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LATEST CASES (ILR Issue 2 of 2024) |
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SUBJECT INDEX ARBITRATION Arbitration clause – Agreement – Claimant appointed by company as
Financial Consultant pursuant to consultancy agreement – Agreement
contained clause on arbitration – Parties mutually agreed for dispute
resolution to be carried out through arbitration process – Claimant's services
terminated by company – Claimant brought claim to Industrial Court –
Whether Industrial Court seized with jurisdiction to entertain claim –
Whether claimant obliged to refer dispute to arbitrator CONTRACT Agreement – Consultancy agreement – Intention of parties – Claimant
appointed by company as Financial Consultant pursuant to consultancy
agreement – Claimant's services terminated by company – Whether parties
intended for agreement to be contract of employment – Whether there was
employer-employee relationship between parties Employment contract – Breach – Salary – Non-payment of salary for seven
months – Whether claimant employed by company during said seven months
– Whether fundamental breach of terms and conditions of employment
contract – Whether claimant entitled to plead constructive dismissal Employment contract – Breach – Salary – Non-payment of salary – Whether
fundamental breach of terms and conditions of employment contract –
Whether employee entitled to plead constructive dismissal Employment contract – Terms – Breach – Transfer – Employer's sales of
development project discouraging despite aggressive marketing campaign –
Claimant transferred and relocated to another location to salvage project –
Whether there was breach of fundamental terms of employment contract –
Whether employer evinced intention to no longer be bound by terms of
employment contract – Whether transfer amounted to constructive dismissal EVIDENCE Admissibility – Bad character evidence – Constructive dismissal –
Allegations that Group Chief Executive Officer ('GCEO') used abusive and
foul language to claimant in attendance of others in meeting – Claimant
attempted to adduce video and transcript of GCEO being abusive – Whether
video and transcript admissible – Whether claimant attempting to adduce
bad character evidence – Whether relevant to proceedings – Whether
evidence on GCEO's character or behaviour pleaded – Whether claimant
attended or was involved in meeting recorded in video and transcript Adverse inference – Non-calling of material witnesses – Employee charged
for misconduct of attempting to cheat company by submitting false
entertainment claims – Allegation by employee that he took company's
customers out – Employee failed to call relevant customers to testify -
Whether adverse inference ought to be invoked – Evidence Act 1950, ss. 103
& 114(g) Adverse inference – Non-production of material witness – Labour law –
Employee dismissed from employment for alleged misconduct of assisting in
selling entitled slots to third party without proper authorisation or
justification and receiving payment – Bank account owner that allegedly
made transaction to pay into employee's account not called as witness –
Whether adverse inference ought to be invoked – Evidence Act 1950,
s. 114(g) INDUSTRIAL COURT Jurisdiction – Claimant appointed by company as Financial Consultant
pursuant to consultancy agreement – Claimant's services terminated by
company – Claimant brought claim to Industrial Court – Whether Industrial
Court seized with jurisdiction to entertain claim – Whether claimant
'workman' – Industrial Relations Act 1967, ss. 2 & 20(1) LABOUR LAW Appeal – Appeal against decision of Senior Assistant Director of Labour –
Claimants' employment contract not renewed and terminated – Claim for
various sums including overtime payment and termination and layoff
benefits – Whether claimants fell within definition of 'employee' under
Labour Ordinance (Sarawak) (Cap. 76) ('SLO') – Whether claimants engaged in 'manual labour' – Whether SLO applicable – Whether claimant eligible
for overtime pay – Whether working hours exceeded statutory limit specified
by SLO for overtime pay – Whether claimants entitled to termination and
layoff benefits – Whether employment termination justified due to
misconduct on claimants' part Dismissal – Constructive dismissal – Transfer – Employer's sales of
development project discouraging despite aggressive marketing campaign –
Claimant transferred and relocated to another location to salvage project –
Whether transfer amounted to constructive dismissal – Whether employer's
decision to transfer claimant actuated by mala fide – Whether there was
victimisation – Whether transfer lawful – Whether constructive dismissal
established – Whether claimant left employment on own volition Dismissal – Unfair dismissal – Poor performance and work attitude issues
and acts of misconduct – Employee's behaviour disruptive to harmonious
working environment and relationship between employees – Acts
inconsistent with fulfilment of express and/or implied terms and conditions
of services as employee – Employee dismissed from employment – Whether
there was unfair dismissal – Whether there was biasness in termination of
employee's services – Whether employee given warnings and opportunity to
improve prior to termination – Whether employer had valid and just cause
in exercising right to dismiss employee – Whether dismissal fair and
reasonable – Whether employer acted in accordance with fair labour practice
and/or employment law – Industrial Relations Act 1967, ss. 20(3) & 30(5) Employment – Dismissal – Constructive dismissal – Non-payment of salary
for seven months – Whether claimant employed by company during said
seven months – Whether there was constructive dismissal – Whether
employer, by conduct, had breached term of contract of employment –
Whether employer evinced intention not to be bound by employment
contract – Whether fundamental breach that went to root or foundation of
employment contract – Whether claimant left employment in response to
breach – Industrial Relations Act, ss. 20(3), 29(d) & 30(5) Employment – Dismissal – Constructive dismissal – Non-payment of salary
– Whether fundamental breach of terms and conditions of employment
contract, entitling employee to plead constructive dismissal – Industrial
Relations Act 1967, ss. 20(3) & 30(6A) Employment – Dismissal – Misconduct – Employee served as Accounts
Supervisor – Employee found guilty of receiving payments through accounts
registered under different persons on various dates – Payments recorded
under names of projects carried out by employer – Employee dismissed from
employment – Whether domestic inquiry conducted consistent with
principles of natural justice – Whether there was condonation by company
– Whether employee merely acting under instructions – Whether there were
double standards by company as no disciplinary action was taken against
other employees who committed same misconduct – Whether punishment
meted out harsh Employment – Dismissal – Misconduct – Insubordination - Noncompliance
of employer's policy – Claimant served as Cabin Crew –
Employer's compulsory immunisation policy against COVID-19 – Claimant
refused to obtain vaccine – Whether claimant proffered solid medical reasons
to justify refusal – Whether claimant's act of refusal to comply with
immunisation policy amounted to serious misconduct of insubordination –
Whether claimant victimised and discriminated – Whether dismissal with
just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5) Employment – Misconduct – Dismissal – Claim for reinstatement –
Employee charged for assisting in selling entitled slots to third party without
proper authorisation or justification and receiving payment – Whether charge
of misconduct substantiated and supported by evidence – Whether
reinstatement proper remedy – Industrial Relations Act 1967, ss. 20(3)
& 30(5) Employment – Misconduct – Domestic inquiry – Employee dismissed from
employment for alleged misconduct of assisting in selling entitled slots to
third party without proper authorisation or justification and receiving
payment – No domestic inquiry carried out – Whether failure to have
domestic inquiry rendered dismissal invalid – Industrial Relations Act 1967,
ss. 20(3) & 30(5) Employment – Statutory duty – Employer part of Malaysian Aviation
Group – Employer's duty to provide safe working environment to
employees, public and nation – Employer's compulsory immunisation
policy against COVID-19 – Whether employee had right to refuse
vaccination/immunisation against COVID-19 – Occupational Safety and
Health Act 1994, s. 27(1)(a)
Mazuna Begum Kadir Mira v. Malaysian Airlines Bhd
Augustine Anthony [2024] 1 ILR 389 Misconduct – Cheating – Submitting false entertainment claims – Employee
found guilty at end of domestic inquiry – Whether misconduct established
– Whether misconduct constituted just cause or excuse for dismissal –
Industrial Relations Act 1967, ss. 20(3) & 30(5) Retrenchment – Redundancy – Allegation by employer that company had
not been profitable for several years and closure of office was measure
undertaken to save cost – Whether there was redundancy – Whether there
existed circumstances which justified retrenchment exercise undertaken by
employer – Whether employer acted bona fide when retrenching claimants
– Industrial Relations Act 1967, ss. 20(3) & 30(5), (5A), (6A) Wages – Payment of overtime – Claimants' employment contract not
renewed and terminated – Claim for various sums including overtime
payment and termination and layoff benefits – Computation of working
hours – Whether exceeded statutory limit – Whether claimants working
overtime – Whether payment of overtime owed to claimants constituted
wages that must be paid in legal tender – Whether allowances received by
claimants negated their entitlement to and from receiving overtime pay –
Labour Ordinance (Sarawak) (Cap. 76), ss. 105A & 108 STATUTORY INTERPRETATION Definition – 'employee' – Employees' employment contract not renewed
and terminated – Claim for various sums including overtime payment and
termination and layoff benefits – Whether claimants fell within definition of
'employee' – Whether claimants engaged in 'manual labour' – Labour
Ordinance (Sarawak) (Cap. 76), ss. 2 Definition – 'workman' – Industrial Relations Act 1967, s. 2 – Claimant
appointed by company as Financial Consultant pursuant to consultancy
agreement – Claimant's services terminated by company - Whether claimant
'workman' – Whether there was dismissal INDEKS PERKARA UNDANG-UNDANG BURUH Pekerjaan – Penamatan – Mutu dan prestasi kerja – Syarikat berpendapat
mutu kerja pihak menuntut tidak memuaskan – Pihak menuntut diletakkan
bawah performance improvement plan dan penilaian – Syarikat masih tidak
berpuas hati lalu menamatkan perkhidmatan pihak menuntut – Sama ada
penilaian yang diputuskan oleh syarikat betul dan berjustifikasi – Sama ada
menurut polisi syarikat – Sama ada penamatan perkhidmatan pihak
menuntut dengan niat mala fide, tidak adil, tidak sah dan/atau tidak menepati
prinsip undang-undang perusahaan – Sama ada pengembalian semula ke
jawatan remedi yang sesuai |
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