| BULLETIN 05/2016 | |
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LATEST CASES (ILR Issue 05 of 2016) SUBJECT INDEX ADMINISTRATIVE LAW Judicial review - Decision of Industrial Court ('IC') - IC found dismissal of employee without just and valid excuse - Whether IC considered circumstances of case in totality - Whether evidence of witnesses subjected to detailed analysis - Whether IC had jurisdiction to depart from punishment meted out by employer CONTRACT OF EMPLOYMENT Terms and conditions - Retirement age - Claimant's employment letter not containing a clause on the age of retirement - Retirement age stated in the company's Staff Manual - Whether the Staff Manual had bound the claimant - Factors to consider - Effect of Terms and conditions - Retirement age - Whether the claimant had a reasonable expectation to work beyond his retirement age - Evidence adduced - Effect of Terms and conditions - Retirement age - Whether the claimant had been aware of the retirement age in the Staff Manual - Factors to consider - Claimant using the Staff Manual to pay retrenchment benefits to the employees of the company - Claimant also enjoying benefits provided under it - Effect of Terms and conditions - Retirement age - Whether the company had been reasonable and fair in introducing the retirement age in its Staff Manual - Reasons why it had been introduced - Effect of - Minimum Retirement Age Act 2012 Type of - Fixed-term contract - Whether the claimant had been a permanent employee - Evidence adduced - Factors to consider - Effect of Type of - Fixed-term contract - Whether the claimant had been employed under a genuine fixed-term contract - Perusal of the claimant's contract of employment - Evidence adduced - Effect of - No break in the claimant's employment with the company - Intention of the company - Whether the company's actions of terminating him based on the fact that his contract had expired had constituted a dismissal - Whether dismissal without just cause and excuse DISMISSAL Absenteeism - Whether the claimant had been absent without leave - Evidence adduced - Evaluation of - Whether proven by the company - Whether the company had been justified in dismissing him - 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 - Claimant allegedly approving and paying out very high commissions, which had exceeded the company's net profit - Whether proven by the company - Evidence adduced - Effect of - Whether he had been aware that it had been against the company's policy - His explanations - Whether could be accepted - Whether the claimant's conduct had been serious - Whether it had been severe enough to warrant dismissal - Whether it had justified the company dismissing him - Factors to consider - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Dishonesty - Claimant approving and paying out very high commissions, which had exceeded the company's net profit - Whether it had constituted misconduct - Perusal of the agreement - Evidence adduced - Whether his actions had amounted to an abuse of the trust placed in him by the company - Claimant a pioneer employee - Whether his dismissal had been justified under the circumstances Breach of company rules and policies - Negligence - Claimant allegedly negligent in the performance of his duties towards the company - Whether charges proven by the company - Evidence adduced - Effect of - Company's actions towards him - Whether it had been acceptable - Whether the claimant had been constructively dismissed - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Negligence - Whether the claimant had been guilty of recurrent and unmitigated negligence in carrying out his duties - Evaluation of the evidence adduced - Claimant's defence - Whether acceptable - Whether he had been aware of the correct procedure to follow - Whether the company had behaved reasonably towards him - Whether his dismissal had been justified - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, Breach of company rules and policies - Negligence - Whether the claimant had been negligent in carrying out his duties - Factors to consider - Evidence adduced - Effect of - Whether charge proven by the company - Whether it had been a serious misconduct - Position and length of service of the claimant with the company - Claimant's attitude - Whether his dismissal had been justified - Whether dismissal without just cause and excuse Breach of company rules and policies - Violence at the workplace - Claimant and his colleague involved in a fight - Whether it had been material to consider who had started the fight - Factors to consider - Evidence adduced - Effect of Breach of company rules and policies - Violence at the workplace - Company dismissing the claimant - Whether it had acted fairly towards him - Company's actions towards Rohani - What it had shown - Effect of Breach of company rules and policies - Violence at the workplace - Whether the claimant had assaulted his colleague at the work place - Evidence adduced - Effect of - Whether the charges had been proven by the company - Whether it had been a serious misconduct - Claimant's defence - Whether acceptable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Constructive dismissal - Demotion - Claimant transferred to Bangkok Jam as the Senior Restaurant Manager - Whether it had amounted to a demotion from his position as the Personal Assistant to the Executive Director - Evidence adduced - Effect of - Whether it had amounted to a breach of a fundamental term of his contract of employment - Whether it had amounted to a repudiation of his contract of employment - Whether it had been sufficient to claim constructive dismissal - Whether the claimant had delayed in taking action - Factors to consider - Effect of Insubordination - Claimant failing to complete the ISO Forms as instructed by the company - Whether that had amounted to insubordinate behaviour - Factors to consider - Effect of Misconduct - Claimant sending a Technical Report to a third party without his immediate superior's knowledge or approval - Whether proven by the company - Evidence adduced - Effect of - Whether it had been a serious misconduct - Claimant's explanations - Whether acceptable - Whether it had warranted his dismissal - Whether dismissal without just cause and excuse Misconduct - Whether the claimant's Technical Report had been full of false, inaccurate, misleading and mischievous statements - Evidence adduced - Effect of - Whether proven by the company - Impact of the claimant's conduct on the company - Whether it had been serious enough to warrant his dismissal - Factors to consider - Whether his dismissal had been without just cause and excuse 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 his shortcomings - Whether he had been given sufficient opportunity to improve - Conduct and actions of the company towards him - Effect of - Claimant's conduct - Whether the company's actions had been reasonable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Probationer - Whether the claimant had been a probationer at the time of his dismissal - Factors to consider - Effect of - Claimant alleging that he had been given a confirmation letter which had subsequently been withdrawn by the company - Whether proven by him - Whether it had been an afterthought Retrenchment - Redundancy - Claimant accepting the severance package on a without prejudice basis - What that had meant - Whether that had precluded him from bringing an unfair dismissal claim - Factors to consider - Effect of Retrenchment - Redundancy - Selection for redundancy - Company offering him alternative employment - What that had meant - Whether the company had to prove that his position had been genuinely and truly redundant first - Factors to consider - Effect of Retrenchment - Redundancy - Selection for redundancy - Whether the claimant's position had become redundant - Whether his job functions had ceased to exist - Factors to consider - Evidence adduced - Effect of - Claimant accepting the severance package on a without prejudice basis - What that had meant - Whether the claimant's retrenchment had been carried out bona fide - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Retrenchment - Reorganisation - Whether there had been a necessity to restructure and reorganise the Lubricant Business Division - Evidence adduced - Factors to consider - Effect of - Whether a redundancy situation had existed in the company - Whether the claimant's retrenchment had been carried out bona fide - Whether dismissal without just cause and excuse DOMESTIC INQUIRY Absence of - Whether the claimant had been given an opportunity to answer the charges against him - Evidence adduced - Effect of - Whether the rules of natural justice had been complied with - Whether the failure to conduct a DI had been fatal to the proceedings Procedural impropriety - Whether the DI conducted had conformed to the rules of natural justice - Factors to consider - Effect of Procedural impropriety - Whether the DI proceedings had complied with the rules of natural justice - Factors to consider EVIDENCE Adverse inference - Company failing to call Chiew Kok Hin - Whether he had been an important witness - Factors to consider - Whether an adverse inference ought to be drawn against the company Adverse inference - Company failing to call the person in charge of HR & Admin - Whether she had been a material witness - Whether the failure to call her had amounted to the withholding of material evidence - Factors to consider - Effect of - Whether an adverse inference ought to be drawn against the company - Evidence Act 1950, s. 114(g) Adverse inference - Whether the company had called all its material witnesses to prove its case against the claimant - Factors to consider - Whether an adverse inference ought to be drawn against it for its failure to produce all its material witnesses - Evidence Act 1950, s. 114(g) Burden of proof - Whether discharged by the claimant in proving that he had had a legitimate expectation to work beyond the retirement age Burden of proof - Whose burden to prove that a redundancy situation had existed Documentary evidence - Findings of the DI - Whether it had been perverse - Factors to consider - Whether a prima facie case had been made out against the claimant Witness - Credibility - Whether the claimant had been a credible witness - Factors to consider - Whether the evidence adduced by him had been substantiated by his witness - Effect of Witness - Credibility - Whether the witnesses for the company had been credible witnesses - Factors to consider - Whether the company had proven its case on a balance of probabilities - Effect of LABOUR LAW Employment - Dismissal - Employee sanctioned by way of warning letter - Whether subsequent dismissal based on same misconduct amounted to being penalised twice - Whether allowed by law - Whether proven misconduct by employee deserved punishment of dismissal - Whether dismissal with just and valid excuse |
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