LATEST CASES (ILR Issue 1 of 2018)

SUBJECT INDEX

CONTRACT OF EMPLOYMENT

Notice of termination - Company issuing the claimant a backdated termination letter - Whether it had taken the law into its own hands by doing so - Factors to consider - Effect of - Whether the company's actions of failing to pay him half pay, during his period of suspension, despite agreeing to pay him earlier, had tantamounted to an unfair labour practice
Mohd Shafiq Helmi Sohari v. Next Logistics Sdn Bhd
(Anna Ng Fui Choo) [2018] 1 ILR 155

DISMISSAL

Absenteeism - Company exercising its management prerogative and terminating the claimant - Whether the management prerogative had been exercised fairly - Factors to consider - Effect of - Whether the company's actions of dismissing him had been a fair labour practice - Whether his past misconduct could be used against him - Whether dismissal with just cause and excuse
Simon Anthonysamy v. Royal Selangor Club
(Sarojini Kandasamy) [2018] 1 ILR 109

Absenteeism - Company terminating the claimant based on s. 15(2) of the Employment Act 1955 - Whether the claimant had been subject to it - Evidence adduced - Effect of - Whether the company's termination of the claimant had been riddled with procedural improprieties - Factors to consider - Effect of - Employment Act 1955, s. 15(2)
Simon Anthonysamy v. Royal Selangor Club
(Sarojini Kandasamy) [2018] 1 ILR 109

Absenteeism - Whether the claimant had been absent without leave on the material days - Evidence adduced - Effect of - Claimant's explanations - Whether acceptable - Company's actions and attitude towards him - Whether reasonable - Factors to consider - What it should have done - Whether the claimant had been absent from work without leave - Whether the charge had been proven by the company - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Simon Anthonysamy v. Royal Selangor Club
(Sarojini Kandasamy) [2018] 1 ILR 109

Breach of company rules and policies - Negligence - Whether the claimant had allowed the company's competitor to enter the warehouse without permission - Factors to consider - Evidence adduced - Evaluation of - Effect of - Whether the company had proven the charge on a balance of probability - What its actions had shown - Claimant's defence - Whether could be accepted - Whether the claimant's dismissal had been carried out with just cause and excuse
Mohd Shafiq Helmi Sohari v. Next Logistics Sdn Bhd
(Anna Ng Fui Choo) [2018] 1 ILR 155

Breach of company rules and policies - Negligence - Whether the claimant had failed to follow the company's procedures by allowing the company's competitor to enter the warehouse without permission - Evidence adduced - Factors to consider - Effect of - Whether there had been any written procedures in place - Whether the company had succeeded in proving these charges against him - Whether dismissal without just cause or excuse
Mohd Shafiq Helmi Sohari v. Next Logistics Sdn Bhd
(Anna Ng Fui Choo) [2018] 1 ILR 155

Constructive dismissal - Change in job scope - Claimant instructed to do work for COW2's other businesses - Whether it had been part of her job scope - Perusal of the contract of employment - Effect of - Claimant doing work for other businesses previously - Whether it had amounted to acquiescence - What she should have done - Whether the respondent company's actions had been a fundamental breach that had gone to the root of the contract of employment - Whether the claimant had been constructively dismissed
Nadia Abdul Jamil v. Samadhi Retreats Sdn Bhd
(Tan Ghee Phaik) [2018] 1 ILR 36

Constructive dismissal - Change in job scope - Whether the claimant by her actions had elected to affirm the contract of employment - Factors to consider - Claimant subsequently walking out of her employment - Whether her actions had amounted to her abandoning her job - Factors to consider - Effect of - Whether the respondent company by its actions had repudiated the contract of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Nadia Abdul Jamil v. Samadhi Retreats Sdn Bhd
(Tan Ghee Phaik) [2018] 1 ILR 36

Constructive dismissal - Hours of work - Claimant accused of allowing diesel to be pilfered from a tanker and suspended from duty - Whether proven by the respondent company - Factors to consider - Evidence adduced - Evaluation of - Whether the respondent company had conducted a thorough investigation before suspending the claimant from his duties - Effect of - What the respondent company should have done - Whether its actions had been a fundamental breach which had gone to the root of his contract of employment - Whether the claimant had been constructively dismissed - Whether dismissal without just cause and excuse
M Sivalingam Muniandy v. Lord WBK Haulage Sdn Bhd
(Domnic Selvam Gnanapragasam) [2018] 1 ILR 82

Constructive dismissal - Hours of work - Respondent company suspending the claimant and forgetting about him - Whether the claimant had succeeded in proving constructive dismissal - Factors to consider - Evidence adduced - Effect of
M Sivalingam Muniandy v. Lord WBK Haulage Sdn Bhd
(Domnic Selvam Gnanapragasam) [2018] 1 ILR 82

Constructive dismissal - Status - Claimant suspended for an indefinite period of time pending the outcome of the DI - Claimant given an increment in the meantime - Whether it had amounted to a condonation by the company of her alleged misconduct - Factors to consider - Company's reasons for giving her the increment - Whether acceptable
Teh Poh Ghim v. QSR Trading Sdn Bhd
(Anna Ng Fui Choo) [2018] 1 ILR 5

Constructive dismissal - Status - Claimant suspended indefinitely pending the outcome of the DI - Whether her suspension had been unreasonable or unreasonably long - Factors to consider - Effect of - Company's actions towards her - Whether bona fide - Whether the company by its actions had breached a fundamental term of her contract of employment - Evidence adduced - Effect of - Whether the test for constructive dismissal had been satisfied - Whether constructive dismissal proven by her against the company - Evidence adduced - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss 20(3) & 30(5)
Teh Poh Ghim v. QSR Trading Sdn Bhd
(Anna Ng Fui Choo) [2018] 1 ILR 5

Insubordination - Whether the claimant had refused to follow the lawful instructions of COW2 - Evidence adduced - Evaluation of - Effect of - Whether she had in fact been the one in breach of her employment contract
Nadia Abdul Jamil v. Samadhi Retreats Sdn Bhd
(Tan Ghee Phaik) [2018] 1 ILR 36

Misconduct - Claimant terminated by the bank for being in breach of sub-s. 68(1)(a) of the Islamic and Financial Services Act 2013 - Whether the breach had been proven by the bank - Evidence adduced - Evaluation of - Effect of - Whether the bank had suffered damage to its reputation due to the various civil suits against the claimant - Position held by the claimant in the bank - Claimant's defence - Whether could be accepted - Whether the bank had been right in dismissing him - Whether dismissal without just cause and excuse - Islamic Financial Services Act 2013, ss. 64, 68(1)(a), 69, 70(2), 172, 174, 175 and 273
Haszeri Hussin v. Hong Leong Islamic Bank Berhad
(Noor Ruwena Mohd Nurdin) [2018] 1 ILR 171

Notice of termination - Termination simpliciter - No reasons stated for the claimant's dismissal in her termination letter - Whether it had amounted to a termination simpliciter - Factors to consider - Effect of
Quek Lee Fun v. Good Spiral Sdn Bhd
(Andersen Ong Wai Leong) [2018] 1 ILR 67

Retrenchment - Redundancy - Claimant retrenched - Claimant on a number of fixed-term contracts after retiring at the age of 50 - Whether she had had a legitimate expectation to continue in the company's employment - Whether she had come under the protection of s. 2 Schedule 1(i) of the Minimum Retirement Age Act 2012 - Factors to consider - Effect of - Minimum Retirement Age Act 2012, s. 2 Schedule 1(i)
Wong Mei Yoke v. Tien Wah Press (Malaya) Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2018] 1 ILR 20

Retrenchment - Redundancy - Claimant retrenched - Whether her position had become redundant - Factors to consider - Evidence adduced - Evaluation of - Effect of - Whether she had been informed of the same - What the company ought to have done - Whether mere reorganisation or redistribution of jobs had been sufficient to justify retrenchment - Whether dismissal without just cause and excuse
Quek Lee Fun v. Good Spiral Sdn Bhd
(Andersen Ong Wai Leong) [2018] 1 ILR 67

Retrenchment - Reorganisation - Reasons for the restructuring exercise - Whether it had constituted normal and acceptable justification for reorganisation - Factors to consider - Effect of - Whether her duties and responsibilities had been vital and important to the company - Whether her role in the company had ceased to exist - Factors to consider - Evidence adduced - Effect of - Claimant's functions and duties taken over by someone else - Effect of - Whether she had been surplus to the company's needs - Factors to consider - Whether her dismissal had been with just cause and excuse
Wong Mei Yoke v. Tien Wah Press (Malaya) Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2018] 1 ILR 20

Retrenchment - Reorganisation - Whether the company had been suffering from financial losses - Factors to consider - Evidence adduced - Effect of - Whether it had been suffering from financial losses even before employing her - Whether mere proof of financial losses had been sufficient to establish redundancy - Whether the retrenchment exercise had been valid - Whether her dismissal had been with just cause and excuse
Quek Lee Fun v. Good Spiral Sdn Bhd
(Andersen Ong Wai Leong) [2018] 1 ILR 67

DOMESTIC INQUIRY

Procedural impropriety - Whether the DI conducted had been valid - Factors to consider - Effect of
Mohd Shafiq Helmi Sohari v. Next Logistics Sdn Bhd
(Anna Ng Fui Choo) [2018] 1 ILR 155

EVIDENCE

Documentary evidence - Findings of the DI - Claimant failing to receive the DI notes from the company despite repeated requests - Reasons for the same - DI findings eventually forwarded to her - What that had shown - Whether the company had had anything to hide - When should findings of the DI be given to a claimant in ordinary circumstances
Teh Poh Ghim v. QSR Trading Sdn Bhd
(Anna Ng Fui Choo) [2018] 1 ILR 5

Documentary evidence - Notes of the DI - Whether it had been accurate - Evidence adduced - Effect of - What it had shown - Whether the DI had been conducted according to the rules of natural justice
Mohd Shafiq Helmi Sohari v. Next Logistics Sdn Bhd
(Anna Ng Fui Choo) [2018] 1 ILR 155

Documentary evidence - Whether the company had been the claimant's employer - Factors to consider - Evidence adduced - Effect of - Who had been the claimant's employer - Whether this claim had been correctly brought by the claimant against the company
Lars Kruse Thomsen v. Hot - Can Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2018] 1 ILR 52

Witness - Testimony - Whether the respondent company's "star witness" had been seriously wanting - Evidence adduced - Effect of - What the respondent company should have done instead
M Sivalingam Muniandy v. Lord WBK Haulage Sdn Bhd
(Domnic Selvam Gnanapragasam) [2018] 1 ILR 82

INDUSTRIAL COURT

Jurisdiction - Extra territorial jurisdiction - Whether possessed by the Industrial Court - Whether it could exercise jurisdiction on a non-Malaysian entity - Factors to consider - Effect of
Lars Kruse Thomsen v. Hot - Can Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2018] 1 ILR 52

Procedure - Parties - Joinder - Joinder of DB Hartanah Sdn Bhd and SPA H2O Sdn Bhd to the proceedings - Whether ought to be allowed - Factors to consider - Test to be applied - Industrial Relations Act 1967, s. 29(a)
Shahrazad Mohamad v. Millesime Hotel Sdn Bhd
(Sumathi Murugiah) [2018] 1 ILR 1

Remedies - Compensation in lieu of reinstatement - Whether suitable to award to the claimant who had been past the age of retirement at the material time
M Sivalingam Muniandy v. Lord WBK Haulage Sdn Bhd
(Domnic Selvam Gnanapragasam) [2018] 1 ILR 82

TRADE DISPUTE

Collective Agreement - Terms and conditions of service - Bonus payments - Company exercising its discretion and not paying the complainants their bonus for the year 2014 - Whether the company had exercised its discretion properly - Factors to consider - Effect of - Whether the company's actions had amounted to an unfair labour practice - What the company should have done
All Malayan Estates Staff Union v. Revertex (Malaysia) Sdn Bhd
(Sumathi Murugiah) [2018] 1 ILR 129

Collective Agreement - Terms and conditions of service - Bonus payments - What would be a suitable amount to award the complainants - Factor to consider - Effect of
All Malayan Estates Staff Union v. Revertex (Malaysia) Sdn Bhd
(Sumathi Murugiah) [2018] 1 ILR 129

INDEKS PERKARA

KETERANGAN

Keterangan dokumentari - Sama ada Fact Finding Interview yang dijalankan oleh syarikat responden adalah teratur - Sama ada Fact Finding Interview tersebut telah mematuhi prinsip keadilan asasi - Faktor-faktor yang harus diambil kira - Keterangan yang dikemukakan - Penilaiannya – Kesannya
Chan Weng Hoi lwn. Sime Darby Industrial Sdn Bhd
(Sapini Mat Saman) [2018] 1 ILR 214

Saksi - Sama ada keterangan COW1 merupakan keterangan dengar cakap - Faktor-faktor yang harus diambil kira – Kesannya
Chan Weng Hoi lwn. Sime Darby Industrial Sdn Bhd
(Sapini Mat Saman) [2018] 1 ILR 214

KONTRAK PERKHIDMATAN

Terma dan syarat - Kontrak perkhidmatan YM mengandungi terma pra-syarat yang perlu dipatuhi oleh beliau sebelum beliau disahkan di dalam jawatannya - Sama ada beliau telah mematuhi pra-syarat tersebut - Keterangan yang dikemukakan - Penilaiannya - Kesannya - Sama ada pra-syarat tersebut merupakan satu terma yang fundamental kepada kontrak perkhidmatan YM - Sama ada kegagalan beliau mematuhi pra-syarat tersebut merupakan kemungkiran satu syarat yang fundamental yang telah mewajarkan pembuangan kerjanya - Sama ada pembuangan kerjanya telah dilakukan secara adil dan bersebab
Ratna Azah Rosli lwn. Universiti Islam Antarabangsa Malaysia
(Sapini Mat Saman) [2018] 1 ILR 137

MAHKAMAH PERUSAHAAN

Bidang kuasa - Tarikh YM dibuang kerja sepertimana dinyatakan di dalam surat JPP dan rujukan Y.B. Menteri tidak tepat - Sama ada Mahkamah Perusahaan boleh menolak tuntutan ini atas alasan itu sahaja
Tan Sim Hong lwn. Scope Manufacturers (M) Sdn Bhd
(Rasidah Chik) [2018] 1 ILR 95

Prosedur - Tindakan - Sama ada syarikat merupakan majikan YM yang sebenar pada masa yang material - Faktor-faktor yang harus diambil kira – Kesannya
Tan Sim Hong lwn. Scope Manufacturers (M) Sdn Bhd
(Rasidah Chik) [2018] 1 ILR 95

PEMBUANGAN KERJA

Pekerja percubaan - Sama ada YM merupakan seorang pekerja percubaan ketika beliau dibuang kerja - Faktor-faktor yang harus diambil kira – Kesannya
Ratna Azah Rosli lwn. Universiti Islam Antarabangsa Malaysia
(Sapini Mat Saman) [2018] 1 ILR 137

Pembuangan kerja secara konstruktif - Syarikat mengeluarkan sepucuk surat tunjuk sebab kepada YM kerana beliau meninggalkan ladang tanpa persetujuan ataupun tanpa memohon cuti terlebih dahulu - Sama ada tindakan syarikat tersebut merupakan kemungkiran fundamental yang telah menyentuh akar umbi kontrak pekerjaan YM dengannya - YM mengambil masa tiga bulan sebelum meninggalkan pekerjaannya - Kesannya - Sama ada YM telah dibuang kerja secara konstruktif - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Tan Sim Hong lwn. Scope Manufacturers (M) Sdn Bhd
(Rasidah Chik) [2018] 1 ILR 95

Salah laku - Sama ada YM "had acted against the interest of the company" atau "undermined the relationship of confidence" - Keterangan yang dikemukakan - Kesannya - Pembelaan YM - Sama ada dapat diterima - Sama ada salah laku tersebut berjaya dibuktikan oleh syarikat responden terhadapnya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Chan Weng Hoi lwn. Sime Darby Industrial Sdn Bhd
(Sapini Mat Saman) [2018] 1 ILR 214