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LATEST CASES (ILR Issue 5 of 2015) SUBJECT INDEX ADMINISTRATIVE LAW Judicial review - Certiorari - Application to quash Minister's decision not to refer representations to Industrial Court - Whether it was for Minister to delve into merits of case - Whether principle of estoppel applicable in industrial adjudication - Applicant's acceptance of compensation for separation of employment - Whether applicant could seek remedy of reinstatement from Industrial Court - Matters arising in conciliation proceedings - Whether could be used during adjudication proceedings under s. 54 Industrial Relations Act 1967 - Whether representations under s. 20(1) Industrial Relations Act 1967 perverse, frivolous and vexatious - Whether Minister's decision unreasonable in Wednesbury sense and liable to be quashed DISMISSAL Absenteeism - Whether the claimants had been absent without leave - Evidence adduced - Whether proven by the company - Whether it had amounted to a serious misconduct - Whether it had justified the claimants' dismissals - Factors to consider - Whether dismissal without just cause and excuse Breach of company rules and policies - Conflict of interest with the company's business - Claimant allegedly carrying on private business as advisor to his client from India whilst still in the employment of the company - Whether proven by the company - Evidence adduced - Effect of - Claimant's explanations for the same - Whether could be accepted - Whether this misconduct had been established against him - Whether the company had successfully discharged its burden of proof - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Negligence - Claimant not checking the location of PSM - Whether he had been aware that he had been required to do a check - Effect of - Position held by the claimant in Sazarice - Whether the charge had been proven against him - Whether it had been a serious misconduct - Factors to consider - Whether his dismissal had been justified - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Negligence - Claimant not checking the wholesale or trading license of PSM - Whether he had been aware that he had been required to conduct a check - Evidence adduced - Effect of - Claimant's explanations for the same - Whether could be accepted - Factors to consider - What the claimant's role in Sazarice had been - Effect of - Whether the charge had been proven by the company - Whether dismissal without just cause and excuse Breach of company rules and policies - Negligence - Whether he had been irresponsible in sending back some foreign workers to their countries - Whether it had been a business decision - Evidence adduced - Effect of - Explanation of the claimant - Whether could be accepted - Whether the charge had been proven against him - Whether dismissal without just cause and excuse Breach of company rules and policies - Negligence - Whether he had failed to advise senior management of the subsidiary company culminating in it purchasing a vehicle on hire-purchase which had been encumbered - Whether proven by the company - Evidence adduced - Effect of - Whether his dismissal had been without just cause and excuse Breach of company rules and policies - Negligence - Whether he had failed to monitor the receivables and the credit management of all customers of the subsidiary company which had resulted in it suffering financial implications - Evidence adduced - Effect of - Explanation of the claimant - Whether could be accepted - Whether the charge had been proven against him - Whether dismissal without just cause and excuse Breach of company rules and policies - Negligence - Whether he had failed to report certain advance activity to senior management of the company which had caused losses and a loss of credibility to the subsidiary company - Charge failing to specify the type of advance activity he had been required to report to senior management - Whether the misconduct had been proven against him - Evidence adduced - Effect of Breach of company rules and policies - Negligence - Whether the claimant had failed to secure trade facilities timely for the subsidiary company - Evidence adduced - Evaluation of - Whether this charge had been proven by the company - Position held by the claimant in the company - His explanations - Whether could be accepted - Factors to consider - Effect of - Whether his conduct had been a breach of his fiduciary duties to the company - Whether his dismissal had been without just cause and excuse Constructive dismissal - Threats - Whether the claimant had been told to resign or else - Evidence adduced - Effect of - Whether the claimant had been constructively dismissed - Conduct of the company towards her - Whether it had been malicious - Company failing to give any reasons for her dismissal - Effect of - Whether it had amounted to a fundamental breach going to the root of her contract of employment - Whether the employer-employee relationship had been destroyed - Factors to consider - Whether dismissal without just cause and excuse Misconduct - Claimants fraudulently signing off on the Daily Attendance/Overtime Sheet and making overtime claims - Whether proven by the company - Evidence adduced - Effect of - Claimants' explanations - Whether acceptable - Whether it had been the common practice of the company to leave the workplace earlier than scheduled and to make overtime claims - Factors to consider - Whether the claimants' conduct had destroyed the employer-employee relationship - Whether the company had been justified in dismissing them - Whether dismissals without just cause and excuse Misconduct - Whether the claimants had punched in cards belonging to other people - Evidence adduced - Effect of - Whether the company had reasonable grounds to believe that they had committed the misconduct - Whether dismissals without just cause and excuse Notice of termination - Forced resignation - Whether the claimant had been forced to resign - Factors to consider - Evidence adduced - Effect of Probationer - Whether the claimant had been a probationer - Claimant put on probation for a period of three months, subsequently extended for a further three months - Claimant failing to improve despite being given the opportunity - Effect of - Company's actions towards him - Whether reasonable - Whether dismissal without just cause and excuse Retrenchment - Redundancy - Claimant hired to do research for the project - Project subsequently being abandoned - Whether his position had become redundant - Claimant's job functions in the company - Whether he had been suitable to be placed in any of the other subsidiary companies - Factors to consider - Effect of - Whether the company had been under an obligation to so place him - Factors to consider - Evidence adduced - Perusal of the claimant's contract of employment - Whether the retrenchment had been carried out bona fide Victimisation - Whether the claimants had been singled out or victimised by the company - Evidence adduced - Effect of - Whether dismissal without just cause and excuse DOMESTIC INQUIRY Charges - Whether the charges brought against the claimant had been defective for lack of material particulars - Factors to consider - Evidence adduced - Evaluation of - Effect of Procedural impropriety - Whether the DI had been properly conducted and valid - Factors to consider - Effect of EVIDENCE Burden of proof - Whether discharged by the claimant in this case - Evidence adduced Documentary evidence - Claimants failing to adduce any evidence to support their contentions that they had obtained permission to do what they had done - Effect of - Whether their contentions had been afterthoughts Documentary evidence - Whether the claimant had been a workman - Factors to consider - Claimant petitioning to wind-up the company - Whether that had brought the employer-employee relationship to an end - Conduct of the claimant - Whether becoming of a workman - Factors to consider - Effect of - Whether the remedy under s. 20 of the Industrial Relations Act 1967 had been available to him Witness - Failure to call - Whether they had failed to call crucial witnesses to prove their case - Factors to consider - Whether it had been to their detriment Witness - Whose testimony had been more believable - Union's witness as against respondent company's witness - Factors to consider - Length of service of each one in the company - Whose testimony would be accepted INDUSTRIAL COURT Jurisdiction - Threshold jurisdiction - Whether possessed by the Industrial Court - Factors to consider - Effect of Remedies - Compensation - Claimant not paid compensation for his retrenchment - Whether he had been entitled to it - Employment contract silent on the matter - Claimant not an employee under the provisions of the Employment Act 1955 - Effect of - Employment Act 1955 & Employment (Termination and Lay-Off Benefits) Regulations 1980 Remedies - Punishment - Doctrine of proportionality of punishment - Whether applied here - Factors to consider - Collective Agreement silent on punch card misconducts - What that meant - Whether the punishment of dismissal had been too harsh under the circumstances - Effect of LABOUR LAW Employment - Collective agreement - Trade dispute - Whether requirements under s. 30(4) Industrial Relations Act 1967 considered - Whether company's financial status taken into account when awarding salary adjustment - Whether salary levels in similar industries considered - Whether Industrial Court committed an error of law Industrial Court - Award - Compensation in lieu of reinstatement - Employee attained age of retirement - Whether employee could be reinstated - Whether award of compensation could be allowed when reinstatement could not be ordered - Whether employee must be in position to be reinstated - Industrial Relations Act 1967, ss. 20(1) & 30(5) Industrial Court - Award - Trade dispute - Collective agreement - Appeal against decision of High Court in quashing award of Industrial Court - Whether requirements under s. 30(4) Industrial Relations Act 1967 considered - Whether company's financial status taken into account when awarding salary adjustment - Whether salary levels in similar industries considered - Whether Industrial Court committed an error of law Industrial Court - Reference by Minister - Industrial Relations Act 1967, s. 20 - Minister's refusal to refer representations to Industrial Court - Judicial review - Application for - Whether it was for Minister to delve into merits of case - Whether principle of estoppel applicable in industrial adjudication - Applicant's acceptance of compensation for separation of employment - Whether applicant could seek remedy of reinstatement from Industrial Court - Matters arising in conciliation proceedings - Whether could be used during adjudication proceedings under s. 54 Industrial Relations Act 1967 - Whether representations under s. 20(1) Industrial Relations Act 1967 perverse, frivolous and vexatious - Whether Minister's decision unreasonable in Wednesbury sense and liable to be quashed NON-COMPLIANCE Collective Agreement - Article on working hours - Whether it had been complied with by the respondent - Perusal of the article - Factors to consider - Effect of - Whether it had included the morning and evening breaks and the prayer time on Friday - Past practice of the company - Provision in the old collective agreement - Whether there had been Collective Agreement - Article on working hours - Whether the respondent company had imposed a new roster system unilaterally - Factors to consider - Effect of - Whether there had been non-compliance by the respondent of the said collective agreement WORDS AND PHRASES 'compensation in lieu of reinstatement' - Meaning of - Whether compensation a replacement or substitute or alternative to reinstatement - Industrial Relations Act 1967, s. 20(1) INDEKS PERKARA KETERANGAN Saksi - Percanggahan keterangan yang material - Sama ada YM merupakan seorang saksi yang boleh dipercayai - Faktor-faktor yang harus diambil kira – Kesannya PEMBUANGAN KERJA Ketidakpatuhan terhadap peraturan dan polisi syarikat - Kecurian - YM dituduh membawa keluar harta syarikat tanpa kebenaran - Sama ada berjaya dibuktikan oleh syarikat atas tahap imbangan kebarangkalian - Keterangan yang dikemukakan - Kesannya - Penjelasan YM - Sama ada dapat diterima - Tindakan syarikat - Sama ada munasabah - Rekod perkhidmatan YM dengan syarikat - Sama ada pembuangan kerja YM dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) Salah laku - Sama ada YM telah berbohong semasa sesi SD - Keterangan yang dikemukakan - Kesannya - Pembelaan YM - Sama ada dapat diterima - Sama ada salah laku tersebut berjaya dibuktikan oleh syarikat - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) Salah laku - YM berbohong semasa sesi SD - Sama ada ianya merupakan satu salahlaku yang serius - Sama ada mewajarkan responden membuang YM dari kerjanya - Faktor-faktor yang harus diambil kira - Jawatan yang dipegang oleh YM - Perkhidmatan beliau dengan syarikat - Sama ada harus diambil kira - Kesannya - Sama ada pembuangan kerjanya telah dilakukan secara adil dan bersebab PERTIKAIAN PERDAGANGAN Artikel berkenaan dengan bonus - Sama ada ianya merupakan suatu pembayaran kontraktual - Faktor-faktor yang harus diambil kira - Sama ada keadaan kewangan syarikat harus diambil kira – Kesannya Artikel berkenaan dengan cuti tahunan - Sama ada pekerja harus mengambil cuti tahunan apabila syarikat ditutup untuk menjalankan stock take - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada ianya merupakan suatu tindakan yang adil kepada pekerja - Apa yang seharusnya dilakukan oleh syarikat Artikel berkenaan dengan elaun lain dan insentif - Sama ada bayaran COLA harus diberikan oleh syarikat - Faktor-faktor yang harus diambil kira - Tindakan syarikat yang lain - Sama ada merupakan tindakan seorang majikan yang prihatin dan mengambil berat tentang pekerja-pekerjanya – Kesannya Artikel berkenaan dengan tempoh, pengubahsuaian dan penamatan perjanjian - Bilakah tarikh perjanjian kolektif tersebut harus berkuatkuasa - Faktor-faktor yang harus diambil kira - Peruntukan-peruntukan Akta Perhubungan Perusahaan 1967 - Kesannya - Akta Perhubungan Perusahaan 1967, ss. 14(2)(b) & 30(7) SIASATAN DALAMAN Penemuan SD - Sama ada pemberhentian kerja YM berdasarkan alasan-alasan yang berbeza dari pertuduhan asal - Penelitian alasan-alasan yang baru - Sama ada alasan-alasan baru ini merupakan pertuduhan baru - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada YM telah diberi peluang untuk membela diri - Sama ada syarikat berjaya membuktikan salahlaku tersebut terhadap YM - Keterangan yang dikemukakan - Kesannya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan berasas |
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