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LATEST CASES (ILR Issue 2 of 2015) SUBJECT INDEX ADMINISTRATIVE LAW Exercise of administrative powers - Dismissal from service - Disciplinary authority - Power of delegation - Whether correct quorum sat as disciplinary authority - Whether police force commission legally appointed - Whether there was procedural unfairness - Date of dismissal - Whether stated - Whether dismissal incomplete - Whether officer given right to be heard - Whether charge defective - Federal Constitution, arts. 135(2), 140(1) & (3) Rules of natural justice - Dismissal - Right to be heard - Whether fundamental to natural justice - Whether reasonable opportunity to be heard given - Federal Constitution, art. 135(2) CONSTITUTIONAL LAW Public servants - Dismissal - Right to be heard - Whether denied - Whether reasonable opportunity to be heard given - Procedural fairness - Whether adhered to - Federal Constitution, art. 135(2) - Whether appellant reinstated CONTRACT OF EMPLOYMENT Type of - Claimant employed on a series of fixed term contracts - Claimant prevented from completing duration of last contract - Whether it had amounted to a dismissal - Factors to consider - Effect of Type of - Whether the claimant had been employed on a fixed term contract - Factors to consider - Claimant signing the Swiss contract which was open ended and the Second contract which had a fixed period respectively - Whether the later one meant to supersede the earlier one - Factors to consider - Reasons for both contracts - Whether both companies had been jointly and severally liable - Factors to consider - Effect of DAMAGES Action for - Personal injuries - Workmen's compensation, whether bar to action - Motor vehicle accident - Whether employment injury - Whether employee insured under Employees' Social Security Act 1969 - Whether claim barred by s. 31 - Whether parties equally liable - Special damages - Whether proved - Fracture of right femur and laceration wound - Loss of future earnings - Whether awarded - Civil Law Act 1956, s. 28A DISMISSAL Breach of company rules and policies - Dishonesty - Whether proven by the company - Whether sufficiently serious to warrant his dismissal - Factors to consider - Whether the company's actions had been with regard to equity and good conscience - Whether the punishment of dismissal had been too harsh in the circumstances - Factors to consider - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Dishonesty - Whether the claimant had issued false receipts - Whether proven by the company - Evidence adduced - Claimant's admissions in his reply to the show cause letter and in court - Effect of - Whether the claimant ought to have been dismissed for it - Factors to consider Constructive dismissal - Obscene language and vulgarities allegedly used against the claimant - Whether proven by her - Evidence adduced - Effect of Constructive dismissal - Transfer - Claimant transferred to the Philippines - Whether the claimant had been singled out and victimised vide the transfer - Factors to consider - Evidence adduced - Effect of - Whether the claimant had satisfied the requirements of constructive dismissal - Whether the company had carried out the transfer bona fide - Whether the company's actions had constituted an intention to no longer be bound by the contract of service - Claimant's conduct throughout the whole process - Whether reasonable Constructive dismissal - Transfer - Reasons for the transfer - Whether bona fide - Whether the company's actions towards her had been reasonable - Evidence adduced - Effect of - Whether the claimant had been constructively dismissed Constructive dismissal - Warning letter - Claimant issued a warning letter - Claimant appealing against the same to no avail - Company's actions - Whether reasonable - Whether the company's actions had been a breach which had gone to the root of her contract of employment - Factors to consider - Effect of - Whether the claimant had been constructively dismissed Constructive dismissal - Warning letter - Contents of the warning letter - Whether it had been a breach going to the root of her contract of employment - Factors to consider - Effect of - Whether the company's actions had been reasonable - Whether constructive dismissal proven by the claimant Constructive dismissal - Warning letter - Whether the threat of future disciplinary action could be construed as a breach going to the root of the contract of employment - Factors to consider Constructive dismissal - Warning letter issued to the claimant - Claimant's response to it - Whether the company's actions had been reasonable - Whether the company by its actions had evinced an intention to no longer be bound by the contract of employment - Factors to consider - Effect of - Whether it had amounted to a fundamental breach of her contract of employment - What the claimant should have done Insubordination - Claimant allegedly not handing over the cheque books, petty cash and authorised signatory rubber stamps to her superiors - Whether proven by the company - Evidence adduced - Effect of - 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) Insubordination - Whether the claimant had failed to follow the lawful instructions of COW4 - Evidence adduced - Evaluation of - Claimant's conduct - Whether the claimant's conduct had repudiated his contract of service - Whether the claimant's behaviour had been acceptable - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Claimant allegedly uttering words to threaten the company - Whether proven by the company - Evidence adduced - Effect of - Company not conducting investigations into the allegation - Whether the company had been reasonable in dismissing the claimant - Whether the company had complied with the rules of natural justice - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Whether the claimant had been negligent - Whether the claimant had lost the cash which had been set aside for CRT purposes - Evidence adduced - Evaluation of - Claimant's defence - Whether it could be accepted Misconduct - Whether the claimant had been under the influence of alcohol when reporting to the meeting site - Evidence adduced - Effect of - Whether the company had proven this charge against him on a balance of probabilities - Whether the company had to prove actual loss suffered before taking any disciplinary action against him - Whether the company had been reasonable in dismissing him - Whether dismissal without just cause and excuse Notice of termination - Company issuing a letter informing the claimant that her visa has expired and preventing her from teaching - Whether it had amounted to a summary dismissal - Factors to consider - Effect of - Whether the company by its conduct had evinced an intention not to be bound by the contract of employment - Whether her dismissal had been without just cause and excuse Retrenchment - Company downsizing - Claimants retrenched and paid retrenchment benefits - Whether the restructuring exercise had been carried out bona fide - Factors to consider - Effect of - Company's financial position at the material time - Whether the claimants had been attempting to have a second bite of the cherry by filing this claim Retrenchment - Company downsizing - Whether the retrenchment exercise had been carried out in accordance with accepted practice - Factors to consider - Whether the Code of Conduct for Industrial Harmony had legal force - What role it had played - Whether the rules of natural justice had been complied with - Factors to consider - Effect of - Whether the claimants had been given sufficient notice of their retrenchments Retrenchment - Restructuring - Whether the company's restructuring exercise had been genuine - Factors to consider - Evidence adduced - Effect of DOMESTIC INQUIRY Charges - Whether the charges against the claimant for insubordination had been too vague and void ab initio - Factors to consider - Whether the claimant had been put on notice of the charges brought against him - Claimant failing to plead defective charges - Effect of Findings of the DI - Whether they had been verbatim notes of the proceedings - Notes not verified by the claimant despite requests - Whether the notes could be relied on as accurate - Factors to consider - Effect of Procedural impropriety - COW2 acting as Chairman, prosecutor and secretary - Whether that had rendered the DI improper and perverse Procedural impropriety - Whether the rules of natural justice had been complied with - Factors to consider - Effect of - Whether the findings of the Domestic Inquiry had been improper and perverse EVIDENCE Adverse inference - Non production of a material witness - Company failing to call Haryatey Hanapi - Whether an adverse inference ought to be drawn for such failure Burden of proof - Whether the claimant had discharged it on a balance of probabilities - Whether she had been constructively dismissed by the company - Factors to consider Burden of proof - Whether discharged by the company - Factors to consider - Effect of Witness - Evidence of COW2 - COW2 a serving employee of the company and standing to benefit from claimant's dismissal - Whether his evidence could be accepted without question - Factors to consider - Effect of Witnesses - Whether the company's witnesses had been able to rebut the claimant's case - Evidence adduced - Evaluation of - Effect of - Company failing to call the claimant's immediate superior who had still been in its employ - No reasons put forward by the company - Whether the evidence of this witness had been material - Factors to consider - Whether the company had succeeded in proving the misconduct against the claimant - Evidence adduced - Effect of INDUSTRIAL COURT Remedies - Punishment - Whether the claimant had been dealt double punishment - Factors to consider - Whether it had been relevant in this case LABOUR LAW Employment - Compensation - Claim for - Motor vehicle accident - Whether employment injury - Change of functions from operator to driver - Whether within scope of employment - Whether employee insured under Employees' Social Security Act 1969 - Whether claim barred by s. 31 - Whether parties equally liable Employment - Wages and conditions of employment - Application for paid leave to attend trade union activities - Failure to state reason for leave in application form - Employer allowed unpaid leave - Whether art. 7 memorandum of agreement required reason to be stated - Whether employee gave reasonable notice - Whether employer could insist on compliance with contractual requirement - Whether employer acted mala fide NOTICE OF TERMINATION Forced resignation - Whether the claimant had been forced to resign - Evidence adduced - Effect of TORT Damages - Road accident - Claim for - Motor vehicle accident - Whether employment injury - Whether employee insured under Employees' Social Security Act 1969 - Whether claim barred by s. 31 - Whether parties equally liable - Special damages - Whether proved - Fracture of right femur and laceration wound - Loss of future earnings - Whether awarded - Civil Law Act 1956, s. 28A WORDS & PHRASES Employment injury - Meaning of - Employees' Social Security Act 1969, s. 31 - Motor vehicle accident - Injuries sustained - Whether fell within definition of employment injury - Whether proviso to s. 31 applicable INDEKS PERKARA KETERANGAN Inferens yang bertentangan - Syarikat responden gagal untuk mengemukakan rakaman perbualan antara YM dan pelanggannya dan gagal untuk memanggil penyelia YM - Sama ada inferens bertentangan adalah terpakai - Faktor-faktor yang harus diambil kira - Kesannya MAHKAMAH PERUSAHAAN Prosedur - Tindakan - Pihak responden telah digulungkan - Sama ada kebenaran Mahkamah Tinggi diperlukan sebelum tindakan di mahkamah ini dapat diteruskan - Faktor-faktor yang harus diambil kira - Kesannya - Penilaian keterangan dan otoriti yang dikemukakan - Sama ada YM harus mematuhi s. 226(3) Akta Syarikat 1965 - Penilaian peruntukan tersebut - Kesannya - Akta Syarikat 1965, s. 226(3) PENAMATAN PERKHIDMATAN Prestasi kerja - Prestasi kerja yang tidak memuaskan - Sama ada berjaya dibuktikan oleh syarikat - Keterangan yang dikemukakan - Kesannya - Pembelaan YM - Sama ada dapat diterima - Kesannya - Tindakan syarikat - Sama ada munasabah - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) |
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