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LATEST CASES (ILR Issue 2 of 2014) SUBJECT INDEX DISMISSAL Breach of company rules and policies - Claimant channelling or deviating the income of the company for his own personal benefit - Whether proven by the company - Evidence adduced - Effect of - Defence put forth by the claimant - Whether acceptable or sustainable - Position of claimant in the company - Seriousness of the claimant's actions - Whether it had constituted a breach of the fiduciary relationship between him and the company - What had been expected of the claimant in his position - Whether the company had been justified in dismissing him - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Drugs - Claimant tested positive for drugs - Whether it been against the company's policies - Perusal of the company's policies and guidelines - Perusal of the claimant's letter of appointment - Effect of - Whether the claimant had been aware of the company's drugs and alcohol policy - Factors to consider - Effect of - Whether charges had been proven by the company - Claimant's defence - Whether sustainable - Whether it had been a serious misconduct - Whether dismissal justified - Whether dismissal without just cause and excuse Breach of company rules and policies - Drugs - Claimant tested positive for drugs - Whether the company's standard operating procedure in the collection of urine samples had been followed - Evidence adduced - Effect of Breach of company rules and policies - Negligence - Whether the claimants had been negligent in carrying out their duties - Evaluation of the evidence adduced - Justifications and defences put forward by the claimants - Whether tenable - Effect of - Whether the claimants had been aware of the correct procedures to follow - Whether they had wilfully disobeyed it - What the claimants should have done - Whether dismissals without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Negligence - Whether the claimants had complied with the BNM and internal guidelines before approving the loan facility - Whether both the guidelines could be read in harmony - Factors to consider - Evidence adduced - Effect of - Whether charges proven by the company - Whether it had been a serious misconduct - Positions held by the claimants - Whether their dismissals had been justified - Whether dismissals without just cause and excuse Breach of company rules and policies - Violence at the workplace - COW1 physically assaulted at the workplace - Whether proven by the company - The claimant's defence one of bare denial - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Violence at the workplace - COW1 physically assaulted at the workplace - Whether the claimant had been responsible for it - Claimant not personally assaulting COW1 - Effect of - Whether it had made the misconduct any less serious - Factors to consider - Whether the misconduct had been proven by the company - Evidence adduced - Whether it had been a serious misconduct - Whether it had justified his dismissal - Whether the company had lost its trust and confidence in the claimant - Whether dismissal without just cause and excuse Constructive dismissal - Benefits - Revision to the claimant's car allowance and mileage claim - Whether it had been provided in his Letter of Appointment - Whether he had raised an objection to it - Effect of - Whether it had amounted to a fundamental breach of his contract of employment Constructive dismissal - Demotion - Claimant transferred from the shock absorbers division to the marketing division - Whether the new position had been a clerical position and effectively a demotion - Factors to consider - Claimant appealing the transfer order - Appeals rejected - Whether it had amounted to the company displaying an intention to no longer to be bound by the contract of employment - Reasons for the transfer - Whether bona fide - Factors to consider - Effect of - Whether the transfer order had been a breach of a fundamental term of the claimant's contract of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss 20(3) & 30(5) Constructive dismissal - Salary - Claimant alleging non-payment of wages and leaving employment - Whether the claimant had been paid his wages - Factors to consider - Determination of the claimant's monthly wages - Effect of - Whether the company had breached a fundamental term of the claimant's contract of employment - Whether the claimant had been constructively dismissed - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Constructive dismissal - Transfer - Claimant transferred from the shock absorbers division to the marketing division - Claimant refusing to report for work - Whether the claimant by her conduct had abandoned her employment - What the claimant should have done Constructive dismissal - Transfer - Claimant transferred from the marketing to the human resources and administration department - Claimant's appeals rejected - Whether it had amounted to the company displaying an intention to no longer be bound by the contract of employment - Reasons for the transfer - Whether bona fide - Factors to consider - Effect of - Company consistently requesting the claimant to report back to work - Claimant refusing - What it had shown - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Constructive dismissal - Transfer - Claimant transferred from the marketing to the human resources and administration department - Claimant refusing to report for work - Whether the claimant by his conduct had abandoned his employment - What the claimant should have done Constructive dismissal - Transfer - Claimant transferred from the marketing to the human resources and administration department - Whether the company's actions had amounted to a fundamental breach going to the root of the contract of employment - Factors to consider - Effect of - Whether he had been victimised by the transfer - Evidence adduced Constructive dismissal - Transfer - Claimant transferred from the shock absorbers division to the marketing division - Whether the transfer order had been a bona fide exercise of management's prerogative - Factors to consider Constructive dismissal - Transfer - Whether the claimant had satisfied the requirements of constructive dismissal - Evidence adduced - Effect of - What the claimant should have done - Whether the claimant had delayed walking out of his employment - Factors to consider - Whether the claimant by his conduct had affirmed the contract of employment Constructive dismissal - Transfer - Whether the claimant's letter of appointment had allowed for the transfers - Perusal of his Letter of Appointment - Effect of - Reasons for the transfer - Whether the company had behaved with mala fide intent towards him - Whether the claimant had been victimised - Evidence adduced - Effect of - What the company's actions towards him had shown - Whether the company's actions towards him had been reasonable - Evidence adduced - Effect of - Whether the claimant had been constructively dismissed Insubordination - Claimant allegedly being insubordinate to his superiors - Whether proven by the company - Evidence adduced - Effect of - No written warnings given to him - Whether the company had been justified in acting in the way it had - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Claimant issued a transfer order - Claimant refusing to comply - No transfer clause in her letter of employment - Claimant appealing against transfer order - Reasons for the same - Company insisting she go on transfer - Company seeking to introduce new transfer clause in her letter of employment - Whether the company by its conduct had breached a fundamental term of her contract of employment - Effect of Misconduct - Claimant transferred from accounts to administration department - Claimant's appeals rejected - Claimant failing to report to Tanjung Malim as directed - Whether it had amounted to misconduct on her part - Factors to consider - Effect of Misconduct - Claimant transferred to place of work 100km away - Claimant refusing to report for work - Reasons for the same - Whether the transfer had been to her detriment - Whether it had been a bona fide exercise of management's prerogative - Factors to consider - Effect of - Claimant's appeals rejected - Company's actions towards her - Whether it had shown mala fide intent - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Performance - Claimant allegedly not performing in his job - Whether proven by the company - Evidence adduced - Effect of - Written warnings not given to him - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, Performance - Unsatisfactory performance - Whether the claimant had been sleeping on the job - Whether proven by the bank - Evidence adduced - Evaluation of - Claimant admitting to receiving oral instructions from COW1 and signing off on discussion sheets - Effect of - Claimant's defence - Whether it had been mere afterthoughts - Whether the bank's actions had been reasonable under the circumstances - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Probationer - Claimant not confirmed at the end of probation period - Whether the bank had incurred a loss from his non-confirmation - Effect of - Whether the bank's actions had been mala fide - Evidence adduced - Evaluation of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Probationer - Claimant terminated at the end of probationary period - No reasons stipulated in his termination letter - Effect of - Whether the bank had followed all necessary processes and procedures in assessing his performance - Evidence adduced - Effect of - Whether the bank had breached the MOA - Factors to consider EVIDENCE Adverse inference - When it would be drawn - Whether suitable to be drawn for the non-calling of Const. Shahrul Nizam Jenal - Industrial Relations Act 1967, ss. 29(b) & (c) Burden of proof - Whose burden to proof - Whether discharged - What the standard of proof had been - The proper approach to take Documentary evidence - Document relied on by claimant to prove his monthly wages disputed by the company - Whether the claimant had proven that CL1 had been a company document - Evidence adduced - Effect of - Whether the claimant had tipped the balance of probabilities in his favour - Claimant not disputing the company's salary sheet - Effect of Documentary evidence - Claimant stating forced resignation in his letter to the company but pleading constructive dismissal in his pleadings filed in court - Effect of - Whether his claim should be dismissed on those grounds alone - Effect of INDUSTRIAL COURT Procedure - Parties - Joinder - Whether the proposed joinees should be joined to the non-compliance application - Factors to consider - Whether the corporate veil of the company should be lifted - Evidence adduced - Evaluation of - Whether the joinder application ought to be allowed Procedure - Pleadings - Inconsistencies between the claimant's pleadings and his letter to the company - Effect of - Whether his pleadings had been an afterthought - Factors to consider SALARIES & WAGES Determination of - Factors to consider - Whether it had included payments made by the company to his children - Employment Act 1955, s. 2 TRADE DISPUTE Collective agreement - Interpretation of the article on retrenchment benefits - Closure of respondent company's steel plant - Affected workmen terminated from service - Whether it had amounted to a retrenchment - Factors to consider - Perusal of Indian Court decisions - Effect of - Industrial Relations Act 1967, s. 26(2) Collective agreement - Interpretation of the article on retrenchment benefits - Whether it had applied to the affected workmen - Factors to consider - Effect of - Meaning of the words "retrenchment" and "redundancy" - Whether provided for in the Industrial Relations Act 1967 Whether the complaint had constituted a trade dispute - Perusal of s. 2 of the Industrial Relations Act 1967 - Whether an employer and employee relationship had existed between the bank and MDNG - Factors to consider - Industrial Relations Act 1967, s. 2 TRADE UNION Union lodging a complaint for issuance of a LOD to its union officer by the bank - Whether it had constituted union busting - Factors to consider - Whether the union officer had been in the bank's employment - Whether the relationship of employer and employee had existed between the parties - Evidence adduced - Evaluation of - Effect of - Industrial Relations Act 1967, s. 8 Whether there had been a contravention of ss. 4 and 5 of the Industrial Relations Act 1967 - Whether those sections had covered acts between a corporate body and a person not in its employment - Factors to consider - Effect of - Whether the bank had the right to invoke sections 4, 5 and 8 of the Industrial Relations Act 1967 against the bank - Industrial Relations Act 1967, ss. 4, 5 and 8 INDEKS PERKARA UNDANG-UNDANG BURUH Ganti rugi - Tuntutan - Pemecatan - Pekerja menghantar notis inkuiri kepada majikan meminta penjelasan mengapa jawatannya gagal disahkan - Pekerja menerima surat penamatan selepas menghantar notis inkuiri - Sama ada tindakan majikan menamatkan perkhidmatan pekerja sah di sisi undang-undang - Sama ada pekerja wajar diberikan pengiktirafan jawatan tetap dengan pembatalan penyekatan pergerakan gaji - Tuntutan bagi pelarasan gaji bermula dari tahun terhentinya pergerakan gaji pekerja sehingga ditamatkan perkhidmatan Pekerjaan - Pemecatan - Tempoh percubaan jawatan dilanjutkan kerana tiada perakuan Ketua Jabatan untuk disahkan jawatan dalam tempoh yang ditetapkan - Penyekatan pergerakan gaji dan penangguhan perkhidmatan pekerja - Notis inkuiri oleh pekerja meminta penjelasan mengapa jawatan gagal disahkan - Pekerja menerima surat penamatan setelah lima tahun bekerja - Sama ada tindakan majikan menamatkan perkhidmatan pekerja sah di sisi undang-undang |
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