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LATEST CASES (ILR Issue 6 of 2024) |
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SUBJECT INDEX CIVIL PROCEDURE Judgments and orders – Restraining order – Parties entered into amicable
settlement by recording consent award – Non-compliance of award by
company – Complaint by complainant on non-compliance of consent award
– Allegation by company that restraining order granted by High Court
restrained non-compliance application by complainant – Whether restraining
order relevant and applicable – Companies Act 2016, s. 368 COMPANY LAW Indoor management rule – Principle – Parties entered into amicable
settlement by recording consent award – Non-compliance of award by
company – Allegation by company that consent award not obtained properly
since representative acted ultra vires when agreeing to award – Whether
internal matter of company's management – Whether complainant entitled
to rely on principle under Turquand rule CONTRACT Contract of employment – Breach – Clause in agreement provides contract
'extendable for another two years on mutual agreement' – Whether failure
by any party to agree to extension would render extension of contract
impossible to implement – Whether company to write to employee at end
of term for purpose of agreed extension – Whether company's unilateral
decision not to extend employment contract contravened clause in agreement
– Whether constituted breach of contract of employment Employment contract – Acquiescence – Employee terminated from
employment due to allegations of intimidation, altercation and refusal to do
work – Allegation by employee that he did not understand terms of contract
– Length of time spent by employee working in company – Whether
employee acquiesced to contract – Whether claimant bound by terms of
employment contract Employment contract – Breach – Constructive dismissal – Applicable test
– Employee expatriated to Thailand before repatriated to Malaysia –
Employee claimed constructive dismissal – Applicable test in determining
constructive dismissal – Whether contract test or reasonable test – Difference
between tests Employment contract – Fixed term contract – Employee enjoyed automatic
renewals of employment contract without making any application of
renewals – Employer issued with letter captioned 'Expiry of Contract
Service' to employee after 32 years of service – Allegation of effluxion of
time – Whether fixed term contracts of employment genuine fixed term
contracts – Whether employee had legitimate expectation to be in
employment until retirement age – Whether employee permanent employee
– Whether permanent contract of employment disguised as fixed term
contracts of employment EVIDENCE Adverse inference – Non-calling of material witnesses – Employee charged
for misconduct of negligence in discharging duties – Failure to produce
relevant witnesses by the employers – Whether adverse inference ought to
be invoked – Evidence Act 1950, s. 114(g) INDUSTRIAL COURT Award – Non-compliance – Parties entered into amicable settlement by
recording consent award – Non-compliance of award by company – Whether
there were special circumstances for Industrial Court to vary or set aside
award – Whether consent award properly obtained – Whether financial
incapability of company proven and constituted special circumstance –
Industrial Relations Act 1967, s. 56(2)(a) JURISDICTION Proper forum – Civil court – Cause of action – Breach of contract of
employment – Whether claim relating to employment – Whether claim
under constructive dismissal or breach of contract – Whether Industrial
Court proper forum – Whether to be distinguished from case of 7-Eleven
Malaysia Sdn Bhd v. Ashvine Hari Krishnan – Whether claim for breach of
contract properly commenced in civil court LABOUR LAW Employment – Dismissal – Constructive dismissal – Applicable test –
Employee expatriated to Thailand before repatriated to Malaysia –
Employee claimed constructive dismissal – Applicable test in determining
constructive dismissal – Whether contract test or reasonable test – Difference
between tests – Industrial Relations Act 1967, s. 20 Employment – Dismissal – Employment contract – Fixed term contract –
Employee enjoyed automatic renewals of employment contract without
making any application of renewals – Employer issued with letter captioned
'Expiry of Contract Service' to employee after 32 years of service –
Allegation of effluxion of time – Whether fixed term contracts of
employment genuine fixed term contracts – Whether employee permanent
employee – Whether dismissal malicious and unlawful – Whether there were
acts of victimisation and unfair labour practice – Whether dismissal without
just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5) Employment – Dismissal – Misconduct – Absenteeism – Employee scolded
with vulgar language and threatened by superior – Employee upset with
situation and took few days of leave – Allegation by employer that leave
applications were irregular – Employee terminated from employment due to
absenteeism – Whether employee complied with procedure for applying
leave – Whether absenteeism genuine reason for termination – Whether
employee victimised – Whether dismissal actuated by mala fide, bad labour
practice and without just cause or excuse – Employment Act 1955, s. 15(2) Employment – Dismissal – Misconduct – Employee terminated from
employment due to allegations of intimidation, altercation and refusal to do
work – Whether allegations successfully established by employer – Whether
termination with just cause and excuse – Industrial Relations Act 1976, s. 20 Employment – Dismissal – Misconduct – Punishment – Proportionality –
Claimant was alleged negligent in discharging duties – Claimant dismissed
from employment – Whether dismissal with just cause or excuse Whether
punishment too severe – Whether punishment proportionate to the alleged
misconduct – Whether reinstatement proper remedy – Industrial Relations
Act 1967, ss. 20(3), 30(5), 30(6A) Employment – Employee – Independent non-executive director of
companies – Whether independent non-executive director employee –
Whether there was master-servant relationship – Whether received monthly
salary and common employees' benefits from companies – Income Tax Act
1967, ss. 2 & 4(b) Employment – Probationer – Allegation of wrongful dismissal – Probationer
served with employer before being retrenched on ground of redundancy –
Status of probationer – Whether probationer remained probationer until
retrenched – Whether there was absolute confirmation by company –
Whether there was wrongful dismissal – Industrial Relations Act 1967,
ss. 20(3) & 30(5) Employment – Resignation – Forced resignation – Hostile behaviour of
superior towards subordinate – Subordinate told by superior to tender
resignation – Superior dictated terms of resignation and threatened
subordinate's replacement and non-payment of salary – Subordinate relented
and resigned – Whether subordinate forced to resign from employment –
Whether dismissal done with just cause or excuse – Industrial Relations Act
1967, s. 20(3) Employment – Retrenchment – Allegation of wrongful dismissal –
Probationer served with employer before being retrenched on ground of
redundancy – Whether there was genuine need for re-organisation exercise
by employer – Whether genuine redundancy situation had arisen which led
to retrenchment of probationer – Whether company had complied with
accepted standards and procedures when selecting and retrenching
probationer – Whether there was wrongful dismissal – Whether employer
acted mala fide – Industrial Relations Act 1967, ss. 20(3) & 30(5) Trade union – Trade dispute – Dispute on work schedule – Employer
unilaterally changed working shift pattern, causing rest days to be reduced
from 85 days to 52 days per year – Employees/members of Union deprived
of 33 days of rest days per year – Whether in line with articles of collective
agreement – Whether breached memorandum of understanding entered into
between parties – Whether change fair, reasonable and equitable –
Employment Act 1995, ss. 7, 7A & 59 REVENUE LAW Income tax – Assessment – Notices of additional assessments raised against
taxpayer – Taxpayer independent non-executive director – Whether
taxpayer employee of companies – Whether director fees, allowances and
consultancy fees should be subject to income tax as employment income –
Whether taxpayer acted negligently and filed incorrect tax returns – Whether
assessments time-barred – Whether penalty imposed on taxpayer correct –
Income Tax Act 1967, ss. 2, 4(b) & 91(3) STATUTORY INTERPRETATION Definition – 'Employee' – Income Tax Act 1967, s. 2 – Whether
independent non-executive director of companies employee TRADE DISPUTE Collective agreement – Dispute on work schedule – Employer unilaterally
changed working shift pattern, causing rest days to be reduced from 85 days
to 52 days per year – Employees/members of Union deprived of 33 days of
rest days per year – Whether in line with articles of collective agreement –
Whether breached memorandum of understanding entered into between
parties – Whether change fair, reasonable and equitable – Employment Act
1995, ss. 7, 7A & 59 WORDS & PHRASES 'extendable for another two years on mutual agreement' – Meaning of –
Whether requires agreement of both parties – Whether failure by any party
to agree to extension would render extension of contract impossible to
implement – Whether subject to process and procedure agreed by parties INDEKS PERKARA UNDANG-UNDANG BURUH Pekerjaan – Pihak menuntut diarahkan untuk melakukan kerja-kerja tidak
berpadanan dengan jawatan – Syarikat menamatkan perkhidmatan pihak
menuntut atas alasan kemerosotan prestasi – Sama ada tindakan-tindakan
syarikat menyokong pengataan bahawa prestasi pihak menuntut merosot –
Sama ada penamatan kerja pihak menuntut adalah atas sebab dan alasan yang
munasabah – Sama ada penamatan perkhidmatan adil – Akta Perhubungan
Perusahaan 1967, s. 20(3) & 30(5) |
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