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LATEST CASES (ILR Issue 6 of 2018)
SUBJECT INDEX
ADMINISTRATIVE LAW
Judicial review – Application for – Applicant dismissed from employment on grounds of making fraudulent claims and forged emails – Industrial Court found applicant’s dismissal with just cause and excuse – High Court allowed applicant’s judicial review application and found applicant had been wrongfully dismissed – Appeal against findings of High Court – Whether High Court erred in substituting findings of Industrial Court
Multimedia Development Corporation Sdn Bhd v. Clarence Augustine Tee Teck Huo
(David Wong Dak Wah, Hamid Sultan Abu Backer, Hasnah Mohammed Hashim JJCA) [2018] 2 ILR 401
Public officer – Disciplinary action – Disciplinary Committee (‘DC’) – Disciplinary action against Deputy CEO of Companies Commission of Malaysia – Recommendation by DC to Minister for revocation and dismissal from service – Appointment as Deputy CEO by Minister – Whether Minister has power only to revoke appointment – Whether only DC could dismiss Deputy CEO – Whether Minister had actual or delegated power to dismiss – Whether dismissal void – Companies Commission of Malaysia Act 2001, ss. 6, 7, 8(4) & 11 – Statutory Bodies (Discipline and Surcharge) Act 2000, Second Schedule, regs. 3(2)(d), (g), 39
Rokiah Mhd Noor v. Menteri Perdagangan Dalam Negeri Koperasi & Kepenggunaan Malaysia & Ors
Ahmad Maarop CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Zaharah Ibrahim, Aziah Ali & Jeffrey Tan FCJJ) [2018] 2 ILR 418
CONTRACT OF EMPLOYMENT
Existence of – Whether there existed a contract of employment between the claimant and the company – Factors to consider – Evidence adduced – Effect of – Whether the claimant’s services had been assigned to SSPC – Evaluation of the evidence – Effect of – Whether the company had been his employer at all material times – Whether the claimant had been dismissed by the company – Reasons for the same – Whether dismissal without just cause and excuse
Lee Hock Guan v. Energy Personnel Solutions (M) Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2018] 2 ILR 532
Notice of termination – Claimant terminated by the company – Whether the company had been properly constituted and whether it had the jurisdiction to dismiss him from the other companies as they had been separate legal entities – Factors to consider – Evaluation of the case laws – Effect of
Fu Yuk Vui @ Foo Yuk Vui v. Sit Seng & Sons Realty Sdn Bhd (Sandakan Branch)
(Duncan Sikodol) [2018] 2 ILR 515
Notice of termination – Claimant terminated two weeks into her probationary period – Whether it had amounted to summary termination – Factors to consider – Effect of
Thamiyanthy Muniandy v. Eagle Liner Shipping Agencies Sdn Bhd
(Andersen Ong Wai Leong) [2018] 2 ILR 481
Type of – Fixed-term contract – Whether the 2014 Contract had been a fixed-term contract – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the claimant had had a legitimate expectation to complete the duration of his contract of employment – Whether the company had terminated him in compliance with the 2014 Contract – Effect of
Lee Hock Guan v. Energy Personnel Solutions (M) Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2018] 2 ILR 532
DISMISSAL
Absenteeism – Whether the claimant had been absent from work without leave – Factors to consider – Evidence adduced – Effect of – Whether it had amounted to a serious misconduct – Whether his defence had had merits – Factors to consider – Effect of – Whether this charge had been proven against him – Whether it had warranted his dismissal
Mohamad Ali Piah Abu Ghayam v. Perusahaan Otomobil Nasional Sdn Bhd
(Anna Ng Fui Choo) [2018] 2 ILR 454
Absenteeism – Whether the claimant had had a chronic problem of being absent from work without leave – Factors to consider – Effect of – Company’s actions towards him – Whether reasonable – Position held by the claimant in the company – Whether his absenteeism had warranted his dismissal – Whether dismissal without just cause or excuse
Mohamad Ali Piah Abu Ghayam v. Perusahaan Otomobil Nasional Sdn Bhd
(Anna Ng Fui Choo) [2018] 2 ILR 454
Attendance – Lateness – Whether the claimant had been a persistent latecomer – Factors to consider – Evidence adduced – Effect of – Whether the hospital had succeeded in proving this against her – Effect of – Whether the claimant had refused to improve, despite many opportunities accorded to her – Hospital’s actions towards her – What it had shown – Whether the hospital, by its conduct, had condoned her late coming – Evaluation of the evidence – Whether the hospital had been justified in dismissing her – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Vasantha Permalu v. Adventist Health Services (M) Sdn Bhd & Anor
(Fredrick Indran XA Nicholas) [2018] 2 ILR 465
Breach of company rules and policies – Conflict of interest with the company’s business – Whether the claimant’s action of allowing the company’s contractor to enter the company’s premises, without its consent, had amounted to a conflict of interest of his fiduciary relationship to it – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether he had been aware of his actions – Claimant’s defence – Whether could be accepted – Whether his actions had constituted serious misconduct – Whether his actions had warranted his dismissal – Factors to consider – Whether his dismissal had been without just cause and excuse
Badrul Affandy Bahkia v. Syarikat Bekalan Air Selangor Sdn Bhd
(Fredrick Indran XA Nicholas) [2018] 2 ILR 563
Breach of company rules and policies – Dishonesty – Whether the claimant had allowed the illegal withdrawal of the proceeds of sludge oil sales by one of the companies – Evidence adduced – Evaluation of – Whether this charge had been proven by the company against him – Whether dismissal without just cause and excuse
Fu Yuk Vui @ Foo Yuk Vui v. Sit Seng & Sons Realty Sdn Bhd (Sandakan Branch)
(Duncan Sikodol) [2018] 2 ILR 515
Breach of company rules and policies – Dishonesty – Whether the claimant had allowed wrongful payments to be made to his wife, who had been a phantom employee of one of the companies – Factors to consider – Evidence adduced – Effect of – Claimant’s defence – Whether acceptable – Whether this charge had been proven by the company against him – Whether his actions had justified his dismissal – Whether dismissal without just cause or excuse
Fu Yuk Vui @ Foo Yuk Vui v. Sit Seng & Sons Realty Sdn Bhd (Sandakan Branch)
(Duncan Sikodol) [2018] 2 ILR 515
Breach of company rules and policies – Dishonesty – Whether the claimant had been involved in the creation of fictitious claims and payments to KS – Evidence adduced – Evaluation of – Whether this charge had been proven by this company against him – Whether dismissal without just cause and excuse
Fu Yuk Vui @ Foo Yuk Vui v. Sit Seng & Sons Realty Sdn Bhd (Sandakan Branch)
(Duncan Sikodol) [2018] 2 ILR 515
Breach of company rules and policies – Medical leave – Claimant submitting MCs from different doctors at different locations, all at a considerable distance from his house – What his intentions had been – Evidence adduced – Evaluation of – Effect of – Claimant’s defence – Whether could be accepted – Whether the charge had been proven against him – Whether dismissal without just cause and excuse
Mohamad Ali Piah Abu Ghayam v. Perusahaan Otomobil Nasional Sdn Bhd
(Anna Ng Fui Choo) [2018] 2 ILR 454
Constructive dismissal – Benefits – Company revising the collection target for the Litigation Department twice – Whether the second revision of the target had been done with mala fide intention – Whether the formula for the setting of collection targets had been agreed upon by the parties – Factors to consider – Evidence adduced – Effect of – Whether the consent of the claimant had been required for the setting of the target – Effect of – Whether the second revision had constituted a fundamental breach which had gone to the root of the contract of employment between the parties – Whether the claimant had been constructively dismissed by the company
Santhirakala N Ramasamy v. Ghani & Co
(Jamhirah Ali) [2018] 2 ILR 591
Constructive dismissal – Benefits – Whether the company’s second revision of the collection target had been impossible to achieve – Evidence adduced – Effect of – Whether it had constituted a fundamental breach which had gone to the root of the contract of employment between the parties – Whether the claimant had been constructively dismissed by the company
Santhirakala N Ramasamy v. Ghani & Co
(Jamhirah Ali) [2018] 2 ILR 591
Constructive dismissal – Closure of department – Whether COW1 had indicated his intention to close down the Litigation Department – Evidence adduced – Evaluation of – Effect of – Whether it had constituted a fundamental breach which had gone to the root of the contract of employment between the parties – Whether the claimant by walking out of her employment had acted prematurely – What she should have done – Reasons for the eventual closure of the Department – Whether it had been carried out with mala fide intent – Factors to consider – Whether the claimant, by her actions, had abandoned her employment with the company
Santhirakala N Ramasamy v. Ghani & Co
(Jamhirah Ali) [2018] 2 ILR 591
Constructive dismissal – Resignation – Whether the claimant had been asked to resign by the company – Evidence adduced – Effect of – What the claimant should have done
Santhirakala N Ramasamy v. Ghani & Co
(Jamhirah Ali) [2018] 2 ILR 591
Insubordination – Whether the claimant’s refusal to comply with what had been found to be legitimate instructions and reproofs to her from the hospital, had been inconsistent with the trust and responsibility reposed in her by it – Factors to consider – Evidence adduced – Effect of – Whether the hospital had succeeded in proving insubordination on the part of the claimant – Whether dismissal without just cause or excuse
Vasantha Permalu v. Adventist Health Services (M) Sdn Bhd & Anor
(Fredrick Indran XA Nicholas) [2018] 2 ILR 465
Notice of termination – Forced resignation – Claimant resigning and then purportedly withdrawing it through her husband – Whether it had been a valid withdrawal of her resignation – Factors to consider – Whether the jural relationship between an employee and employer could extend to the employee’s husband or kin – Effect of – What she should have done
Teoh Jen Lee v. Sharp-Roxy Sales & Services Co (M) Sdn Bhd
(Andersen Ong Wai Leong) [2018] 2 ILR 503
Notice of termination – Forced resignation – Whether the claimant had been forced to resign – Whether the claimant had been mentally abnormal at the time she had tendered her resignation – Evidence adduced – Evaluation of – Effect of – Whether lunacy of conduct had been successfully proven by her – Whether she had resigned voluntarily
Teoh Jen Lee v. Sharp-Roxy Sales & Services Co (M) Sdn Bhd
(Andersen Ong Wai Leong) [2018] 2 ILR 503
Probationer – Claimant put on probation but terminated before expiry of the probation period – Whether it had amounted to an unjust dismissal – Factors to consider – Evidence adduced – Effect of – Whether the company’s actions towards her had been reasonable – What the company should have done – Whether dismissal without just cause and excuse
Thamiyanthy Muniandy v. Eagle Liner Shipping Agencies Sdn Bhd
(Andersen Ong Wai Leong) [2018] 2 ILR 481
Probationer – Claimant terminated before the expiry of her probationary period – When such an action would be acceptable – Whether the company had acted reasonably towards her – Factors to consider – Whether she had been deprived of a legitimate right, under her employment contract, to prove her suitability for the job, within the agreed period – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Thamiyanthy Muniandy v. Eagle Liner Shipping Agencies Sdn Bhd
(Andersen Ong Wai Leong) [2018] 2 ILR 481
DOMESTIC INQUIRY
Absence of – Whether the claimant’s admissions had precluded the necessity to hold one – Effect of
Vasantha Permalu v. Adventist Health Services (M) Sdn Bhd & Anor
(Fredrick Indran XA Nicholas) [2018] 2 ILR 465
EVIDENCE
Adverse inference – Whether the claimant’s failure to call his wife and KS would draw an adverse inference against him – Factors to consider – Effect of – Evidence Act 1950, s. 114(g)
Fu Yuk Vui @ Foo Yuk Vui v. Sit Seng & Sons Realty Sdn Bhd (Sandakan Branch)
(Duncan Sikodol) [2018] 2 ILR 515
Documentary evidence – Notes of the DI – Whether valid and accurate – Factors to consider – Effect of
Fu Yuk Vui @ Foo Yuk Vui v. Sit Seng & Sons Realty Sdn Bhd (Sandakan Branch)
(Duncan Sikodol) [2018] 2 ILR 515
Documentary evidence – Old CA in operation pursuant to the Federal Court decision – Union seeking to expunge the new CA – Whether its application ought to be allowed – Factors to consider – Effect of – Whether any weight ought to be attached to the new CA in view of the Federal Court decision
Tanjong Aru Hotel Sdn Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran Semenanjung Malaysia
(Anna Ng Fui Choo) [2018] 2 ILR 606
Documentary evidence – Whether the claimant had been a workman within the definition of s. 2 of the Industrial Relations Act – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, s. 2
Lee Hock Guan v. Energy Personnel Solutions (M) Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2018] 2 ILR 532
INDUSTRIAL COURT
Remedies – Backwages and compensation in lieu of reinstatement – Whether ought to be awarded to the claimant – Factors to consider – Effect of
Thamiyanthy Muniandy v. Eagle Liner Shipping Agencies Sdn Bhd
(Andersen Ong Wai Leong) [2018] 2 ILR 481
Remedies – Compensation – What would be a suitable amount to award the claimant under the circumstances – Factors to consider – Claimant on a fixed-term contract – Effect of
Lee Hock Guan v. Energy Personnel Solutions (M) Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2018] 2 ILR 532
LABOUR LAW
Employment – Public servant – Public officer – Disciplinary Committee (‘DC’) – Disciplinary action against Deputy CEO of Companies Commission of Malaysia – Recommendation by DC to Minister for revocation and dismissal from service – Appointment as Deputy CEO by Minister – Whether Minister has power only to revoke appointment – Whether only DC could dismiss Deputy CEO – Whether Minister had actual or delegated power to dismiss – Whether dismissal void – Companies Commission of Malaysia Act 2001, ss. 6, 7, 8(4) & 11 – Statutory Bodies (Discipline and Surcharge) Act 2000, Second Schedule, regs. 3(2)(d), (g), 39
Rokiah Mhd Noor v. Menteri Perdagangan Dalam Negeri Koperasi & Kepenggunaan Malaysia & Ors
(Ahmad Maarop CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Zaharah Ibrahim, Aziah Ali & Jeffrey Tan FCJJ) [2018] 2 ILR 418
Industrial Court – Decision – Applicant dismissed from employment on grounds of making fraudulent claims and forged emails – Industrial Court found applicant’s dismissal with just cause and excuse – High Court allowed applicant’s judicial review application and found applicant had been wrongfully dismissed – Appeal against findings of High Court – Whether High Court erred in substituting findings of Industrial Court
Multimedia Development Corporation Sdn Bhd v. Clarence Augustine Tee Teck Huo
(David Wong Dak Wah, Hamid Sultan Abu Backer, Hasnah Mohammed Hashim JJCA) [2018] 2 ILR 401
NON-COMPLIANCE
Collective Agreement – Article on effective date and duration, legislation and service charge – Hotel unilaterally converting the employees’ service charges into minimum wages without varying the CA – Whether there had been non-compliance by the hotel of the said articles in the CA – Factors to consider – Evidence adduced – Effect of
National Union Of Hotel, Bar & Restaurant Workers, Peninsular Malaysia v. Bayview Hotel Sdn Bhd
(Eddie Yeo Soon Chye) [2018] 2 ILR 441
TRADE DISPUTE
Collective Agreement – Terms and conditions of service – Restructuring of minimum wages by the hotel – Whether the hotel could utilise the service charge of the employees in order to comply with the Minimum Wages Order 2012 – Whether the hotel had carried out the exercise unilaterally – Factors to consider – Effect of – Minimum Wages Act 2012, para 6 & National Wages Consultative Council Act 2012, ss. 2 and 23
Tanjong Aru Hotel Sdn Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran Semenanjung Malaysia
(Anna Ng Fui Choo) [2018] 2 ILR 606
INDEKS PERKARA
KONTRAK PERKHIDMATAN
Kewujudan – Sama ada kontrak perkhidmatan wujud antara YM dengan pihak syarikat – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada perkhidmatan YM telah ditamatkan secara terus dan serta merta tanpa beliau diberi peluang untuk memberi penjelasan terlebih dahulu – Sama ada tindakan syarikat menamatkan perkhidmatan YM merupakan satu tindakan atau keputusan yang telah dibuat secara mala fide – Penilaian keterangan – Kesannya
Loo Kwai Heng lwn. Hup Ngai Loong Foundry Sdn Bhd
(Rasidah Chik) [2018] 2 ILR 578
MAHKAMAH PERUSAHAAN
Bidang kuasa – YM meninggal dunia setelah perbicaraan dijalankan tetapi sebelum award dikeluarkan – Sifat tuntutan di bawah s. 20(3) Akta Perhubungan Perusahaan 1967 – Sama ada tuntutan YM harus dibatalkan – Faktor-faktor yang harus diambil kira – Kesannya – Akta Perhubungan Perusahaan 1967, s. 20(3)
Mohd Yusoff Kamaruddin lwn. Syarikat Takaful Malaysia Berhad
(Jamil Aripin) [2018] 2 ILR 489
Remedi – Bayaran pampasan galang ganti pengembalian ke jawatan semula – YM berumur 66 tahun sewaktu ditamatkan perkhidmatannya – Sama ada beliau berhak kepada pampasan ini – Faktor-faktor yang harus diambil kira – Kesannya
Loo Kwai Heng lwn. Hup Ngai Loong Foundry Sdn Bhd
(Rasidah Chik) [2018] 2 ILR 578
PEMBUANGAN KERJA
Ketidakturutan – Sama ada YM telah gagal untuk mengikut arahan syarikat untuk mengemukakan geran tanah dan dokumen lain milik syarikat apabila ditanya oleh COW1 dan seorang lagi – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Penjelasan YM – Sama ada munasabah dan dapat diterima – Sama ada pertuduhan ini berjaya dibuktikan oleh syarikat terhadapnya – Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab
Loo Kwai Heng lwn. Hup Ngai Loong Foundry Sdn Bhd
(Rasidah Chik) [2018] 2 ILR 578
Penghematan – YM diberhentikan kerja atas alasan penghematan – Sama ada tindakan syarikat telah dilakukan secara bona fide – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Syarikat gagal untuk mematuhi prinsip LIFO – Sama ada LIFO merupakan satu prinsip yang mandatori – Kesannya – Sama ada pemberhentian kerja YM atas alasan penghematan telah dilakukan secara adil dan bersebab
Mohd Yusoff Kamaruddin lwn. Syarikat Takaful Malaysia Berhad
(Jamil Aripin) [2018] 2 ILR 489
Salah laku – Sama ada YM tidak jujur dan amanah dalam menjalankan tugasan hariannya – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada pertuduhan ini berjaya dibuktikan oleh syarikat terhadapnya – Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab – Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Loo Kwai Heng lwn. Hup Ngai Loong Foundry Sdn Bhd
(Rasidah Chik) [2018] 2 ILR 578
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