LATEST CASES (ILR Issue 2 of 2018)

SUBJECT INDEX

CONTRACT OF EMPLOYMENT

Existence of – Whether there had existed a contract of employment between the parties – Factors to consider – Evidence adduced – Effect of – Whether the claimant had been an employee of the company – Whether he had been dismissed by the company – Whether dismissal without just cause and excuse
J Mathew Miranda v. Bahtera Glokal Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2018] 1 ILR 253

Terms and conditions – Determination of who the claimant’s employer had been – Factors to consider – Evidence adduced – Effect of – Perusal of the contracts – Whether they should be read collectively – Intention of the parties
John Brian Chesson v. Baker Hughes (Malaysia) Sdn Bhd
(Jamhirah Ali) [2018] 1 ILR 357

Terms and conditions – Notice of termination – No reasons stated in termination letter for his dismissal – Reasons stated in company witnesses’ testimony in court – Effect of
Ahmad Mohd Khairuddin v. Global Knowledge Network (M) Sdn Bhd
(Rosenani Abd Rahman) [2018] 1 ILR 392

DISMISSAL

Absenteeism – Whether the claimant had been absent without leave on the material days – Evidence adduced – Effect of – Claimant’s explanations – Whether acceptable – Whether charge proven by the company – Claimant’s position in the company – What he should have done – Whether his nonchalant attitude had justified his dismissal – Whether dismissal without just cause and excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Syahrizal Salam @ Mansor v. Desaru Damai Beach Resort Sdn Bhd
(Sumathi Murugiah) [2018] 1 ILR 381

Insubordination – Whether the claimant had, by her words and actions, been insubordinate to COW1 – Factors to consider – Evidence adduced – Effect of – Whether proven by the company against her – What the company should have done – Whether dismissal without just cause and excuse
Tan Ah Gek v. Maritime Intelligence Sdn Bhd
(Sumathi Murugiah) [2018] 1 ILR 283

Misconduct – Claimant submitting a false CV – Whether it had been a serious misconduct – Factors to consider – Whether it had justified his dismissal
Khoo Kim Loang v. Kim Siah Electric Co Sdn Bhd
(Tan Ghee Phaik) [2018] 1 ILR 369

Misconduct – Whether the claimant had displayed crude and abusive behaviour towards her staff – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had been proven by the company against her – Whether dismissal with just cause and excuse
Tan Ah Gek v. Maritime Intelligence Sdn Bhd
(Sumathi Murugiah) [2018] 1 ILR 283

Misconduct – Whether the claimant had submitted a false CV to secure the job in the respondent company – Factors to consider – Evidence adduced – Effect of – What the respondent company should have done in light of the rise in CV fraud – Claimant having many unjust dismissal cases in the IC – What that had shown – Whether this case ought to be dismissed
Khoo Kim Loang v. Shock Media Studio Sdn Bhd
(Tan Ghee Phaik) [2018] 1 ILR 320

Misconduct – Whether the claimant had submitted a false CV to secure the job in the respondent company – Factors to consider – Evidence adduced – Effect of – Whether the respondent company could still repose trust and confidence in him – Whether it had justified his immediate dismissal
Khoo Kim Loang v. Kim Siah Electric Co Sdn Bhd
(Tan Ghee Phaik) [2018] 1 ILR 369

Misconduct – Whether the claimant through letters from her solicitors had indicated malicious intent to undermine COW1’s authority – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had been proven by the company against her – Whether she had furnished false information to her solicitors – Whether the company had acted reasonably in dismissing her – Whether dismissal with just cause and excuse
Tan Ah Gek v. Maritime Intelligence Sdn Bhd
(Sumathi Murugiah) [2018] 1 ILR 283

Performance – Unsatisfactory performance – Claimant refusing to conduct training as instructed – Whether proven by the company – Evidence adduced – Effect of – Whether it had amounted to a breach of an essential term of his employment contract – Whether it had been an act of disobedience or misconduct that had justified his instant dismissal – Whether dismissal without just cause or excuse
Ahmad Mohd Khairuddin v. Global Knowledge Network (M) Sdn Bhd
(Rosenani Abd Rahman) [2018] 1 ILR 392

Performance – Unsatisfactory performance – Whether the claimant had been a poor performer – No show cause letter or performance appraisals conducted on him – Effect of – Claimant representing himself to have 18 years of experience in his field – Whether he needed to be treated like a junior employee – Factors to consider – Effect of – Claimant’s attitude – Whether it had justified his dismissal
Ahmad Mohd Khairuddin v. Global Knowledge Network (M) Sdn Bhd
(Rosenani Abd Rahman) [2018] 1 ILR 392

Probationer – Claimant still under probation when dismissed – Whether his actions had been unbecoming of his position in the company – Factors to consider – Effect of – Whether it had been reasonable for the company to exercise its managerial prerogative to dismiss him – Whether dismissal with just cause and excuse
Syahrizal Salam @ Mansor v. Desaru Damai Beach Resort Sdn Bhd
(Sumathi Murugiah) [2018] 1 ILR 381

Probationer – Whether the claimant had been a probationer when he had been terminated from employment – Factors to consider – Evidence adduced – Effect of – Whether he had been suitable for the position – Claimant’s attitude – What it had shown – Whether dismissal without just cause and excuse
Ahmad Mohd Khairuddin v. Global Knowledge Network (M) Sdn Bhd
(Rosenani Abd Rahman) [2018] 1 ILR 392

Retrenchment – Redundancy – Claimant retrenched – Whether his position had become redundant – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had been suffering from financial losses – Effect of – Whether the retrenchment exercise had been carried out bona fide – Whether his dismissal had been with just cause and excuse
Abdul Azim Hamudin v. Pulai Springs Resort Berhad
(Sumathi Murugiah) [2018] 1 ILR 346

Retrenchment – Redundancy – Selection for redundancy – Whether the claimant had been informed of her pending retrenchment – Evidence adduced – Effect of – Whether the position she had been hired for, had no longer existed – Evaluation of the evidence – Effect of
Anizah Abdull Wahab v. Panalpina Transport (M) Sdn Bhd
(Anna Ng Fui Choo) [2018] 1 ILR 402

Retrenchment – Redundancy – Whether the claimant’s position had become redundant – Factors to consider – Evidence adduced – Effect of – Whether the claimant’s duties, functions and responsibilities, had ceased and had not been carried out under a different manner or by others – Effect of – Company’s actions towards her – Whether the company had exercised its managerial prerogative in a bona fide manner – What it should have done – Whether the company’s actions had been an unfair labour practise – Whether a genuine redundancy situation had existed justifying her dismissal – Whether dismissal without just cause and excuse
Anizah Abdull Wahab v. Panalpina Transport (M) Sdn Bhd
(Anna Ng Fui Choo) [2018] 1 ILR 402

DOMESTIC INQUIRY

Absence of – Whether it had been necessary to hold one before dismissing the claimant – Factors to consider – Effect of
Khoo Kim Loang v. Kim Siah Electric Co Sdn Bhd
(Tan Ghee Phaik) [2018] 1 ILR 369

Procedural impropriety – Whether the DI had been conducted according to the rules of natural justice – Factors to consider – Effect of
Tan Ah Gek v. Maritime Intelligence Sdn Bhd
(Sumathi Murugiah) [2018] 1 ILR 283

EVIDENCE

Documentary evidence – Whether the claimant had been a workman within the definition of s. 2 of the Industrial Relations Act – Claimant paid consultation fees – Whether consultation fees had been reflective of monthly salaries – Factors to consider – Effect of
J Mathew Miranda v. Bahtera Glokal Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2018] 1 ILR 253

Documentary evidence – Whether the claimant had been a workman within the definition of s. 2 of the Industrial Relations Act – Factors to consider – Evidence adduced – Effect of – Whether he had been hired by the company under a contract for service or a contract of service – Industrial Relations Act 1967, s. 2
J Mathew Miranda v. Bahtera Glokal Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2018] 1 ILR 253

Witness – Whether the company had produced sufficient witnesses and evidence to establish its case against the claimant – Factors to consider – Effect of – What it should have done
Tan Ah Gek v. Maritime Intelligence Sdn Bhd
(Sumathi Murugiah) [2018] 1 ILR 283

INDUSTRIAL COURT

Jurisdiction – Claimant not a workman under the Industrial Relations Act – Whether the Industrial Court had the jurisdiction to hear his claim for outstanding consultation fees and expenses incurred – Factors to consider – Where his remedy lay
J Mathew Miranda v. Bahtera Glokal Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2018] 1 ILR 253

Jurisdiction – Claimant’s employer was a company incorporated in the United Arab Emirates – Whether the IC had the jurisdiction to hear the matter
John Brian Chesson v. Baker Hughes (Malaysia) Sdn Bhd
(Jamhirah Ali) [2018] 1 ILR 357

LABOUR LAW

Employment – Retirement – Retirement benefits – Claim for service charges to be included in calculation of retirement benefits – Collective agreement silent on definition of ‘wages’ – Whether definition in Employment Act 1955 to be adopted – Whether service charge formed part of ‘wages’ for purpose of computing retirement benefits
National Union Of Hotel, Bar & Restaurant Workers Peninsular Malaysia & Anor v. Mahsyur Mutiara Sdn Bhd (Sheraton Langkawi Beach Resort)
(Mohd Zawawi Salleh, Zamani A Rahim & Zaleha Yusof JJCA) [2018] 1 ILR 241

Trade union – Collective agreement – Retirement benefits – Claim for service charges to be included in calculation of retirement benefits – Collective agreement silent on definition of ‘wages’ – Whether definition in Employment Act 1955 to be adopted – Whether service charge formed part of ‘wages’ for purpose of computing retirement benefits
National Union Of Hotel, Bar & Restaurant Workers Peninsular Malaysia & Anor v. Mahsyur Mutiara Sdn Bhd (Sheraton Langkawi Beach Resort)
(Mohd Zawawi Salleh, Zamani A Rahim & Zaleha Yusof JJCA) [2018] 1 ILR 241

INDEKS PERKARA

PEMBUANGAN KERJA

Ketidakpatuhan terhadap peraturan dan polisi syarikat – Kecuaian – Sama ada YM patuh kepada terma dan syarat pembiayaan AIGSB – Keterangan yang dikemukakan – Kesannya – Pembelaan YM – Sama ada dapat diterima – Jawatan yang dipegang oleh YM di bank dan kekananan beliau – Sama ada tindakan YM merupakan suatu perlanggaran kontrak pekerjaannya dengan bank – Faktor-faktor yang harus diambil kira – Kesannya – Apa yang beliau seharusnya lakukan – Kesannya – Sama ada pertuduhan-pertuduhan ini berjaya dibuktikan oleh pihak bank terhadap beliau – Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab – Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Nor Iskandar Naini Hanifah lwn. Small Medium Enterprise Development Bank Malaysia Berhad
(Kalmizah Salleh) [2018] 1 ILR 413

SIASATAN DALAMAN

Kesilapan prosedur – Sama ada bank telah melanggar hak keadilan asasi YM semasa menjalankan SD tersebut – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada Mahkamah Perusahaan terikat dengan penemuan dan keputusan SD – Kesannya
Nor Iskandar Naini Hanifah lwn. Small Medium Enterprise Development Bank Malaysia Berhad
(Kalmizah Salleh) [2018] 1 ILR 413

Pertuduhan – Sama ada keempat-empat pertuduhan terhadap YM adalah berkaitan dengan pembayaran pinjaman AIGSB dan merupakan kesalahan-kesalahan yang sama (similar offences) – Faktor-faktor yang harus diambil kira – Kesannya
Nor Iskandar Naini Hanifah lwn. Small Medium Enterprise Development Bank Malaysia Berhad
(Kalmizah Salleh) [2018] 1 ILR 413