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CASE HIGHLIGHTS |
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NIK HISHAMUDDIN NIK MANSOR v. PETROLIAM NASIONAL BERHAD Abstract – An employer has just cause for dismissal if the employee commits serious misconduct that materially prejudices the employer’s business. An employee’s repeated acts of sexual harassment and workplace bullying are deemed sufficiently serious to justify dismissal. Sexual harassment may include making inappropriate remarks, staring at colleagues inappropriately and engaging in physical contact. LABOUR LAW: Employment – Dismissal – Misconduct – Workplace bullying, harassment and sexual harassment – Remarks, acts and conducts made by employee – Employee found guilty of charges of misconduct and dismissed from service – Whether dismissal with just cause or excuse – Whether charges defective – Whether punishment of dismissal commensurate with offences – Industrial Relations Act 1967, ss. 20(3) & 30(5) SITI MARIAM ABDUL RAHMAN v. BORNEO SAMUDERA SDN BHD Abstract – (i) Constructive dismissal occurs when an employer breaches fundamental terms of the employment contract with the employee, evincing an intention not to be bound by those terms. This may result from a demotion in rank or reduction in responsibilities, even if there is no change in salary or job grade; (ii) An employee who is constructively dismissed need not delay in leaving their employment, especially when the employer fails to remedy the breaches; (iii) While the transfer of any employee is a managerial prerogative, such prerogative is neither absolute nor unfettered and cannot be exercised unreasonably and arbitrarily. LABOUR LAW: Employment – Dismissal – Constructive dismissal – Demotion – Employee transferred to another office – Allegations of demotion in rank and reduced responsibilities upon transfer – Employee’s job description and responsibilities shrunk and/or reduced – Employee performed functions, duties and job of lesser scale staff – Employee’s position at previous office still in existence and taken over by someone junior – Employee had to report to junior – Whether there was demotion – Whether there was constructive dismissal – Whether employee unduly delayed in leaving employment in timely manner – Whether employee’s outstation claims amounted to acquiescence – Industrial Relations Act 1967, ss. 20(3) & 30(5) CONTRACT: Employment contract – Terms – Breach – Constructive dismissal – Employee transferred to another office – Allegations of demotion in rank and reduced responsibilities upon transfer – Whether there was breach of fundamental/ essential terms of contract of employment – Whether breach went to root of contract – Whether employer evinced intention not to be bound by terms of employment contract – Whether there was constructive dismissal |
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LATEST CASES (ILR Issue 10 of 2024) |
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APPEAL/REVIEW UPDATES |
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Azrell Mohamad v. National Aerospace & Defence Industries Sdn Bhd [2024] 4 ILR 1 (HC) overruling Industrial Court decision in Azrell Mohamad v. National Aerospace & Defence Industries Sdn Bhd [2023] 2 ILR 387. |
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