan ini di peringkat ini – Akta Perhubungan Perusahaan 1967, s. 29(a) Prosedur – Parti – Percantuman – Jurisprudens am berkaitan dengan
penambahan pihak-pihak di Mahkamah Perusahaan – Sama ada syarikat
mampu mematuhi award yang bakal diputuskan – Sama ada alasan sokongan
YM dalam affidavit beliau dan hujahannya hanya bersifat spekulatif dan
andaian semata-mata – Kesannya – Bila beliau mengetahui mengenai peranan
COW1 dan COW2 dalam syarikat – Apa yang beliau sepatutnya lakukan – Akta Perhubungan Perusahaan 1967, ss. 29(a), (b), 32(1)(a), 56(1) dan (2)(a)(i) Prosedur – Tindakan – Menghidupkan semula kes – Sama ada permohonan
YM untuk menghidupkan semula kes harus dibenarkan – Faktor-faktor yang
harus diambil – Penilaian keterangan – Kesannya – Akta Perhubungan
Perusahaan, ss. 29(fa), (g) dan 30(5) Remedi – Gaji kebelakang – YM mengaku dan menyumbang kepada salah
laku-salah laku tersebut – Jumlah tolakan sumbangan salah laku yang sesuai
dan munasabah dikenakan PEMBUANGAN KERJA Ketidakpatuhan terhadap peraturan dan polisi syarikat – Pergaduhan di
tempat kerja – Sama ada YM telah bergaduh dengan rakan sekerjanya,
Kalidass, di tempat kerja – Keterangan yang dikemukakan – Penilaian
keterangan – Kesannya – Sama ada ianya merupakan satu salah laku yang
serius – Pembelaan YM – Sama ada dapat diterima – Kedua-dua YM dan
Kalidass mengaku bersalah tetapi hanya YM dibuang kerja – Alasan syarikat
untuk tindakannya – Sama ada dapat diterima – Faktor-faktor yang harus
diambil kira – Kesannya – Apa yang syarikat seharusnya lakukan – Kesannya – Sama ada pertuduhan-pertuduhan ini berjaya dibuktikan oleh syarikat
terhadap YM – Sama ada pembuangan kerja YM telah dilakukan secara adil
dan bersebab – Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) Salah laku – Sama ada YM telah bergaduh dengan rakan sekerjanya,
Kalidass, di tempat kerja – Sama ada YM telah memulakan pertengkaran dan
pergaduhan tersebut disebabkan provokasi yang keterlaluan daripada
Kalidass – Faktor-faktor yang harus diambil kira – Keterangan yang
dikemukakan – Kesannya – Sama ada berjaya dibuktikan oleh syarikat atas
imbangan kebarangkalian UNDANG-UNDANG PENTADBIRAN Angkatan tentera – Kesalahan – Tinggal tugas – Akta Angkatan Tentera
1972, s. 54(1)(a) – Sama ada pertuduhan defektif – Sama ada perayu berniat
meninggalkan perkhidmatan – Penangkapan dan penahanan perayu – Sama
ada sah – Sama ada terdapat kekhilafan undang-undang dan ketidakpatuhan
prosedur – Sama ada pendakwa membuktikan kes melampaui keraguan
munasabah – Sama ada campur tangan mahkamah rayuan wajar |
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