LATEST CASES (ILR Issue 1 of 2020)

SUBJECT INDEX

DISMISSAL

Absenteeism – Whether the claimant had been absent from work and had failed to adhere to the company's working hours – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant's defence and explanations – Whether could be accepted – Whether her actions had constituted misconduct warranting her dismissal – Factors to consider – Whether her dismissal had been without just cause and excuse
Thilagawathi Narayanasamy v. CS Prop Sdn Bhd
(Rosenani Abd Rahman) [2020] 1 ILR 62

Breach of company rules and policies – Dishonesty – Whether the claimant had submitted a false claim to the company through the "Refer A Friend Policy" – Factors to consider – Evidence adduced – Effect of – Whether proven by the company against her – Claimant's explanations – Whether it had merits – Whether her actions had constituted gross misconduct – Position held by the claimant in the company – Whether she had been in breach of her fiduciary duties owed to the company – Whether her dismissal had been without just cause and excuse
Thilagawathi Narayanasamy v. CS Prop Sdn Bhd
(Rosenani Abd Rahman) [2020] 1 ILR 62

Misconduct – Whether the claimant had given false information and misled the company's Director – Factors to consider – Evidence adduced – Effect of – Her explanations and admissions – What it had shown – Whether the charge had been proven against her – Whether it had warranted her dismissal – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Thilagawathi Narayanasamy v. CS Prop Sdn Bhd
(Rosenani Abd Rahman) [2020] 1 ILR 62

Performance – Poor performance – Claimant put on a Performance Improvement Plan – Intention of the PIP – How it should ideally be used by a company – Whether the claimant's appraiser for the PIP had possessed the necessary experience to coach, encourage and appraise her – Whether she had been objectively and fairly appraised – Factors to consider – Evidence adduced – Effect of – What the company's actions towards her had shown
Norain Redzkiah Osman Salleh v. Petroliam Nasional Berhad
(Augustine Anthony) [2020] 1 ILR 142

Performance – Poor performance – Whether the claimant had been a poor performer – Factors to consider – Evidence adduced – Effect of – Whether proven by the company against her – Claimant having an unblemished work record with the company and serving it loyally for 24 years – What that had indicated – Whether the company's actions towards her had been reasonable – Whether dismissal without just cause and excuse
Norain Redzkiah Osman Salleh v. Petroliam Nasional Berhad
(Augustine Anthony) [2020] 1 ILR 142

INDUSTRIAL COURT

Jurisdiction – Whether the Industrial Court could hear and determine issues that are outside the Ministerial Reference – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the union's claim ought to be allowed
Kesatuan Pekerja-pekerja Continental Tyre PJ Malaysia Sdn Bhd v. Continental Tyre PJ Malaysia Sdn Bhd
(Franklin Goonting) [2020] 1 ILR 51

TRADE DISPUTE

Collective Agreement – Terms and conditions of service – Article on annual increment – What would be a fair percentage to award – Factors to consider – Effect of
Kesatuan Pekerja-Pekerja Perusahaan Logam v. George Kent (Malaysia) Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 73

Collective Agreement – Terms and conditions of service – Article on annual leave – Whether the proposed new clause by the company ought to be allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-Pekerja Perusahaan Logam v. George Kent (Malaysia) Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 73

Collective Agreement – Terms and conditions of service – Article on annual salary revision – Whether the union's proposal of an annual adjustment of 100% of the CPI or 6%, whichever is higher, had been reasonable – Factors to consider – Evidence adduced – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. GKN Driveline Malaysia Sdn Bhd
(Mariani Ghani) [2020] 1 ILR 1

Collective Agreement – Terms and conditions of service – Articles on bonus syarikat, hari kelepasan am, kerja pada hari kelepasan am and kerja pada hari rehat dan hari off – Whether the existing articles ought to be maintained – Factors to consider – Evidence adduced – Effect of
Kesatuan Penyelia-penyelia Projek Lebuhraya Usahasama Berhad v. Projek Lebuhraya Usahasama Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 174

Collective Agreement – Terms and conditions of service – Article on bonus – Whether the union's proposal to enhance the rate of bonus from half a month's basic salary to two months, ought to be allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. GKN Driveline Malaysia Sdn Bhd
(Mariani Ghani) [2020] 1 ILR 1

Collective Agreement – Terms and conditions of service – Article on elaun syif – Whether the current shift allowance ought to be revised upwards and in what amount – Factors to consider – Evidence adduced – Effect of
Kesatuan Penyelia-penyelia Projek Lebuhraya Usahasama Berhad v. Projek Lebuhraya Usahasama Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 174

Collective Agreement – Terms and conditions of service – Articles on hours of work, overtime and rest days – Whether the status quo of the previous CA ought to be maintained – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-Pekerja Perusahaan Logam v. George Kent (Malaysia) Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 73

Collective Agreement – Terms and conditions of service – Article on kenaikan gaji – What would be a fair percentage to award – Factors to consider – Evidence adduced – Effect of
Kesatuan Penyelia-penyelia Projek Lebuhraya Usahasama Berhad v. Projek Lebuhraya Usahasama Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 174

Collective Agreement – Terms and conditions of service – Article on medical attention – Whether the union's proposal to revise the existing limits ought to be allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. GKN Driveline Malaysia Sdn Bhd
(Mariani Ghani) [2020] 1 ILR 1

Collective Agreement – Terms and conditions of service – Article on merit increment – Whether the union's proposal to enhance the added value increment by 100%, by increasing the current rate from 3% to 6%, for the agreed duration of two years and to introduce a new Productivity Linked Wages (‘PLW') Monthly Incentive Scheme, had been reasonable – Factors to consider – Evidence adduced – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. GKN Driveline Malaysia Sdn Bhd
(Mariani Ghani) [2020] 1 ILR 1

Collective Agreement – Terms and conditions of service – Article on pelarasan gaji – What would be a reasonable percentage to award – Factors to consider – Evidence adduced – Effect of
Kesatuan Penyelia-penyelia Projek Lebuhraya Usahasama Berhad v. Projek Lebuhraya Usahasama Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 174

Collective Agreement – Terms and conditions of service – Article on pengubahsuaian dan penamatan – Whether the existing termination notice of 6 months had been sufficient – Factors to consider – Evidence adduced – Effect of
Kesatuan Penyelia-penyelia Projek Lebuhraya Usahasama Berhad v. Projek Lebuhraya Usahasama Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 174

Collective Agreement – Terms and conditions of service – Article on performance incentives and bonus – Determination of what a fair formula would be – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-Pekerja Perusahaan Logam v. George Kent (Malaysia) Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 73

Collective Agreement – Terms and conditions of service – Article on promotion – Whether the union's proposal that where there is a vacancy, the company should advertise it internally on the notice board, invite applicants from the existing workforce and promote the applicants accordingly, had been reasonable – Factors to consider – Evidence adduced – Effect of – Whether promotion is one of the managerial prerogatives recognised by the Industrial Relations Act – Industrial Relations Act 1967, s. 13(3)
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. GKN Driveline Malaysia Sdn Bhd
(Mariani Ghani) [2020] 1 ILR 1

Collective Agreement – Terms and conditions of service – Article on pungutan yuran kesatuan – Whether check-off could be included in a CA – Factors to consider – Evidence adduced – Effect of
Kesatuan Penyelia-penyelia Projek Lebuhraya Usahasama Berhad v. Projek Lebuhraya Usahasama Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 174

Collective Agreement – Terms and conditions of service – Article on retirement age – Whether the union's proposal for optional retirement to be set at the age of 55 and for the company to offer re-employment on a year to year basis for employees who had retired, upon reaching the retirement age, had been reasonable – Factors to consider – Evidence adduced – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. GKN Driveline Malaysia Sdn Bhd
(Mariani Ghani) [2020] 1 ILR 1

Collective Agreement – Terms and conditions of service – Article on retirement benefit – Whether the union's proposal of one month's last drawn salary for any employee who retires after completing 5 years of service, had been reasonable – Factors to consider – Financial implication to the company – Whether ought to be allowed
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. GKN Driveline Malaysia Sdn Bhd
(Mariani Ghani) [2020] 1 ILR 1

Collective Agreement – Terms and conditions of service – Article on salary adjustment – Determination of a fair percentage to allow – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-Pekerja Perusahaan Logam v. George Kent (Malaysia) Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 73

Collective Agreement – Terms and conditions of service – Article on salary adjustment – Whether the union's proposal of 12% had been reasonable – Factors to consider – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. GKN Driveline Malaysia Sdn Bhd
(Mariani Ghani) [2020] 1 ILR 1

Collective Agreement – Terms and conditions of service – Article on salary range – Whether the union's proposal to introduce a new salary structure should be allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. GKN Driveline Malaysia Sdn Bhd
(Mariani Ghani) [2020] 1 ILR 1

Collective Agreement – Terms and conditions of service – Article on salary scales – Whether the union's proposal to raise the maximum and minimum rates of existing salary scales by RM300.00 ought to be allowed – Factors to consider – Effect of – Whether the Minimum Wages Order can be relied upon – Intention of Parliament – Effect of – National Wages Consultative Council Act 2011, s. 21
Kesatuan Pekerja-Pekerja Perusahaan Logam v. George Kent (Malaysia) Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 73

Collective Agreement – Terms and conditions of service – Article on shift allowance – Whether the company's proposal to give an additional RM2.00 to those on night shift, ought to be allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-Pekerja Perusahaan Logam v. George Kent (Malaysia) Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 73

Collective Agreement – Terms and conditions of service – Article on shift allowance – Whether the union's proposal of RM3 for the morning shift and a revision of the existing rates for the 2nd and 3rd shifts ought to be allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. GKN Driveline Malaysia Sdn Bhd
(Mariani Ghani) [2020] 1 ILR 1

Collective Agreement – Terms and conditions of service – Article on skim Baksis untuk bekas penyelia Lembaga Lebuhraya Malaysia – Determination on what would be fair – Factors to consider – Evidence adduced – Effect of
Kesatuan Penyelia-penyelia Projek Lebuhraya Usahasama Berhad v. Projek Lebuhraya Usahasama Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 174

Collective Agreement – Terms and conditions of service – Article on struktur gaji – Determination of what would be a fair structure – Factors to consider – Evidence adduced – Effect of
Kesatuan Penyelia-penyelia Projek Lebuhraya Usahasama Berhad v. Projek Lebuhraya Usahasama Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 174

Collective Agreement – Terms and conditions of service – Article on tarikh dan tempoh kuat kuasa perjanjian – Whether there had been a reasonable, practical and compelling reason to extend the duration of the CA to 5 years – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, s. 14(2)(b)
Kesatuan Penyelia-penyelia Projek Lebuhraya Usahasama Berhad v. Projek Lebuhraya Usahasama Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 174

Collective Agreement – Terms and conditions of service – Article on tol subsidi – Whether it ought to be allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Penyelia-penyelia Projek Lebuhraya Usahasama Berhad v. Projek Lebuhraya Usahasama Berhad
(P Iruthayaraj D Pappusamy) [2020] 1 ILR 174

Collective Agreement – Terms and conditions of service – Preliminary objection raised on whether the union had the locus standi to represent the workmen of the company – Factors to consider – Evidence adduced – Evaluation of – Effect of
Kesatuan Pekerja-pekerja Perusahaan Membuat Tekstil Dan Pakaian Johor v. Winbright (M) Sdn Bhd
(Sumathi Murugiah) [2020] 1 ILR 56

Collective Agreement – Terms and conditions of service – Whether General Workers, who had been outsourced by the company, ought to be included in the Union's scope of representation – Factors to consider – Evidence adduced – Effect of – Trade Unions Act 1959, s. 26(1A)
Kesatuan Pekerja-pekerja Perkilangan Perusahaan Makanan v. Nestle Manufacturing (M) Sdn Bhd
(Anna Ng Fui Choo) [2020] 1 ILR 128

Collective Agreement – Terms and conditions of service – Whether the movement of the aggrieved workman from operating machine TBM 2200/ 1 to DM had been an unfair labour practice – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-pekerja Continental Tyre PJ Malaysia Sdn Bhd v. Continental Tyre PJ Malaysia Sdn Bhd
(Rajendran Nayagam) [2020] 1 ILR 169

INDEKS PERKARA

MAHKAMAH PERUSAHAAN

Bidang kuasa – Sama ada responden merupakan satu autoriti berkanun – Faktor-faktor yang harus diambil kira – Penilaian Akta-akta yang relevan – Kesannya – Sama ada Mahkamah Perusahaan mempunyai bidang kuasa untuk mendengar rujukan ini – Akta Perhubungan Perusahaan 1967, ss. 2, 20 dan 52 & Akta Akauntan 1967, ss. 3 dan 6
Sharifah Baizuriah Syed Mohamad Zin lwn. Institut Akauntan Malaysia
(Siti Salwa Musa) [2020] 1 ILR 162