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LATEST CASES (ILR Issue 5 of 2024) |
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SUBJECT INDEX ADMINISTRATIVE LAW Judicial review – Appeal – Challenge against decision of Director General
of Industrial Relations ('DGIR') – Workman found guilty of misconduct and
dismissed by employer – Workman made representations to DGIR –
Employer agreed to reinstate workman to former position subject to certain
terms – Workman rejected reinstatement – DGIR closed representations –
Whether DGIR correct in closing workman's representations without
referring same to Industrial Court – Whether mandatory for DGIR to refer
representations of workman to Industrial Court for award – Industrial
Relations Act 1967, s. 20(1), (3) – Industrial Relations (Amendment) Act
2020 – Rules of Court 2012, O. 53 CIVIL PROCEDURE Trial – Ex parte hearing – Claim for reinstatement – Claim by employee
against employer – Employer did not attend hearing to answer to employee's
claim and did not file statement in reply – Whether hearing ought to proceed
ex parte – Industrial Relations Act1967, s. 29(d) COMPANY LAW Corporate veil – Separate entities – Lifting of veil among group enterprise
– Whether veil of incorporation could be disregarded – One business
enterprise EVIDENCE Admissibility – Audio recording – Secret recording – Employer secretly
recorded meeting with employee – Employer made several accusations
during meeting and employee admitted to accusations – Whether audio
recording could be admitted into evidence in dismissal cases to determine
fact in dispute even if illegally obtained – Industrial Relations Act 1967,
ss. 20(3) & 30(5) Adverse inference – Non-calling of material witness – Sexual harassment at
workplace – Employee found guilty of two allegations of misconduct relating
to sexual harassment – Employee touched complainant's waist and shoulder
– Employee dismissed from employment – Complainant did not testify in
court – Whether complainant's evidence sufficiently captured in complaint
lodged, investigation statements and testimony during domestic inquiry –
Whether adverse inference ought to be invoked against employer for
non-attendance of complainant – Evidence Act 1950, s. 114(g) Judicial notice – Foul and derogatory words – 'pukimak hang' – Highly
obscene words in Malay language – Evidence Act 1950, s. 56 INDUSTRIAL COURT Jurisdiction – Termination from employment – Representation referred to
Industrial Court – Employee no longer wanted reinstatement by time of
hearing as he was gainfully employed in another company – Industrial Court
proceeded to inquire into reference and award damages or relief – Whether
Industrial Court seized with jurisdiction – Ministerial reference – Industrial Relations Act 1967, s. 20(3) LABOUR LAW Award – Appeal – Appeal against order of Director General of Labour –
Employees complained against employer at Labour Office – Employer
raised issues at Labour Office – Labour Office formulated own issues in
grounds of judgment – Allegation that issues raised by employer at Labour
Office not decided by Labour Office as Labour Office only responded to
own-formulated issues in grounds of judgment – Whether there was
settlement between parties – Whether there was shortfall of minimum wages
– Whether claim time-barred – Employment Act 1955, ss. 2, 33 & 69(1)(a)
– Employment (Termination and Lay-off Benefits) Regulations 1980, reg. 5 Dismissal – Representation – Whether representation filed out of time –
Whether there was extension of time given by Government of Malaysia –
Temporary Measure for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020, s. 40 Domestic inquiry – Findings – Employee found guilty of two allegations of
misconduct relating to sexual harassment – Employee touched complainant's
waist and shoulder – Employee dismissed from employment – Whether
punishment of termination severe – Industrial Relations Act 1967, ss. 20(3)
& 30(5) Employment – Dismissal – Misconduct – Conflict of interest – Failure of
employee to disclose that he was director of another company – Employee
performed service which legitimately belonged to employer – Employee
carried out services in direct competition with employer – Whether
misconduct proven – Whether dismissal with just cause or excuse –
Industrial Relations Act 1967, ss. 20(3) & 30(5) Employment – Dismissal – Misconduct – Contributory misconduct –
Insubordination – Uttering foul language to and physically pushing higher-ranking
officer – Employee dismissed from employment – Whether serious
misconduct that warranted dismissal – Whether punishment of dismissal too
harsh and severe – Whether dismissal with just cause or excuse – Whether
reinstatement appropriate remedy – Industrial Relations Act 1967, ss. 20(3)
& 30(5) Employment – Dismissal – Misconduct – Punishment – Proportionality –
Employee disregarded the employer's directions via the Board of Directors
to provide updates – Claimant dismissed from employment – Whether
alleged misconduct established – Whether there was unfair dismissal –
Whether punishment of dismissal proportionate to gravity of alleged
misconduct – Whether dismissal with just cause or excuse – Industrial
Relations Act 1967, ss. 20(3) & 30(5) Employment – Dismissal – Misconduct – Sexual harassment – Employee
found guilty of two allegations of misconduct relating to sexual harassment
– Employee touched complainant's waist and shoulder – Employee
dismissed from employment – Whether there was physical harassment –
Whether touch accidental and spontaneous – Whether findings of domestic
inquiry perverse and devoid of legal and factual basis – Whether punishment
of termination severe – Industrial Relations Act 1967, ss. 20(3) & 30(5) Employment – Dismissal – Probationer – Poor performance – Probationer
placed under probation for role of Assistant Manager in Group Human
Capital Department – Probationer not confirmed in employment due
allegations of poor performance and below average rating – Whether
probationer had performed below expectation – Whether there was review
or appraisal of probationer's performance – Whether probationer informed
of areas of weakness – Whether properly documented – Whether there was
unfair labour practice and victimisation – Whether employer acted in bad
faith – Industrial Relations Act 1967, ss. 20(3) & 30 (5), (6A) Employment – Dismissal – Probationer – Probationer placed under
probation for role of Assistant Manager in Group Human Capital
Department – Probationer persistently raised matters of indiscipline of
employees – Probationer transferred to Group Chief Operating Officer's
office with no reasons proffered – Probationer not given any job description
and left with little or no work to be carried out – Probationer not confirmed
in employment due allegations of poor performance and below average rating
– Whether dismissal with just cause or excuse – Industrial Relations Act
1967, ss. 20(3) & 30 (5), (6A) Employment – Dismissal – Reinstatement – Rejection of reinstatement –
Workman found guilty of misconduct and dismissed by employer –
Workman made representations to Director General of Industrial Relations ('DGIR') – Employer agreed to reinstate workman to former position subject
to certain terms – Workman rejected reinstatement – DGIR closed
representations – Whether DGIR correct in closing workman's
representations without referring same to Industrial Court – Whether
mandatory for DGIR to refer representations of workman to Industrial Court
for award – Industrial Relations Act 1967, s. 20(1), (3) – Industrial Relations (Amendment) Act 2020 Employment – Dismissal – Unfair dismissal – Claim – Employee admitted
to hospital due to acute ischemic stroke, hypertension, and diabetes –
Employee utilised medical leaves – Employee medically unfit to resume
work duties – Employee applied for invalidity pension scheme after
resignation – Whether there was unfair dismissal – Industrial Relations Act,
ss. 20(3) & 30(5) Employment – Termination – Retrenchment – Employee retrenched from
employment – Letter of termination stated that employee retrenched due to
prevailing economic recession and prolonged period of poor sales revenue –
Employer cited unsatisfactory performance, conflict of interest and sexual
harassment as reasons for termination in court – Whether employer could
rely on reasons not stated in letter of termination – Whether retrenchment
bona fide – Whether termination with just cause or excuse Employment – Unlawful dismissal – Claimant worked for Malaysian
company before relocating to related-company in China – Claimant entered
into contract of employment with company in China – Claimant told by
company in China that contract of employment not extended – Claimant
signed termination agreement and returned to Malaysia and reported for
work with Malaysian employer – Claimant told that there was no available
position and employment with Malaysian company ceased when he entered
into contract of employment with company in China – Whether there was
dismissal – Industrial Relations Act 1967, s. 20(3) Retrenchment – Redundancy – Employee notified by employer of its
intention to sell off part of business – Employee informed that his
employment would not be affected and his work scope would be discussed
– Employee later told that his position was to be made redundant –
Employee issued with notice of retrenchment emphasising on his ineligibility
for any retrenchment payments under labour law – Whether employer's
action and notice of retrenchment lawful – Whether employee wrongfully
and/or unlawfully terminated – Whether retrenchment bona fide – Industrial
Relations Act 1967, ss. 20(3), 29(d) & 30(5) INDEKS PERKARA UNDANG-UNDANG BURUH Pekerjaan – Penamatan – Pekerja berkhidmat sebagai Pengawal Keselamatan
– Majikan menamatkan perkhidmatan pekerja tanpa memberi alasan kukuh
– Sama ada pemecatan kerja pihak menuntut adalah dengan sebab atau alasan
yang adil – Akta Perhubungan Perusahaan 1967, ss. 20(3) & 29 |
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