BULLETIN 04/2020

LATEST CASES (ILR Issue 3 of 2020)

SUBJECT INDEX

DISMISSAL

Breach of company rules and policies – Medical leave – Claimant going on holiday whilst on medical leave – Whether it had been a serious misconduct – Factors to consider – Evidence adduced – Effect of – Claimant’s defence – Whether could be accepted – What the claimant’s actions had shown – Whether she had been guilty of malingering – Meaning of malingering – Whether it had justified the company dismissing her – Whether dismissal without just cause and excuse
Dalia Ash’ari v. Malaysia Airports (Niaga) Sdn Bhd
(Paramalingam J Doraisamy) [2020] 1 ILR 472 cljlaw labourlaw

Breach of company rules and policies – Medical leave – Purpose of medical leave – Whether it had been up to her to decide what she could, or could not do, depending on the gravity of her illness or injury – Whether she had clearly betrayed the trust and confidence that had been reposed in her by the company – Whether there had been any mala fide intention on the part of the company – Factors to consider – Effect of – Whether the claimant’s misconduct had been serious enough to warrant her dismissal
Dalia Ash’ari v. Malaysia Airports (Niaga) Sdn Bhd
(Paramalingam J Doraisamy) [2020] 1 ILR 472 cljlaw labourlaw

Breach of company rules and policies – Negligence – Whether the claimant had carried out work without a work permit – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had proven the charge on a balance of probability – What its actions had shown – Claimant’s defence – Whether could be accepted – Company not taking action for 13 months – Whether it had condoned the claimant’s actions – Whether the claimant’s dismissal had been carried out with just cause and excuse
Mohamed Hisham Mohamed Redzuan v. Tenaga Nasional Berhad
(Mariani Ghani) [2020] 1 ILR 449 cljlaw labourlaw

Breach of company rules and policies – Non-compliance with company’s weight management policy – Whether the claimant had failed to comply with the company’s weight management policy – Factors to consider – Evidence adduced – Effect of – Rationale for the introduction of the policy – Whether justifiable – Whether objected to by the claimant at the material time – Effect of – Whether the misconduct had been proven against her – Whether it had justified her dismissal
Ina Meliesa Hassim v. Malaysia Airlines Berhad
(Syed Noh Said Nazir) [2020] 1 ILR 602 cljlaw labourlaw

Breach of company rules and policies – Non-compliance with company’s weight management policy – Whether the policy had been imposed with mala fide intent and had discriminated against the claimant – Factors to consider – Evidence adduced – Effect of – Claimant’s defence – Whether it could be accepted – Claimant’s years of service with the company – Whether her conduct had justified her dismissal – Whether dismissal without just cause and excuse
Ina Meliesa Hassim v. Malaysia Airlines Berhad
(Syed Noh Said Nazir) [2020] 1 ILR 602 cljlaw labourlaw

Misconduct – Claimant admitting to carrying out work without a work permit – Whether he had failed to follow the company’s Life-Saving Rules – Evidence adduced – Factors to consider – Effect of – Purpose of the LSR – Company’s implementation of the LSR – Whether it had been less than ideal – Evidence adduced – Effect of – Whether the company had exercised disparity of punishment in relation to the charge – What it had shown – Whether the claimant’s dismissal had been carried out without just cause or excuse
Mohamed Hisham Mohamed Redzuan v. Tenaga Nasional Berhad
(Mariani Ghani) [2020] 1 ILR 449 cljlaw labourlaw

Misconduct – Whether the claimant had conducted garbage collection services and failed to pay the company its commissions for 14 years – Factors to consider – Evidence adduced – Effect of – Claimant’s explanations – Whether could be accepted – Whether his misconduct had been detrimental to the economic interests of the company – Whether his dishonest conduct had justified his dismissal – Whether dismissal with just cause and excuse
Vegentheran Poopalam v. Kudrat Maritime Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2020] 1 ILR 485 cljlaw labourlaw

Misconduct – Whether the claimant had provided inaccurate information to existing customers of the company – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had been proven by the company – Claimant’s defence – Whether could be accepted – Effect of – Whether the company had acted reasonably in dismissing him – Whether he had been made a scapegoat – Whether dismissal without just cause and excuse
David Anthony Reyes v. Gapima Sdn Bhd
(Nor Afizah Hanum Mokhtar) [2020] 1 ILR 501 cljlaw labourlaw

Notice of termination – Resignation – Whether the claimant had resigned voluntarily – Whether there had, in effect, been no dismissal – Whether his claim ought to be dismissed on this ground alone – Evidence adduced – Evaluation of – Effect of
Vegentheran Poopalam v. Kudrat Maritime Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2020] 1 ILR 485 cljlaw labourlaw

Performance – Unsatisfactory performance – Whether proven by the company – Factors to consider – Evidence adduced – Effect of – Whether the reason for his termination had remained unclear – Whether he had been dismissed by the company – Whether dismissal without just cause and excuse
Muhammad Ishak Ibrahim v. Kool FM Radio Sdn Bhd
(Augustine Anthony) [2020] 1 ILR 579 cljlaw labourlaw

EVIDENCE

Burden of proof – Whether discharged by the company in proving that the claimant’s dismissal had been carried out with just cause and excuse – Evidence adduced – Effect of
Muhammad Ishak Ibrahim v. Kool FM Radio Sdn Bhd
(Augustine Anthony) [2020] 1 ILR 579 cljlaw labourlaw

Documentary evidence – Whether the claimant had been an employee/ workman of the company – Factors to consider – Evidence adduced – Effect of – Degree of control that the company had exercised over him – Effect of – Whether his role with the company had been an integral one – Whether he had been hired by the company under a contract for service or a contract of service – Evaluation of the evidence – Effect of – Industrial Relations Act 1967, s. 2
Muhammad Ishak Ibrahim v. Kool FM Radio Sdn Bhd
(Augustine Anthony) [2020] 1 ILR 579 cljlaw labourlaw

Witness – Conflicting evidence – Whether COW1 had been a credible witness – Evidence adduced – Effect of
Mohamed Hisham Mohamed Redzuan v. Tenaga Nasional Berhad
(Mariani Ghani) [2020] 1 ILR 449 cljlaw labourlaw

INDUSTRIAL COURT

Procedure – Action – Whether the IC Chairman should recuse himself from hearing this matter – Factors to consider – Evidence adduced – Effect of – Whether there had been a ‘real danger of bias’
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Paramalingam J Doraisamy) [2020] 1 ILR 594 cljlaw labourlaw

Remedies – Backwages – What would be a fair amount to award – Factors to consider – Effect of
Muhammad Ishak Ibrahim v. Kool FM Radio Sdn Bhd
(Augustine Anthony) [2020] 1 ILR 579 cljlaw labourlaw

TRADE DISPUTE

Collective Agreement – Terms and conditions of service – Article on deduction of union dues – Whether the Federal Court case of Non-Metallic Products had bound the Court – Whether the status quo of the article ought to be maintained – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v. Assunta Hospital
(Noor Ruwena Mohd Nurdin) [2020] 1 ILR 510 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on duration, modification and termination of agreement – Whether the hospital’s proposal ought to be allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v. Assunta Hospital
(Noor Ruwena Mohd Nurdin) [2020] 1 ILR 510 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on implementation – Determination of who the CA had applied to and the date of payment of monetary benefits under it – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v. Assunta Hospital
(Noor Ruwena Mohd Nurdin) [2020] 1 ILR 510 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on medical benefits – Whether the hospital’s proposal to limit it to Malaysia should be allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v. Assunta Hospital
(Noor Ruwena Mohd Nurdin) [2020] 1 ILR 510 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on on-call allowance – Whether the union’s proposal to double the rates ought to be allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v. Assunta Hospital
(Noor Ruwena Mohd Nurdin) [2020] 1 ILR 510 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on other allowance and HSA – Whether the union’s proposal ought to be allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v. Assunta Hospital
(Noor Ruwena Mohd Nurdin) [2020] 1 ILR 510 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on overtime – Whether the hospital’s proposal to cap it would be implemented – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v. Assunta Hospital
(Noor Ruwena Mohd Nurdin) [2020] 1 ILR 510 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on salary adjustment and arrears of pay – What would be a fair percentage to award – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v. Assunta Hospital
(Noor Ruwena Mohd Nurdin) [2020] 1 ILR 510 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on salary structure – Whether it ought to be increased – Factors to consider – Evidence adduced – Effect of – Whether there had been a necessity to review the Rates of Increment
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v. Assunta Hospital
(Noor Ruwena Mohd Nurdin) [2020] 1 ILR 510 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on sick leave – Whether the hospital’s proposal had been unbalanced in view of the provisions of the Employment Act 1955 – Factors to consider – Evidence adduced – Effect of – Employment Act 1955, s. 60F
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v. Assunta Hospital
(Noor Ruwena Mohd Nurdin) [2020] 1 ILR 510 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on uniform – Whether the union’s proposal for two additional uniforms a year and a revised laundry allowance ought to be allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v. Assunta Hospital
(Noor Ruwena Mohd Nurdin) [2020] 1 ILR 510 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on union recognition and scope of representation – Purpose of this article – Evidence adduced – Effect of – Whether the union’s proposal ought to be allowed – Whether the Court had been bound by the Federal Court case of Non-Metallic Products
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v. Assunta Hospital
(Noor Ruwena Mohd Nurdin) [2020] 1 ILR 510 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on working hours – Determination of working hours – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v. Assunta Hospital
(Noor Ruwena Mohd Nurdin) [2020] 1 ILR 510 cljlaw labourlaw
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