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LATEST CASES (ILR Issue 7 of 2024) |
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SUBJECT INDEX ADMINISTRATIVE LAW Judicial review – Appeal against decision of High Court – Employee
retrenched from employment – Allegation by employee that her roles,
functions and duties continued to exist – Industrial Court found that
employee's termination on ground of redundancy was fairly done and
redundancy package was reasonable – High Court quashed and set aside
award of Industrial Court, granted reinstatement and awarded employee
punitive compensation – Whether retrenchment bona fide – Whether
reinstatement ordered conducive for industrial harmony – Whether punitive
compensation awarded reasonable CIVIL PROCEDURE Pleadings – Rejoinders – Industrial Court – Employee dismissed from
employment – Employee commenced claim against employer at Industrial
Court – Employee filed two rejoinders for matter – Whether either one of
rejoinders ought to be dismissed – Differences between civil courts and
Industrial Court – Whether Industrial Court ought to forsake merits for
technicalities – Whether acceptance of both rejoinders equitable – Industrial
Relations Act 1967, s. 30(5) CONTRACT Employment contract – Breach – Constructive dismissal – Demotion and
reduction in salary – Employee found to have effected unauthorised
payments transactions – Domestic inquiry found employee guilty of charges
– Employee demoted and monthly salary was reduced – Whether there was
constructive dismissal – Whether there was fundamental breach of
employment contract entitling employee to claim constructive dismissal EVIDENCE ACT Adverse inference – Documentary evidence – Employer facing deteriorating
financial performance – Employees retrenched due to redundancy –
Employer failed to produce full set of accounts in court – Whether
employees denied rights to cross examine employer's witnesses – Whether
court denied opportunity to asses relevant documents – Whether adverse
inference ought to be drawn against employer – Evidence Act 1950, s. 114(g) INDUSTRIAL COURT Remedies – Powers – Employee dismissed from employment – Employer's
offer of reinstatement rejected by employee – Whether rejection of
reinstatement nullified proceedings at Industrial Court – Whether suit ought
to be dismissed – Power of Industrial Court to hear proceedings where
remedy sought is not reinstatement – Whether remedy limited to only
reinstatement – Industrial Relations Act 1967, s. 30(6) – Employment Act 1955 LABOUR LAW Dismissal – Retrenchment – Redundancy – Employer retrenched employee
considering uncertain market conditions – Whether dismissal done with just
cause or excuse – Whether retrenched – Whether circumstances existed
which justified the termination exercise undertaken – Whether retrenchment
exercise bona fide and fair labour practice – Whether reinstatement proper
remedy – Industrial Relations Act 1967, ss. 20(3) & 30(5) Employment – Dismissal – Constructive dismissal – Demotion and
reduction in salary – Employee found to have effected unauthorised
payments transactions – Domestic inquiry found employee guilty of charges
– Employee demoted and monthly salary was reduced – Whether there was
constructive dismissal – Whether there was fundamental breach of
employment contract entitling employee to claim constructive dismissal –
Whether constructive dismissal with just cause or excuse – Whether there
was delay by employee in claiming for constructive dismissal – Whether
employee deemed to have accepted purported breach by employer –
Industrial Relations Act 1967, ss. 20(3) & 30(5) Employment – Dismissal – Employee dismissed from employment due to
allegations of poor performance and tardiness – Dismissal without prior
notice or written warning – Letter of termination issued by employer did not
state grounds of dismissal – Whether employer abide by legal precepts of
natural justice and fairness in dismissing employer – Whether employer had
proven case of poor performance and tardiness – Whether employee
dismissed without just cause or excuse – Whether employee contributed to
dismissal – Whether reinstatement to former position in interest of industrial
harmony – Industrial Relations Act 1967, ss. 20(3) & 30(6) Employment – Dismissal – Misconduct – Employee committed series of
breaches and acts of misconduct – Employee continued to commit breaches
and acts of misconduct with no signs of improvement despite being issued
with warnings and show cause letters – Employee dismissed from
employment – Whether punishment of dismissal proportionate to series of
breaches and serious acts of misconduct – Whether dismissal with just cause
or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5) Employment – Dismissal – Misconduct – Employee dismissed from
employment due to three charges of misconduct – Whether acts of
misconduct proven – Whether there was condonation by employer –
Whether punishment of dismissal proportionate to gravity of misconducts –
Industrial Relations Act 1967, ss. 20(3) & 30(5) Employment – Dismissal – Misconduct – Employer involved in business of
developing, owning, operating and maintaining gas distribution pipeline
network – Employer had strict policy on occupational safety, health and
environment issues – Employee served as Project Manager – Fatal accident
at project site – Employee concealed information regarding accident – Breach
of employer's policy and procedure and duties owed to employer –
Employee terminated from employment due to misconduct –
Proportionality of punishment – Whether punishment of dismissal
proportionate to gravity of misconduct – Industrial Relations Act 1967,
s. 20(3) – Occupational Safety and Health Act 1994, ss. 32(1) & 51 Employment – Dismissal – Misconduct – Punishment – Proportionality –
Claimant was caught sleeping during working hours on a lift truck – Claimant
disregarded safety during working hours – Claimant dismissed from
employment – Whether dismissal with just cause or excuse – Whether
punishment too severe – Whether punishment proportionate to alleged
misconduct – Industrial Relations Act 1967, ss. 20(3) & 30(5) Employment – Dismissal – Poor performance – Employee dismissed from
employment due to poor performance – Whether poor performance
established – Whether employee warned about poor performance – Whether
employee given sufficient opportunity to improve – Whether employee
failed to sufficiently improve performance – Whether dismissal with just
cause and excuse – Industrial Relations Act 1967, s. 20(3) Employment – Dismissal – Retrenchment – Probationer retrenched from
employment due to economic downturn – Whether actual reason behind
dismissal – Whether probationer terminated with just cause and excuse –
Industrial Relations Act 1967, ss. 20(3) & 30(5) Employment – Dismissal – Retrenchment – Redundancy – Employee
retrenched from employment – Allegation by employee that her roles,
functions and duties continued to exist – Whether retrenchment bona fide –
Whether there was redundancy – Whether overall business of employer
improving and expanding – Whether there was proof of cost-saving from
restructuring exercise – Industrial Relations Act 1967, s. 30(5A) Employment – Dismissal – Retrenchment – Redundancy – Employer facing
deteriorating financial performance – Claimants identified as employees with
highest salaries – Claimants informed that their roles had been made
redundant – Cost efficiency cited as reason for termination of claimant's
services – Whether actual reason – Whether claimants dismissed from
employment due to high salaries – Principles governing retrenchment –
Whether there was redundancy warranting retrenchment – Whether
retrenchment exercise in breach of Code of Conduct for Industrial Harmony
– Whether employer complied with last in first out (LIFO) principle –
Industrial Relations Act 1967, ss. 20(3) & 30 Employment – Employer – Statutory contributions – Probationer served
with employer as General Clerk – Failure of employer to make statutory
contributions for Employees' Provident Fund (EPF) and Social Security
Organization (SOCSO) – Rights of probationer Employment – Safety – Working environment and conditions – Probationer
served with employer as General Clerk – Probationer subjected to unsafe and
unreasonable working conditions – Probationer required to work at
construction site with no proper office, workstation and basic facilities –
Occupational Safety and Health Act 1994, s. 15(2)(e) INDEKS PERKARA KONTRAK Kontrak perkhidmatan – Kepenyalahan undang-undang – Penamatan –
Klausa kontrak perkhidmatan mensyaratkan penamatan hanya boleh
dilakukan selepas pihak-pihak memberi notis dua bulan secara bertulis atau
membuat bayaran dua bulan gaji pekerja dan pekerja membayar majikan
RM10,000 sebagai kos 'stock-take' – Sama ada klausa bertentangan dengan
ss. 7, 7A dan 7B Akta Kerja 1955 – Sama ada kontrak perkhidmatan tidak
sah dan terbatal menurut s. 24(a), (b) dan (e) Akta Kontrak 1950 PROSEDUR SIVIL Pliding – Tuntutan balas – Elaun lebih masa, bayaran kerana bekerja semasa
cuti am dan umum – Sama ada tuntutan dibuktikan secara spesifik dan
konklusif – Sama ada kad perakam waktu yang dikemukakan lengkap |
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