LATEST CASES (ILR Issue 4 of 2020)

SUBJECT INDEX

CONTRACT OF EMPLOYMENT

Abandonment – Whether the claimant had abandoned his contract of employment with the company – Factors to consider – Evidence adduced – Effect of – Whether he had been dismissed by the company – Whether dismissal without just cause and excuse
Prabaharan Malayalam v. Hiewa Auto Gallery (Larkin) Sdn Bhd
(Sumathi Murugiah) [2020] 2 ILR 27

Terms and conditions – Determination of who the claimant's employer had been – Factors to consider – Evidence adduced – Effect of – Perusal of the IOBA agreement – Intention of the parties – Whether the claimant had been an employee of the company – Whether she had brought this matter against the wrong company
Carmen Christine Fong v. BHP Billiton Shared Services Malaysia Sdn Bhd
(Teoh Chin Chong) [2020] 2 ILR 165

DISMISSAL

Breach of company rules and policies – Employee Handbook – Company failing to follow the provisions in it – Effect of – Whether the Employee Handbook had bound the company – Factors to consider – Evaluation of the evidence – Effect of
Tan Cheng Chuan v. UHY Tax Advisory Sdn Bhd
(Syed Noh Said Nazir) [2020] 2 ILR 138

Breach of company rules and policies – Negligence – Irregularities found in POs that were issued – Whether proven by the company against him – Claimant's responsibilities as Head – Whether discharged accordingly – What he should have done – Company not suffering financial loss – Effect of – Whether his actions had warranted his dismissal – Factors to consider – What the company should have done instead – Whether his dismissal had been without just cause and excuse
Prabaharan Malayalam v. Hiewa Auto Gallery (Larkin) Sdn Bhd
(Sumathi Murugiah) [2020] 2 ILR 27

Breach of company rules and policies – Negligence – No written SOP on issuance of PO by the company – Effect of – Whether it had been important – What the company should do moving forward
Prabaharan Malayalam v. Hiewa Auto Gallery (Larkin) Sdn Bhd
(Sumathi Murugiah) [2020] 2 ILR 27

Breach of company rules and policies – Sexual harassment – Whether the claimant had sexually harassed COW2/Ms. S – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the charges had been proven by the company – Claimant denying the charges and proffering his version of events – Whether could be accepted – Whether supported by the evidence – Whether his conduct had justified his dismissal – Whether dismissal without just cause and excuse
Tee Soon Kiat v. AIA Bhd
(Noor Ruwena Dato' Mohd Nurdin) [2020] 2 ILR 65

Breach of company rules and policies – Violence – Whether the claimant had assaulted COW6 – Factors to consider – Evidence adduced – Effect of – Whether the charge had been proven against him – Whether it had constituted major misconduct warranting his immediate dismissal – Whether the punishment of dismissal had been justified under the circumstances – Factors to consider – Claimant's explanations – Whether acceptable and proven by the evidence – Evaluation of the evidence – Whether his misconduct had been serious – Whether his dismissal had been carried out with just cause and excuse
Izzat Khurshahid Fathol Karib v. Toyota Tsusho (M) Sdn Bhd
(Augustine Anthony) [2020] 2 ILR 121

Breach of company rules and policies – Violence at the workplace – Whether the claimant had behaved in an unruly and violent manner towards his fellow employee, COW2 – Factors to consider – Evidence adduced – Effect of – Whether the charge had been proven by the company – Whether the existence of serious bodily harm had been a relevant consideration – Whether the fact that no physical contact had taken place between the parties had been a material consideration – Whether the claimant's actions had constituted serious misconduct – Claimant's defence – Whether acceptable and proven by the evidence – Whether his past misconduct could be considered when determining the punishment to impose on him – Whether dismissal without just cause and excuse
Hii King v. Sarawak Energy Bhd & Anor
(Gulam Muhiaddeen Abdul Aziz) [2020] 2 ILR 185

Breach of company rules and policies – Violence at the workplace – Whether the claimant had behaved in an unruly and violent manner towards his fellow employee, COW2 – Effect of – Whether his past misconduct could be taken into consideration when determining his punishment – What his past actions had shown – Claimant's service with the company – How he should have behaved instead
Hii King v. Sarawak Energy Bhd & Anor
(Gulam Muhiaddeen Abdul Aziz) [2020] 2 ILR 185

Constructive dismissal – Change in job functions – Whether the claimant's change in job functions, i.e., the removal of the four departments under him, had been a fundamental breach of his contract of employment – Factors to consider – Evidence adduced – Effect of – How the company had gone about it – Company's conduct towards him – What it had shown – Whether the claimant had been humiliated and degraded by such action – Whether he had either had prior notice or been consulted about such a decision beforehand – Effect of – Whether his claim for constructive dismissal ought to be allowed
Tan Kok Hwee v. Ipmuda Berhad
(Syed Noh Said Nazir) [2020] 2 ILR 1

Constructive dismissal – Claimant asked to vacate his room without notice – Reasons for the same – Whether justified by the company – Intention of the company in doing so – Evidence adduced – Evaluation of – Whether it had been intended to distress, humiliate and anguish him – Whether the claimant had been victimised – Whether it had justified him walking out of his employment claiming constructive dismissal
Tan Kok Hwee v. Ipmuda Berhad
(Syed Noh Said Nazir) [2020] 2 ILR 1

Constructive dismissal – Demotion – Whether there had to be a reduction in salary in order to prove demotion – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the claimant had effectively been demoted
Tan Kok Hwee v. Ipmuda Berhad
(Syed Noh Said Nazir) [2020] 2 ILR 1

Constructive dismissal – Victimisation – Whether the claimant had instigated CLW2 to take legal action against the company – Whether proven by the company against him – Evidence adduced – Effect of – Whether the claimant's actions in advising CLW2 to obtain independent legal advice had, in fact, been correct
Tan Kok Hwee v. Ipmuda Berhad
(Syed Noh Said Nazir) [2020] 2 ILR 1

Misconduct – Claimant sexually harassing and molesting COW2/Ms. S – Whether proven by the company against him – Factors to consider – Evidence adduced – Effect of – Whether it had amounted to serious misconduct – Whether it had justified his dismissal – Company's actions towards him – Whether the company had had any sinister intentions against him or had wanted to get rid of him – Effect of
Tee Soon Kiat v. AIA Bhd
(Noor Ruwena Dato' Mohd Nurdin) [2020] 2 ILR 65

Misconduct – Whether gross non-performance had amounted to misconduct – Factors to consider – Evidence adduced – Effect of – What the company should have done – Whether the claimant's dismissal, although not actuated by mala fide intent, had been carried out with just cause and excuse
Tan Chee Tiam v. Schneider Electric Industries (M) Sdn Bhd
(Noor Hayati Mat) [2020] 2 ILR 48

Misconduct – Whether the claimant had failed to escalate the matter to his superiors until a week after the incident – Evidence adduced – Effect of – Whether the charge had been proven against him – Claimant's position in the company – What he should have done – What his actions had shown
Tee Soon Kiat v. AIA Bhd
(Noor Ruwena Dato' Mohd Nurdin) [2020] 2 ILR 65

Misconduct – Whether the claimant had hurt COW6 and committed disorderly conduct, by being involved in a fight on the company's premises – Factors to consider – Evidence adduced – Effect of – Claimant's defence – Whether could be accepted – Whether the charges had been proven against him – Whether his misconduct had been serious enough to warrant his immediate dismissal
Izzat Khurshahid Fathol Karib v. Toyota Tsusho (M) Sdn Bhd
(Augustine Anthony) [2020] 2 ILR 121

Misconduct – Whether the claimant had not been vigilant in updating his immediate superior and/or seeking his advice on his tasks, failed to attend to client queries presented on the LBS-UHY WhatsApp Group chat, failed to provide research findings and concrete solutions that had been required with regards to the IRR Calculation, failed to provide a summary on advisory provided vide the telephone discussion with LBS Bina Group with regard to Capital Good Adjustment and failed to provide justification to his answers to the client, re the back charging of medical expenses – Factors to consider – Evidence adduced – Effect of – Whether charges proven by the company against him – Whether dismissal without just cause and excuse
Tan Cheng Chuan v. UHY Tax Advisory Sdn Bhd
(Syed Noh Said Nazir) [2020] 2 ILR 138

Performance – Poor performance – Claimant put on PIP twice – How the PIP process should be administered
Tan Chee Tiam v. Schneider Electric Industries (M) Sdn Bhd
(Noor Hayati Mat) [2020] 2 ILR 48

Performance – Poor performance – What needed to be proven in order to justify dismissal on the ground of poor performance – Whether the claimant had been incompetent – Meaning of incompetence – Whether declining performance had amounted to incompetence – Effect of – Whether the claimant had been dismissed without just cause and excuse
Tan Chee Tiam v. Schneider Electric Industries (M) Sdn Bhd
(Noor Hayati Mat) [2020] 2 ILR 48

Performance – Poor performance – Whether the claimant had been a gross non-performer – Factors to consider – Evidence adduced – Effect of – Whether it had been proven by the company against him – Claimant's defence – Whether could be accepted – Whether the company's actions towards him had been reasonable – What it should have done – Whether dismissal without just cause and excuse
Tan Chee Tiam v. Schneider Electric Industries (M) Sdn Bhd
(Noor Hayati Mat) [2020] 2 ILR 48

Performance – Poor performance – Whether the claimant had been a poor performer – Factors to consider – Evaluation of the evidence – Effect of – Whether he had been told of his shortcomings, given warnings and provided the opportunity to improve – Effect of – Whether poor performance proven by the company against him – Whether the company, by its actions, had victimised him – Effect of
Tan Cheng Chuan v. UHY Tax Advisory Sdn Bhd
(Syed Noh Said Nazir) [2020] 2 ILR 138

Retrenchment – Restructuring – Whether the company had undergone a restructuring exercise – Factors to consider – Evidence adduced – Effect of – Whether it had been carried out bona fide – Whether the company's actions had seriously damaged the relationship of trust and confidence between the parties
Tan Kok Hwee v. Ipmuda Berhad
(Syed Noh Said Nazir) [2020] 2 ILR 1

DOMESTIC INQUIRY

Absence of – Employee Handbook provisions not followed by the company – What it meant – Whether the claimant had been dismissed based on suspicion rather than evidence – Whether his dismissal had been arbitrary and without just cause and excuse
Tan Cheng Chuan v. UHY Tax Advisory Sdn Bhd
(Syed Noh Said Nazir) [2020] 2 ILR 138

EVIDENCE

Adverse inference – Company failing to call two witnesses – Whether there had been suppression of evidence – Factors to consider – Effect of – Whether an adverse inference ought to be drawn against it – Evidence Act 1950, s. 114(g)
Hii King v. Sarawak Energy Bhd & Anor
(Gulam Muhiaddeen Abdul Aziz) [2020] 2 ILR 185

Burden of proof – Whether discharged by the company, on a balance of probabilities – Evidence adduced – Effect of
Hii King v. Sarawak Energy Bhd & Anor
(Gulam Muhiaddeen Abdul Aziz) [2020] 2 ILR 185

Burden of proof – Whether discharged by the company to show that the restructuring had been carried out bona fide – Evidence adduced – Effect of – Whether the claimant had been constructively dismissed
Tan Kok Hwee v. Ipmuda Berhad
(Syed Noh Said Nazir) [2020] 2 ILR 1

Documentary evidence – Admissibility – Claimant attempting to adduce “fresh evidence” after the conclusion of the hearing – Whether it ought to be allowed – Factors to consider – Effect of
Tee Soon Kiat v. AIA Bhd
(Noor Ruwena Dato' Mohd Nurdin) [2020] 2 ILR 65

Documentary evidence – Admissibility of – Company seeking to introduce a letter, one working day before the trial – Whether it ought to be admitted into evidence – Factors to consider – Effect of – Whether it had been an afterthought
Tan Cheng Chuan v. UHY Tax Advisory Sdn Bhd
(Syed Noh Said Nazir) [2020] 2 ILR 138

Witness – Credibility – The claimant's evidence against the company's and the complainant's – “He said-she said” – Which version had been more probable – Factors to consider – Effect of
Tee Soon Kiat v. AIA Bhd
(Noor Ruwena Dato' Mohd Nurdin) [2020] 2 ILR 65

INDUSTRIAL COURT

Jurisdiction – Claimant's employer was a company incorporated in Australia – Whether the Industrial Court had the jurisdiction to hear the matter
Carmen Christine Fong v. BHP Billiton Shared Services Malaysia Sdn Bhd
(Teoh Chin Chong) [2020] 2 ILR 165

Remedies – Punishment – Whether dismissal had been grossly excessive, harsh and disproportionate to the nature of the charges against him – Factors to consider – Effect of – What the company should have done instead
Tan Cheng Chuan v. UHY Tax Advisory Sdn Bhd
(Syed Noh Said Nazir) [2020] 2 ILR 138

Remedies – Punishment – Whether the punishment of dismissal had been too harsh under the circumstances for the misconduct of the issuance of POs – Factors to consider – Effect of – Claimant no past disciplinary record with the company – What the company should have done instead
Prabaharan Malayalam v. Hiewa Auto Gallery (Larkin) Sdn Bhd
(Sumathi Murugiah) [2020] 2 ILR 27