LATEST CASES (ILR Issue 5 of 2014)

SUBJECT INDEX

DISMISSAL

Breach of company rules and policies - Bribery - Whether the claimant had bribed her subordinates - Evidence adduced - Effect of - Whether proven by the organisation - Claimant's defence - Whether tenable - Whether dismissal without just cause and excuse
Saraspathy T Sambasivam v. Yayasan Sultan Idris Shah
(Jalaldin Hussain) [2014] 2 ILR 394

Breach of company rules and policies - Fraud - Claimant making a false taxi claim - Whether proven by the company - Evidence adduced - Effect of - Claimant's explanations - Whether it could exculpate him - Whether it had constituted a major misconduct - Factors to consider - Whether the company had behaved reasonably in dismissing him
Dennis Ujoh v. Amanah Saham Nasional Berhad
(Gabriel Gumis) [2014] 2 ILR 340

Breach of company rules and policies - Fraud/Dishonesty - Whether the claimant had demanded transportation fees against the organisation's policy - Evidence adduced - Effect of - Whether proven by the organisation - Claimant's defence - Whether tenable - Whether dismissal without just cause and excuse
Saraspathy T Sambasivam v. Yayasan Sultan Idris Shah
(Jalaldin Hussain) [2014] 2 ILR 394

Breach of company rules and policies - Fraud/Dishonesty - Whether the claimant had issued receipts for monies collected by her - Evidence adduced - Effect of - Claimant's defence - Whether it had been tenable based on the evidence - Whether the organisation had acted reasonably in thinking the claimant had been guilty of the charge - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Saraspathy T Sambasivam v. Yayasan Sultan Idris Shah
(Jalaldin Hussain) [2014] 2 ILR 394

Breach of company rules and policies - Fraud/Dishonesty - Whether the claimant had used the organisation's vehicles against its policy - Evidence adduced - Effect of - Whether proven by the organisation - Whether she had been aware of the policy - Claimant's defence - Whether tenable - Whether dismissal without just cause and excuse
Saraspathy T Sambasivam v. Yayasan Sultan Idris Shah
(Jalaldin Hussain) [2014] 2 ILR 394

Breach of company rules and policies - Negligence - Claimant allowing the buying of stationery on credit - Whether it had been against the company's guidelines - Perusal of the guidelines - Whether the claimant had known of the guidelines - Factors to consider - Position held by the claimant in the company - Whether the charge had been proven by the company - Evidence adduced - Effect of - Claimant's explanations - Whether it fully exculpated him - What he should have done
Dennis Ujoh v. Amanah Saham Nasional Berhad
(Gabriel Gumis) [2014] 2 ILR 340

Breach of company rules and policies - Theft - Whether proven by the company - Factors to consider - Effect of - Whether it had been a serious misconduct - Position held by the claimant - Whether his dismissal had been justified - Whether dismissal without just cause and excuse
Ahmad Ernizam Sulaiman v. Air Asia Berhad
(Sulaiman Ismail) [2014] 2 ILR 327

Breach of company rules and policies - Theft - Whether the claimant had misappropriated the company monies - What the company had to prove - Whether it had reasonable grounds for believing that he had taken the monies - Evaluation of the evidence adduced - Claimant's defence - Whether tenable - Effect of - Whether the company's actions had been reasonable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ahmad Ernizam Sulaiman v. Air Asia Berhad
(Sulaiman Ismail) [2014] 2 ILR 327

Breach of company rules and policies - Unauthorised receipt of gratification - Whether the claimant had unauthorised monies deposited into her account - Evidence adduced - Effect of - Whether proven by the organisation - Claimant's defence - Whether tenable - Whether dismissal without just cause and excuse
Saraspathy T Sambasivam v. Yayasan Sultan Idris Shah
(Jalaldin Hussain) [2014] 2 ILR 394

Constructive dismissal - Benefits - Commissions - Claimant not paid his commissions over a long period of time - Claimant waiting two years before claiming constructive dismissal - Whether he had waived his right due to the long lapse of time - Conduct of the claimant during the two year period - Effect of - Whether the company had admitted to owing him the monies - Company promising to settle overdue amount but not keeping word - Whether it had amounted to a breach of a fundamental term of the claimant's contract of employment - Effect of - Whether the claimant had been constructively dismissed - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Egamparan SVE Vaithilingam v. Scientech Asia Holdings Sdn Bhd
(Rosenani Abd Rahman) [2014] 2 ILR 299

Constructive dismissal - Salary - Claimant not paid salary for six months - Whether proven by the claimant - Evidence adduced - Evaluation of - Effect of - Whether admitted by the company - Testimony of company witnesses - Whether the claimant had delayed in asking for payment - Whether he had waived his right to claim it now - Claimant's conduct - Whether the company had been aware that it had owed him monies - Effect of - Conduct of the company - Whether it had amounted to a fundamental breach going to the root of the contract of employment - Whether the claimant had been constructively dismissed - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Egamparan SVE Vaithilingam v. Scientech Asia Holdings Sdn Bhd
(Rosenani Abd Rahman) [2014] 2 ILR 299

Misconduct - Claimant failing to hand over the petty cash when he went on transfer - Reasons for the same - Duration of the delay - Whether reasonable - Whether proven by the company - Evidence adduced - Effect of - Company's past practice in relation to petty cash - Whether it had contributed to the problem - Claimant's explanations - Whether it fully exculpated him - What he should have done
Dennis Ujoh v. Amanah Saham Nasional Berhad
(Gabriel Gumis) [2014] 2 ILR 340

Misconduct - Claimant failing to hand over the thumb drive and calculator when he went on transfer - Reasons for the same - Duration of the delay - Whether reasonable - Whether proven by the company - Evidence adduced - Effect of - Claimant's explanations - Whether it fully exculpated him - What he should have done
Dennis Ujoh v. Amanah Saham Nasional Berhad
(Gabriel Gumis) [2014] 2 ILR 340

Misconduct - Claimant issuing a false certificate in support of his application for a post in the company - Claimant admitting to it on various occasions - Effect of - Whether misconduct proven by the company - Evidence adduced - Effect of - Whether it had constituted a breach of the fiduciary relationship between an employer and employee
Kamaruddin Beedin v. Indah Water Konsortium Sdn Bhd
(Fredrick Indran XA Nicholas) [2014] 2 ILR 276

Misconduct - Claimant issuing a false certificate in support of his application for a post in the company - Whether the company had suffered loss - Evidence adduced - Effect of - Whether that had been a relevant consideration - Whether the company had been reasonable in dismissing the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Kamaruddin Beedin v. Indah Water Konsortium Sdn Bhd
(Fredrick Indran XA Nicholas) [2014] 2 ILR 276

Misconduct - Claimant using the hotel's vehicle for non-hotel purposes - Whether proven by the company - Evidence adduced - Effect of - Whether the company had justifiable grounds for dismissing him - Whether dismissal without just cause and excuse
Iftekhar Ahmad Abdul Majid v. Hotel Regent Kuala Lumpur
(Eddie Yeo Soon Chye) [2014] 2 ILR 381

Misconduct - Claimant working outside the hotel whilst on medical leave - Whether proven by the company - Evidence adduced - Effect of - Bare denials by the claimant - Whether the company had successfully discharged its burden of proof - Effect of - Whether the company had reasonable grounds for believing that the claimant had committed the misconduct - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Iftekhar Ahmad Abdul Majid v. Hotel Regent Kuala Lumpur
(Eddie Yeo Soon Chye) [2014] 2 ILR 381

Misconduct - Whether the claimant had taken back the wheelchair from the client against the organisation's policy - Evidence adduced - Effect of - Whether proven by the organisation - Claimant's defence - Whether tenable - Whether dismissal without just cause and excuse
Saraspathy T Sambasivam v. Yayasan Sultan Idris Shah
(Jalaldin Hussain) [2014] 2 ILR 394

Misconduct - Whether the claimant had withheld without authority and or approval the driving license of COW2 - Evidence adduced - Effect of - Whether proven by the organisation - Whether dismissal without just cause and excuse
Saraspathy T Sambasivam v. Yayasan Sultan Idris Shah
(Jalaldin Hussain) [2014] 2 ILR 394

Performance - Unsatisfactory performance - Claimant allegedly failing to perform - Whether proven by the company - Evidence adduced - Evaluation of - Effect of - Claimant demoted by the company unilaterally - Whether the company's actions had been reasonable - Whether the company's actions had tantamounted to wrongful conduct - What the company should have done - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mohd Faisal Mohd Zain v. AKN Construction (M) Sdn Bhd
(Eddie Yeo Soon Chye) [2014] 2 ILR 287

Performance - Unsatisfactory performance - Whether proven by the company - Evidence adduced - Evaluation of - Whether it had been sufficient to discharge the company's burden of proof - Effect of - Whether the claimant had been aware of what had been expected of him - Whether the company's actions had been reasonable under the circumstances - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Shamsuddin Abdul Kadir v. Percetakan Nasional Malaysia Berhad
(Fredrick Indran XA Nicholas) [2014] 2 ILR 256

Probationer - Claimant was a probationer when dismissed - Claimant dismissed a week after extension of his probationary period - No reasons given by the company - Whether the company's actions had been bona fide - Factors to consider - Company's actions towards the claimant - Effect of
Mohd Faisal Mohd Zain v. AKN Construction (M) Sdn Bhd
(Eddie Yeo Soon Chye) [2014] 2 ILR 287

Probationer - Whether the claimant had performed unsatisfactorily during his probation period - The company's actions towards him - Whether the company's actions towards him had been procedurally fair - What the company should have done - Whether the claimant had been warned and given sufficient opportunity to improve - Evaluation of the evidence - Effect of
Shamsuddin Abdul Kadir v. Percetakan Nasional Malaysia Berhad
(Fredrick Indran XA Nicholas) [2014] 2 ILR 256

DOMESTIC INQUIRY

Procedural impropriety - Whether existed - Factors to consider - Whether the decision of the DI had been valid
Saraspathy T Sambasivam v. Yayasan Sultan Idris Shah
(Jalaldin Hussain) [2014] 2 ILR 394

EVIDENCE

Burden of proof - Whose to satisfy for constructive dismissal - Whether discharged by the claimant - Evidence adduced - Effect of
Egamparan SVE Vaithilingam v. Scientech Asia Holdings Sdn Bhd
(Rosenani Abd Rahman) [2014] 2 ILR 299

Documentary evidence - Findings of the inquiry panel - Whether accurate - Factors to consider
Dennis Ujoh v. Amanah Saham Nasional Berhad
(Gabriel Gumis) [2014] 2 ILR 340

Witness - Conflicting evidence - Claimant and COW4 giving conflicting testimony - Whose testimony had been more believable - Factors to consider - Demeanour of the witnesses in court - Effect of
Dennis Ujoh v. Amanah Saham Nasional Berhad
(Gabriel Gumis) [2014] 2 ILR 340

INDEKS PERKARA

KETERANGAN

Beban bukti - Sama ada responden mempunyai alasan yang munasabah untuk mempercayai bahawa YM telah melakukan kesalahan tersebut - Keterangan yang dikemukakan – Kesannya
Sukumaran Nadason lwn. Eaton Electric Switchgear Sdn Bhd
(Rasidah Chik) [2014] 2 ILR 366

Keterangan dokumentari - Percanggahan keterangan di pihak responden - Sama ada percanggahan tersebut adalah material - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada salahlaku tersebut berjaya dibuktikan oleh responden
Sukumaran Nadason lwn. Eaton Electric Switchgear Sdn Bhd
(Rasidah Chik) [2014] 2 ILR 366

PEMBUANGAN KERJA

Ketidakpatuhan terhadap peraturan dan polisi syarikat responden - Kecurian - YM didakwa mencuri kepingan tembaga - Sama ada berjaya dibuktikan oleh syarikat responden atas tahap imbangan kebarangkalian - Keterangan yang dikemukakan - Kesannya - Tindakan syarikat responden - Sama ada mengikuti prinsip keadilan asasi - Faktor- faktor yang harus diambil kira - Apa yang seharusnya dilakukan oleh syarikat responden - Sama ada pembuangan kerja YM dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Sukumaran Nadason lwn. Eaton Electric Switchgear Sdn Bhd
(Rasidah Chik) [2014] 2 ILR 366

Ketidakpatuhan terhadap polisi syarikat - Kecuaian - Sama ada YM mengarahkan seorang welder yang tidak bertauliah menjalankan kerja-kerja pematerian - Keterangan yang dikemukakan - Kesannya - Sama ada tindakan YM tersebut bercanggah dengan peraturan syarikat - Penelitian peraturan-peraturan syarikat - Sama ada salah laku tersebut berjaya dibuktikan oleh syarikat - Keterangan yang dikemukakan - Kesannya - Sama ada YM cuai dalam menjalankan tugasnya - Sama ada tindakan syarikat menamatkan perkhidmatannya munasabah - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada YM telah dibuang kerja tanpa alasan yang adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Supparau Nagarajan lwn. FMC Wellhead Equipment Sdn Bhd
(Roslan Mat Nor) [2014] 2 ILR 241