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LATEST CASES (ILR Issue 04 of 2019)
SUBJECT INDEX
DISMISSAL
Breach of company rules and policies – Dishonesty – Whether the
claimant had charged for additional parts on the service of customer
vehicles – Evidence adduced – Evaluation of – Effect of – His defence –
Whether acceptable – Whether the charge had been proven against him –
Factors to consider – Effect of – Whether it had justified his dismissal –
Whether dismissal without just cause and excuse
Muzamil Mahmud v. UMW Toyota Motor Sdn Bhd
(Yong Soon Ching) [2019] 2 ILR 1 
Breach of company rules and policies – Dishonesty – Whether the
claimant had charged for unrelated parts, not within the specification of
the vehicle or job done – Evidence adduced – Evaluation of – Whether he
had had full custody and control or access to his computer at all times –
What the company should have done – Whether it had acted reasonably
in dismissing him – Whether dismissal without just cause and excuse
Muzamil Mahmud v. UMW Toyota Motor Sdn Bhd
(Yong Soon Ching) [2019] 2 ILR 1
Breach of company rules and policies – Fraud/Dishonesty – Whether the
claimant had pilfered 10% of the commissions from the insurance
payments made by the customers, for her personal use – Factors to
consider – Evidence adduced – Effect of – Her explanations and defence
for the same – Whether acceptable – Whether misconduct proven by the
company – Whether the company had been justified in dismissing her
Norhaziah Ismail v. Proton Edar Sdn Bhd
(Syed Noh Said Nazir) [2019] 2 ILR 206
Breach of company rules and policies – Tarnishing the image of the
company – Claimant taking part in the assembly despite being told not to
– What his actions had shown – Whether he had been in breach of rr. 35
and 48 of the company’s Dasar Dan Tatacara Tatatertib – Evidence
adduced – Evaluation of – Effect of – His duties towards the company –
Whether he had fulfilled them – Factors to consider – Whether his actions
had amounted to serious misconduct – Whether the company’s image had
been tarnished – Assembly being held peacefully – Whether that had been
a relevant consideration – Whether his actions had justified his dismissal
– Whether dismissal without just cause and excuse
Haikhidil Jamaludin v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Paramalingam J Doraisamy) [2019] 2 ILR 223
Constructive dismissal – Demotion – Claimant transferred from his acting
position back to his original position – Reasons for the same – Whether
the company’s actions had been reasonable – Whether it had been a
demotion – Claimant not having performance issues or disciplinary
problems – Effect of – Whether the company by its actions had evinced an
intention not to be bound by the contract of employment – Factors to
consider – Evidence adduced – Whether it had amounted to a fundamental
breach that had gone to the root of his contract of employment – Whether
it had justified him walking out of his employment and claiming
constructive dismissal
Mohan Vythialingam v. Keretapi Tanah Melayu Berhad
(Syed Noh Said Nazir @ Syed Nadzir) [2019] 2 ILR 49
Insubordination – Whether the claimant, by her actions and language, had
been disrespectful of her superiors and the management of the company –
Factors to consider – Evidence adduced – Evaluation of – Effect of –
Claimant’s defence – Whether could be accepted – Actions taken by the
company to assist her – What it had shown – Whether misconduct proven
by the company – Whether it had justified her dismissal
Junainah Amran v. Aloft Kuala Lumpur Sentral (Iringan Flora Sdn Bhd)
(Noor Ruwena Mohd Nurdin) [2019] 2 ILR 14
Insubordination – Whether the claimant’s responses in relation to the
GM’s instructions to take in and train more foreign workers and open up
more floors, had been rude, insolent and insubordinate – Whether by her
responses she had challenged the authority of her immediate superior –
Factors to consider – Evidence adduced – Effect of – Whether charge
proven by the company against her – Whether her explanations could be
accepted – Whether her misconduct had justified her dismissal
Junainah Amran v. Aloft Kuala Lumpur Sentral (Iringan Flora Sdn Bhd)
(Noor Ruwena Mohd Nurdin) [2019] 2 ILR 14
Misconduct – Whether the claimant had been passing negative comments
to her team members about management’s lack of support towards her,
thereby negatively affecting morale and failing to show
the requisite respect to her superiors – Factors to consider – Evidence
adduced – Evaluation of – Effect of – Whether proven by the company –
Whether the company’s actions towards her had been reasonable –
Whether dismissal without just cause or excuse – Industrial Relations Act
1967, ss. 20(3) & 30(5)
Junainah Amran v. Aloft Kuala Lumpur Sentral (Iringan Flora Sdn Bhd)
(Noor Ruwena Mohd Nurdin) [2019] 2 ILR 14
Misconduct – Whether the claimant had indicated that she “will get to
Celine” – Factors to consider – Evidence adduced – Evaluation of – Effect
of – Claimant’s defence – Whether could be accepted – Whether proven
by the company against her – Effect of
Junainah Amran v. Aloft Kuala Lumpur Sentral (Iringan Flora Sdn Bhd)
(Noor Ruwena Mohd Nurdin) [2019] 2 ILR 14
Misconduct – Whether the claimant had pilfered 10% of the commissions
from the insurance payments made by the customers, for her personal use
– Evidence adduced – Effect of – Position held by the claimant in the
company – What her responsibilities to the company had been – What her
conduct had shown – Whether her conduct had justified her dismissal –
Factors to consider – Effect of – Whether dismissal with just cause and
excuse
Norhaziah Ismail v. Proton Edar Sdn Bhd
(Syed Noh Said Nazir) [2019] 2 ILR 206
Misconduct – Whether the claimant’s participation in the assembly had
constituted serious misconduct – Factors to consider – Evidence adduced
– Effect of – Whether the charge had been proven by the company against
him – What his actions had portrayed – Claimant’s defence – Whether
acceptable – Effect of – Whether the company had acted reasonably in
dismissing him – Whether dismissal with just cause and excuse
Haikhidil Jamaludin v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Paramalingam J Doraisamy) [2019] 2 ILR 223
EVIDENCE
Adverse inference – Whether the company’s failure to produce Ms. Lee
and/or the report on the investigation which had been conducted, should
raise an adverse inference against it – Effect of
Muzamil Mahmud v. UMW Toyota Motor Sdn Bhd
(Yong Soon Ching) [2019] 2 ILR 1
Witness – Whether the claimant had been a credible witness – Factors to
consider – Effect of
Junainah Amran v. Aloft Kuala Lumpur Sentral (Iringan Flora Sdn Bhd)
(Noor Ruwena Mohd Nurdin) [2019] 2 ILR 14
INDUSTRIAL COURT
Procedure – Action – Whether a trade dispute had existed when the
matter had been referred by the hotel to the DGIR – Factors to consider
– Evidence adduced – Effect of – Union’s actions – What it should have
done – Whether the union’s preliminary objection on this ground ought to
be allowed – Industrial Relations Act 1967, s. 18(1)
Komtar Hotel Sdn Bhd (Hotel Jen Penang) v. Kesatuan Kebangsaan
Pekerja-Pekerja Hotel, Bar Dan Restoran Semenanjung Malaysia
(Franklin Goonting) [2019] 2 ILR 123
Remedies – Punishment – Mitigating factors – Whether the claimant’s
exemplary service of less than two years, had been enough to be a
mitigating factor on her behalf – Factors to consider – Effect of – Whether
dismissal had been too harsh under the circumstances
Junainah Amran v. Aloft Kuala Lumpur Sentral (Iringan Flora Sdn Bhd)
(Noor Ruwena Mohd Nurdin) [2019] 2 ILR 14
Remedies – Reinstatement – Annual leave entitlement – Whether the
claimant had been entitled to it after she had been reinstated – Factors to
consider – Effect of
Lee Lily v. Novartis Corporation (Malaysia) Sdn Bhd
(Bernard John Kanny) [2019] 2 ILR 185
Remedies – Reinstatement – Backwages – Whether the claimant had been
entitled to her full 28 months of backwages – Factors to consider – Effect
of – Whether she had been limited by Practice Note No. 1 or the Second
Schedule of the Industrial Relations Act 1967 – Whether the Second
Schedule of the Industrial Relations Act 1967 had only applied to
compensation in lieu of reinstatement – Evaluation of the case laws and
relevant legislation – Effect of – Industrial Relations Act 1967, Second
Schedule
Lee Lily v. Novartis Corporation (Malaysia) Sdn Bhd
(Bernard John Kanny) [2019] 2 ILR 185
Remedies – Reinstatement – Bonus – Whether the claimant had been
entitled to it after she had been reinstated – Factors to consider – Effect of
Lee Lily v. Novartis Corporation (Malaysia) Sdn Bhd
(Bernard John Kanny) [2019] 2 ILR 185
Remedies – Reinstatement – HSBC retirement benefits – Whether the
claimant had been entitled to it after she had been reinstated – Factors to
consider – Effect of
Lee Lily v. Novartis Corporation (Malaysia) Sdn Bhd
(Bernard John Kanny) [2019] 2 ILR 185
Remedies – Reinstatement – Long-term service award – Whether the
claimant had been entitled to it after she had been reinstated – Factors to
consider – Effect of
Lee Lily v. Novartis Corporation (Malaysia) Sdn Bhd
(Bernard John Kanny) [2019] 2 ILR 185
Remedies – Reinstatement – Share option payments – Whether the
claimant had been entitled to it after she had been reinstated – Factors to
consider – Effect of
Lee Lily v. Novartis Corporation (Malaysia) Sdn Bhd
(Bernard John Kanny) [2019] 2 ILR 185
INTERPRETATION
Award – What benefits and allowance had been payable to the claimant
after she had been reinstated in the company – Factors to consider – Effect
of – Industrial Relations Act 1967, ss. 33(1) & the Second Schedule
Lee Lily v. Novartis Corporation (Malaysia) Sdn Bhd
(Bernard John Kanny) [2019] 2 ILR 185
TRADE DISPUTE
Collective Agreement – Terms and conditions of service – Article on long
service recognition – Company seeking to remove the article from the CA
– Whether it ought to be allowed – Factors to consider – Evidence
adduced – Effect of – Whether the company had had the financial capacity
to pay
Kesatuan Pekerja-pekerja Airod Sdn Bhd v. Airod Sdn Bhd
(Franklin Goonting) [2019] 2 ILR 136
Collective Agreement – Terms and conditions of service – Article on
salary adjustment – Whether the union’s claim for a 12% salary
adjustment had been reasonable – Factors to consider – Evidence adduced
– Effect of – Whether the union’s claim ought to be allowed
Kesatuan Pekerja-pekerja Perusahaan Logam v. George Kent (Malaysia) Berhad
(Mohd Dusuki Mokhtar) [2019] 2 ILR 72
Collective Agreement – Terms and conditions of service – Article on
salary structure and salary adjustment – Company seeking to change the
word “shall” in the article to the word “may” – Whether it ought to be
allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Pekerja-pekerja Airod Sdn Bhd v. Airod Sdn Bhd
(Franklin Goonting) [2019] 2 ILR 136
Collective Agreement – Terms and conditions of service – Article on
salary structure and salary adjustment – Whether the union’s claim for an
8% salary adjustment had been reasonable – Factors to consider –
Evidence adduced – Effect of – Company’s financial capacity – Whether
the union’s claim ought to be allowed
Kesatuan Pekerja-pekerja Airod Sdn Bhd v. Airod Sdn Bhd
(Franklin Goonting) [2019] 2 ILR 136
Collective Agreement – Terms and conditions of service – Article on the
absorption into the NADI Group of Companies – Union seeking for the
terms and conditions of the Collective Agreement to follow the absorbed
or transferred employees to the “new” company – Whether it had been
reasonable and conducive to industrial harmony – Factors to consider –
Effect of
Kesatuan Pekerja-pekerja Airod Sdn Bhd v. Airod Sdn Bhd
(Franklin Goonting) [2019] 2 ILR 136
Collective Agreement – Terms and conditions of service – Article on the
minimum and maximum salaries and the payment of increments –
Whether the union’s claim for a RM200 upwards revision on the
minimum and maximum salaries and a 10% increment on existing wages
across the board, had been fair – Factors to consider – Evidence adduced
– Effect of – Whether the company had had the financial capacity to pay
– Whether the union’s claim had been reasonable and ought to be allowed
Kesatuan Pekerja-pekerja Perusahaan Logam v. George Kent (Malaysia) Berhad
(Mohd Dusuki Mokhtar) [2019] 2 ILR 72
Collective Agreement – Terms and conditions of service – Article on the
payment of bonus – Company having a practice of paying out a two-month
contractual bonus to its employees for the past 30 years – Whether it had
been reasonable, on the part of the company, to stop such a practice –
Factors to consider – Effect of
Kesatuan Pekerja-pekerja Perusahaan Logam v. George Kent (Malaysia) Berhad
(Mohd Dusuki Mokhtar) [2019] 2 ILR 72
Collective Agreement – Terms and conditions of service – Whether the
hotel could unilaterally impose the top-up structure on employees in order
to comply with the Minimum Wages Order 2012 – Factors to consider –
Evidence adduced – Effect of – Spirit and intent of the collective
bargaining structure as enshrined in the IRA – What the hotel should have
done instead – Whether its application ought to be allowed
Komtar Hotel Sdn Bhd (Hotel Jen Penang) v. Kesatuan Kebangsaan
Pekerja-Pekerja Hotel, Bar Dan Restoran Semenanjung Malaysia
(Franklin Goonting) [2019] 2 ILR 123
Collective Agreement – Whether a trade dispute had existed, thus
justifying the convening of the assembly by the union – Factors to consider
– Whether the assembly had in effect been a strike and/or an unlawful
picket – Evidence adduced – Effect of – What the union should have done
instead – Industrial Relations Act 1967, ss. 18(1) & 40(1)
Haikhidil Jamaludin v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Paramalingam J Doraisamy) [2019] 2 ILR 223
INDEKS PERKARA
KETIDAKPATUHAN
Perjanjian Kolektif – Pihak responden telah memberikan penyelarasan
khas gaji kepada 21 orang jururawat terpilih, tanpa mendapatkan
persetujuan daripada pihak kesatuan terlebih dahulu – Sama ada tindakan
pihak responden telah melanggar peruntukan perkara 3.1 PB ke-12 –
Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan –
Kesannya – Pembelaan pihak responden – Sama ada dapat diterima
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan
Swasta lwn. Assunta Hospital
(Siti Salwa Musa) [2019] 2 ILR 64
PERTIKAIAN PERDAGANGAN
Perjanjian Bersama – Terma dan syarat perkhidmatan – Sama ada
tindakan responden memberikan penyelarasan khas gaji kepada 21 orang
jururawat terpilih, tanpa mendapatkan persetujuan daripada pihak
kesatuan terlebih dahulu, telah menimbulkan satu pertikaian perdagangan
– Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan
– Kesannya
Kesatuan Pekerja-pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan
Swasta lwn. Assunta Hospital
(Siti Salwa Musa) [2019] 2 ILR 64
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