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CASE HIGHLIGHTS |
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JESWINDER KAUR HARJAN SINGH v. MALAYSIA AIRLINES BHD Abstract – The burden of proof lies on an employer to prove its case on a balance of probabilities that an employee was dismissed for just cause or excuse. In this case, the non-calling of the material witness was detrimental to the employer’s case as such non-calling failed to prove the money trail that formed the basis of the charge against the employee, ie, assisting in selling entitled slots to third party without proper authorisation or justification and receiving payment from the complainant. LABOUR LAW: 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) LABOUR LAW: 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) EVIDENCE: 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) ISMAIL MAT PETAH v. REZ CAPITAL SDN BHD Abstract – Payment of salary is a fundamental term in any employment contract as employees work in return for payment of salary. When there is a breach of such a term, the employee is justified in considering himself as constructively dismissed from his employment. LABOUR LAW: 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) CONTRACT: 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 |
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LATEST CASES (ILR Issue 2 of 2024) |
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JUDICIAL QUOTES |
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"In this case, operating both the Articulated Dump Truck (ADT) and excavator undoubtedly necessitated knowledge, understanding, and skill in manipulating the control systems of these machineries, involving continuous manual engagement of hands and legs. The tasks, akin to driving an ordinary car but more intricate, necessitated specialised training and perhaps required the possession of a license. The knowledge, understanding, and skill or expertise in handling the control systems of these machineries, while crucial, remains secondary to the core aspect of continuous manual labour – using hands and legs to operate these machineries. This manual dexterity does not primarily rely on highly scientific knowledge but emphasises practical skill and physical engagement. There are no innovation or creation of the operators of their own by using these machineries. Applying the tests or criteria established in the decided cases as mentioned, this court finds that the respondents engaged in “manual labour” according to the definition in s. 2(a) of the Schedule to SLO, despite the skill required for operating or driving these machineries in their employment." - Per Wong Siong Tung J in Sri Datai Mining Sdn Bhd v. Gelinggas James Watt & Ors [2024] 1 ILR 237 |
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