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CASE HIGHLIGHTS |
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MOHD SHAHRIL HUSSIN v. MAASDOTS SDN BHD Abstract – An employer’s unilateral and arbitrary imposition of a mutual separation agreement on an employee, without prior genuine discussion or agreement on its terms, particularly regarding compensation, may constitute a fundamental breach of the employment contract. If the employee can demonstrate that the employer’s calculate move was intended to frustrate him and damage the relationship of trust and confidence, he may be entitled to claim constructive dismissal. LABOUR LAW: Employment – Dismissal – Constructive dismissal – Mutual separation agreement (‘MSA’) – Employer and employee allegedly discussed on MSA – Whether there was discussion on MSA – Whether there was agreement concluded – Whether there was unilateral and arbitrary act of imposing MSA on employee – Whether employer’s actions intended to frustrate employee and pressure him into leaving company – Whether there was constructive dismissal – Whether employee dismissed with just cause or excuse – Industrial Relations Act 1967, s. 20(3) CONTRACT: Employment contract – Breach – Constructive dismissal – Mutual separation agreement (‘MSA’) – Employer and employee allegedly discussed on MSA – Whether there was agreement concluded – Whether there was unilateral and arbitrary act of imposing MSA on employee – Whether amounted to fundamental breach of employment contract – Whether there was constructive dismissal – Whether employee entitled to repudiate employment contract ZARINANI SHAHABUDIN v. IFIBER TELCO SDN BHD Abstract – Habitual failure to adhere to basic employment duties, such as punctuality, including clocking in and out, and excessive absenteeism, even within leave entitlements if deemed unreasonable for the duration of employment, may constitute serious misconduct warranting dismissal, especially when warnings are ignored and no reasonable justification is provided. LABOUR LAW: Employment – Probation – Dismissal – Misconduct – Punctuality – Failure to clock in and out of work punctually – Probationer dismissed from employment and not confirmed – Whether failure to clock in and out of work amounted to absenteeism – Whether there was warning, issuance of show cause letter and domestic inquiry – Whether probationer dismissed with just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5) LABOUR LAW: Employment – Probation – Dismissal – Misconduct – Poor performance – Constant tardiness and absenteeism and attitude issues – Probationer dismissed from employment and not confirmed – Whether there was serious dereliction of duty – Whether there was warning, issuance of show cause letter and domestic inquiry – Whether probationer dismissed with just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5) |
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LATEST CASES (ILR Issue 4 of 2025) |
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JUDICIAL QUOTES |
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"Looking at the case, the relationship existed between the parties in this case is not between the respondent as the international organisation and Malaysia as the host country. The legal dispute is more towards the capacity of the respondent as an employer and the claimant as an employee. In fact, under the employment agreement, the rights of the claimant to have her grievances be heard are to be governed and construed in accordance with the laws of Malaysia, which is provided by cl. 14 of the employment agreement. Therefore, the relevant law that is applicable here is domestic law, which governs the rights of the claimant, if any, from any breach of her rights under the employment agreement. Hence, it is the duty of the court to give effect to the employment agreement entered by the parties since the respondent has agreed to submit its rights in accordance with the laws of Malaysia. Under the Malaysian law, this dispute can only be heard in the Industrial Court, as such rights are not available in ordinary civil courts. In the circumstances, the court finds that since the nature of the claim is related to personal rights under the employment agreement per se, the court has the jurisdiction to hear the case brought by the claimant unless such a right is explicitly curtailed by Parliament in the IFSB Act or by other statutory laws. Hence, it is the considered view of the court, based on the fact of the case, that the phrase ‘other legal process’ does not cover the proceedings in the Industrial Court. Therefore, the claimant has correctly filed her case in this court, as there are no immunities and privileges that could be relied upon by the respondent. In our case, the respondent has failed to justify the existence of the ground that it is necessary for the fulfillment of its purposes, for the preservation of its independence and neutrality from control by interference from the host state and for the effective and uninterrupted exercise of its multinational functions through its representatives: see Mukoro (supra). And, furthermore, the respondent has also failed to establish the concept of ‘functionality necessity’ as decided in Asian International Arbitration Centre (supra)" - Per Ahmad Zakhi Mohd Daud in Nirvana Jalil Ghani v. Islamic Financial Services Board [2025] 2 ILR 183 |
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