LATEST CASES (ILR Issue 03 of 2019)

SUBJECT INDEX

CONTRACT OF EMPLOYMENT

Terms and conditions – Notice of termination – No reasons stated for the claimant's termination except "Non-Confirmation" – Whether the claimant had been deemed a permanent employee of the company – Whether the company's action of dismissing him had been unfair – Whether his dismissal had been with just cause and excuse
Aruneswaran Samynathan v. Uzma Engineering Sdn Bhd
(Augustine Anthony) [2019] 1 ILR 535

Terms and conditions – Notice of termination – Suspension letter, DI proceedings and termination letter issued by three different parties – Whether it had invalidated his termination from employment – Factors to consider – Effect of – Relationship between the parties – What the claimant should have done
Jamalis Jaafar v. Bistro & Theatre Restaurant Sdn Bhd
(Paramalingam J Doraisamy) [2019] 1 ILR 619

DISMISSAL

Attendance – Lateness – Whether the claimant had been persistently late to work – Evidence adduced – Effect of – Company failing to question or reprimand him on it – What it had shown – Whether his actions had been condoned by the company – Factors to consider – Effect of – Whether this allegation had been proven against him – Whether his dismissal had been with just cause and excuse
Sudhave Venugopal v. Northstar Frontier Sdn Bhd
(Sumathi Murugiah) [2019] 1 ILR 460

Attendance – Truancy – Whether the claimant had left the premises during office hours – Evidence adduced – Effect of – Claimant's explanations – Whether acceptable – Whether his misconduct had justified his dismissal – What the company should have done instead – Whether dismissal too harsh under the circumstances – Whether dismissal without just cause and excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Sudhave Venugopal v. Northstar Frontier Sdn Bhd
(Sumathi Murugiah) [2019] 1 ILR 460

Breach of company rules and policies – Conflict of interest – Claimant setting up a sole proprietorship without declaring it to the company/ companies – Whether her actions had been in breach of her employment contract, the Handbook and the COC – Perusal and evaluation of the documentary evidence – Factors to consider – Effect of – Whether she had been aware of the relevant clauses – Claimant's defence – Whether could be accepted – Whether her actions had constituted serious misconduct – Whether her actions had warranted her dismissal – Factors to consider – Whether her dismissal had been without just cause and excuse
Siti Noorbaiyah Abdul Malek v. UKM Holdings Sdn Bhd / Unipeq Sdn Bhd
(Rajeswari Karupiah) [2019] 1 ILR 587

Breach of company rules and policies – Conflict of interest – Whether the claimant, by her actions, had diverted the company's business and fraudulently misappropriated its funds and resources – Evidence adduced – Effect of – Whether it had tantamounted to a criminal breach of trust – Whether actual loss needed to be proven for conflict of interest matters – Factors to consider – Effect of – Whether her actions had justified her dismissal
Siti Noorbaiyah Abdul Malek v. UKM Holdings Sdn Bhd / Unipeq Sdn Bhd
(Rajeswari Karupiah) [2019] 1 ILR 587

Breach of company rules and policies – Medical leave – Whether the claimant had taken excessive medical leave – Factors to consider – Evidence adduced – Effect of – What his entitlement to medical leave had been – Whether the charge had been proven by the company against him – Whether it had justified his dismissal
Sudhave Venugopal v. Northstar Frontier Sdn Bhd
(Sumathi Murugiah) [2019] 1 ILR 460

Breach of company rules and policies – Theft – Items belonging to the company found in the claimant's locker – Whether the claimant had been in possession of company property without authorisation – Whether he had been in breach of the company's Book of Discipline – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the misconduct had been proven against him – Whether it had constituted serious misconduct – His explanations and defence – Whether substantiated by the evidence – Whether could be accepted – Whether it had justified his dismissal – Whether dismissal without just cause and excuse
Suhaimi Hj Aziz v. Malaysian Airlines
(P Iruthayaraj D Pappusamy) [2019] 1 ILR 505

Breach of company rules and policies – Violence at the workplace – Whether the claimant had been physically and verbally violent towards Aleemin – Factors to consider – Evidence adduced – Effect of – Whether proven by the company – Whether it had been a serious misconduct – Claimant's defence – Whether acceptable and proven by the evidence – Whether dismissal without just cause and excuse
Jamalis Jaafar v. Bistro & Theatre Restaurant Sdn Bhd
(Paramalingam J Doraisamy) [2019] 1 ILR 619

Constructive dismissal – Demotion – Whether the claimant had been constructively dismissed by the company – Evidence adduced – Effect of – Claimant's actions – What it had shown – Effect of
Jamalis Jaafar v. Bistro & Theatre Restaurant Sdn Bhd
(Paramalingam J Doraisamy) [2019] 1 ILR 619

Insubordination – Claimant refusing to accept her suspension letter from COW1 – Reasons for the same – Whether by her actions she had been wilfully insubordinate – Factors to consider – Effect of
Siti Noorbaiyah Abdul Malek v. UKM Holdings Sdn Bhd / Unipeq Sdn Bhd
(Rajeswari Karupiah) [2019] 1 ILR 587

Insubordination – COW2 ordering the claimant to withdraw his defamation notice against Capt Masri – Whether the order had been within the scope of his employment with the company – Factors to consider – Effect of – Whether his right to issue the legal notice to Capt Masri had arisen under his contract of employment – Whether it had been a proper order which he had needed to comply with
Muzafar Muaazam Shah Othman v. Weststar Aviation Services Sdn Bhd
(Rajendran Nayagam) [2019] 1 ILR 472

Insubordination – Whether the claimant's action of refusing to withdraw the defamation notice against Capt Masri and apologise to him, had constituted insubordination on his part, of the company's reasonable and lawful order – Factors to consider – Evidence adduced – Effect of – Company's actions towards him – What it had shown – What it should have done instead
Muzafar Muaazam Shah Othman v. Weststar Aviation Services Sdn Bhd
(Rajendran Nayagam) [2019] 1 ILR 472

Insubordination – Whether the claimant, by the language she had used in the various channels of communication, had been disrespectful of her superior – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether proven by the company – Whether she had committed an act which had been inconsistent with her duties as an employee – Whether it had justified her dismissal
Adriana Abu v. Mass Rapid Transit Corporation Sdn Bhd
(Bernard John Kanny) [2019] 1 ILR 549

Insubordination – Whether the claimant had been insubordinate and wilfully disobedient of lawful and reasonable orders or procedures – Evidence adduced – Evaluation of – Effect of – Whether the allegation had been proven by the company against him – Whether it had justified his dismissal – Whether his dismissal had been with just cause and excuse
Sudhave Venugopal v. Northstar Frontier Sdn Bhd
(Sumathi Murugiah) [2019] 1 ILR 460

Misconduct – Claimant caught by the Pekan Religious Authority for khalwat – Whether it had constituted serious misconduct – Factors to consider – Evidence adduced – Effect of – Whether the charge had been proven against him – Whether his actions had affected the company's good name and affected the public perception of it negatively – Whether it had justified his dismissal
Mohd Bukhari Abu Hassan v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 1 ILR 523

Misconduct – Claimant sending out an invoice to an existing client of UNIPEQ, under her sole proprietorship, without disclosing the same to the company/companies – Whether it had been a clear violation of her terms of employment, the COC and the Handbook – Factors to consider – Evidence adduced – Effect of – Her explanations – Whether could be accepted – Her position in the company – Whether it had warranted her dismissal – Whether dismissal without just cause or excuse
Siti Noorbaiyah Abdul Malek v. UKM Holdings Sdn Bhd / Unipeq Sdn Bhd
(Rajeswari Karupiah) [2019] 1 ILR 587

Misconduct – Claimant terminated for misconduct – What employers should take into consideration before dismissing an employee – Whether those factors had been taken into account by the companies in the instant case – What it should have done – Whether the claimant's dismissal had been done fairly and in compliance with the rules of natural justice – Effect of
Toh May Fook v. Menang Development (M) Sdn Bhd
(Rajendran Nayagam) [2019] 1 ILR 449

Misconduct – Whether misconduct had been proven by the company – Evidence adduced – Effect of – Company's actions in relation to misconduct – What it had shown – Whether the claimant's dismissal had been carried out with just cause and excuse
Aruneswaran Samynathan v. Uzma Engineering Sdn Bhd
(Augustine Anthony) [2019] 1 ILR 535

Misconduct – Whether the claimant had displayed misconduct in carrying out his duties – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had successfully been proven against him – Whether the companies had acted reasonably in dismissing him – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Toh May Fook v. Menang Development (M) Sdn Bhd
(Rajendran Nayagam) [2019] 1 ILR 449

Misconduct – Whether the claimant had entered into a fee "parking" arrangement with UNIDO, without declaring it to the companies or COW3 – Factors to consider – Evidence adduced – Effect of – Her explanations – Whether could be accepted – What her actions had shown – Her position in the company – What she should have done instead – Whether it had warranted her dismissal – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Siti Noorbaiyah Abdul Malek v. UKM Holdings Sdn Bhd / Unipeq Sdn Bhd
(Rajeswari Karupiah) [2019] 1 ILR 587

Notice of termination – Forced resignation – Whether the probationer claimant had been forced to resign – Factors to consider – Evidence adduced – Effect of – Claimant's conduct – What it had shown – Claimant's position and seniority – Whether he had been dismissed – Whether dismissal without just cause and excuse
How Ting Hiang v. UOA Development Berhad
(Anna Ng Fui Choo) [2019] 1 ILR 480

Performance – Poor performance – Whether the claimant had performed poorly – Factors to consider – Evidence adduced – Effect of – Whether it had been proven by the company against him – Actions taken by the company towards him – What it had shown – Whether reasonable – What it should have done – Whether dismissal without just cause and excuse
Aruneswaran Samynathan v. Uzma Engineering Sdn Bhd
(Augustine Anthony) [2019] 1 ILR 535

Performance – Poor performance – Whether the claimant had been a poor performer – Evidence adduced – Evaluation of – Effect of – Company's actions towards him – What it had shown – Whether poor performance proven against the claimant – Whether his dismissal had been justified and carried out with just cause and excuse
Sudhave Venugopal v. Northstar Frontier Sdn Bhd
(Sumathi Murugiah) [2019] 1 ILR 460

Performance – Unsatisfactory performance – Claimant allegedly failing to perform – Whether proven by the company – Evidence adduced – Evaluation of – Effect of – Whether the claimant had been informed of her shortcomings – Whether she had been given sufficient opportunity to improve – Conduct and actions of the company towards her – Effect of – Whether the company's actions had been reasonable – Whether it had acted capriciously or arbitrarily when it had decided not to confirm her – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Adriana Abu v. Mass Rapid Transit Corporation Sdn Bhd
(Bernard John Kanny) [2019] 1 ILR 549

Probationer – Claimant not confirmed at the point he had been dismissed – Whether he had remained a probationer at the material time – Factors to consider – Evidence adduced – Effect of – Company's actions towards him – What it had shown – Whether the company, by its own actions, had treated the claimant as a confirmed employee – Effect of
Aruneswaran Samynathan v. Uzma Engineering Sdn Bhd
(Augustine Anthony) [2019] 1 ILR 535

DOMESTIC INQUIRY

Absence of – Whether the company's failure to conduct a DI, as per the company's Book of Discipline, had resulted in his unlawful termination – Factors to consider – Whether the claimant had been given a reasonable opportunity to be heard – Effect of – Whether the provisions in the Book of Discipline had been mere guidelines
Suhaimi Hj Aziz v. Malaysian Airlines
(P Iruthayaraj D Pappusamy) [2019] 1 ILR 505

Procedural impropriety – Whether procedural defects, if any, during the DI had invalidated his dismissal – Powers of the IC
Jamalis Jaafar v. Bistro & Theatre Restaurant Sdn Bhd
(Paramalingam J Doraisamy) [2019] 1 ILR 619

EVIDENCE

Burden of proof – Whether discharged by the claimant in this case – Evidence adduced – Effect of
How Ting Hiang v. UOA Development Berhad
(Anna Ng Fui Choo) [2019] 1 ILR 480

Burden of proof – Whether discharged by the company – Effect of
Muzafar Muaazam Shah Othman v. Weststar Aviation Services Sdn Bhd
(Rajendran Nayagam) [2019] 1 ILR 472

Witness – Conflicting evidence – CLW2 giving conflicting evidence – Whether her testimony had to be treated with caution – Factors to consider – Whether her evidence had been impartial – Effect of
How Ting Hiang v. UOA Development Berhad
(Anna Ng Fui Choo) [2019] 1 ILR 480

INDUSTRIAL COURT

Jurisdiction – Claimant abandoning the remedy of reinstatement during the hearing – Whether the Industrial Court had ceased to have jurisdiction to hear the matter – Factors to consider – Effect of – Whether the claim ought to be dismissed on this ground alone – Industrial Relations Act 1967, s. 20
Mohd Bukhari Abu Hassan v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 1 ILR 523

Jurisdiction – Claimant failing to plead reinstatement in his Statement of Case – Whether it had been fatal to his case – Factors to consider – Evaluation of case laws – Effect of – Whether the IC had jurisdiction to hear the matter – Industrial Relations Act 1967, s. 20(1)
Jamalis Jaafar v. Bistro & Theatre Restaurant Sdn Bhd
(Paramalingam J Doraisamy) [2019] 1 ILR 619

Procedure – Pleadings – Companies not complying with rules of pleadings – Effect of – Industrial Court Rules 1967, r. 10(3)(i)
Toh May Fook v. Menang Development (M) Sdn Bhd
(Rajendran Nayagam) [2019] 1 ILR 449

Procedure – Pleadings – Companies raising issues not pleaded – Whether those new issues ought to be deliberated upon – Factors to consider – Effect of
Toh May Fook v. Menang Development (M) Sdn Bhd
(Rajendran Nayagam) [2019] 1 ILR 449

Remedies – Punishment – Proportionality of punishment imposed on the claimant – Whether his past disciplinary record with it ought to be taken into account – Factors to consider – Effect of
Mohd Bukhari Abu Hassan v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 1 ILR 523

INDEKS PERKARA

PERTIKAIAN PERDAGANGAN

Perjanjian Kolektif – Terma dan syarat – Perkara 36(4) Perjanjian Bersama dan kl. 4.1.7.1 Buku Panduan Associate (Bukan Eksekutif) – Sama ada pihak responden telah mengingkari peruntukan-peruntukan tersebut – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Tindakan responden terhadap UW3 – Sama ada relevan
Kesatuan Pekerja-Pekerja Honda Malaysia Sdn Bhd lwn. Honda Malaysia Sdn Bhd
(Siti Salwa Musa) [2019] 1 ILR 494