LATEST CASES (ILR Issue 06 of 2019)

CONTRACT OF EMPLOYMENT

Frustration of contract – Whether the claimant’s prolonged absence from work, due to his illness, had made the performance of his contract of employment impossible – Evidence adduced – Effect of – Whether there had been a frustration of the claimant’s contract of employment – Factors to consider – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, s. 20(3)
Raj Joseph Appadorai v. Linde Malaysia Sdn Bhd
(Franklin Goonting) [2019] 2 ILR 449

Terms and conditions – Medical boarding out – Whether the claimant had requested for a medical boarding out package – Factors to consider – Evidence adduced – Effect of – No signed agreement between the parties – Effect of – Whether he had been fit to report back to work – What his actions had shown – Whether the company had dismissed him
Raj Joseph Appadorai v. Linde Malaysia Sdn Bhd
(Franklin Goonting) [2019] 2 ILR 449

Type of – Fixed-term contract – Whether the claimant’s contracts of employment had been genuine fixed-term contracts – Perusal of the contents of the contracts – What it had indicated – What the intentions of the parties to the contracts had been – Ex-patriate claimant whose employment had been subject to obtaining a work permit or employment pass – Effect of – Whether the company had been in a position to offer him permanent employment – Factors to consider – Effect of – Whether the claimant’s contract had come to a natural end – Whether he had been dismissed – Whether dismissal without just cause and excuse
Peter James William Dyer v. Yayasan UEM
(Paramalingam J Doraisamy) [2019] 2 ILR 491

Type of – Fixed-term contract – Whether the claimant had been given assurances by the company that his employment would be permanent in nature – Factors to consider – Evidence adduced – Effect of – Claimant’s actions – What it had shown – Whether his contracts of employment had been genuine fixed-term contracts – Whether there had been a dismissal – Whether dismissal without just cause and excuse
Peter James William Dyer v. Yayasan UEM
(Paramalingam J Doraisamy) [2019] 2 ILR 491

DISMISSAL

Breach of company rules and policies – Dishonesty – Whether the claimant had been guilty of bill splitting – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had been proven against him
Tan Siang Pin v. IBM Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2019] 2 ILR 593

Breach of company rules and policies – Dishonesty – Whether the claimant had been in breach of the company’s Business Conduct Guidelines (‘BCG’) and other policies related to expense claims – Evidence adduced – Effect of – Claimant’s defence of ignorance – Whether it could be accepted – Factors to consider – Effect of – Whether he had been deemed to have had the requisite knowledge of the applicable rules, provisions and policies of the company – Whether his conduct had justified the company dismissing him – Whether dismissal without just cause and excuse
Tan Siang Pin v. IBM Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2019] 2 ILR 593

Breach of company rules and policies – Dishonesty – Whether the claimant had been in breach of the company’s per diem policy – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had been proven against him
Tan Siang Pin v. IBM Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2019] 2 ILR 593

Breach of company rules and policies – Dishonesty – Whether the claimant had improperly used his credit card – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had been proven against him
Tan Siang Pin v. IBM Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2019] 2 ILR 593

Breach of company rules and policies – Dishonesty – Whether the claimant had made an improper claim for a personal trip from Penang to Kuala Lumpur, without obtaining the prior approval of the company – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had been proven against him
Tan Siang Pin v. IBM Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2019] 2 ILR 593

Breach of company rules and policies – Dishonesty – Whether the claimant had submitted improper mileage claims – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had been proven against him
Tan Siang Pin v. IBM Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2019] 2 ILR 593

Breach of company rules and policies – Dishonesty – Whether the claimant had submitted improper telecommunication claims – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had been proven against him
Tan Siang Pin v. IBM Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2019] 2 ILR 593

Breach of company rules and policies – Dishonesty – Whether there had been discrepancies in respect of his claims for third party business meals – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had been proven against him
Tan Siang Pin v. IBM Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2019] 2 ILR 593

Breach of company rules and policies – Fraud/Dishonesty – Whether the claimant had misrepresented her qualifications to the company to secure the job – Factors to consider – Evidence adduced – Effect of – Her explanations and defence for the same – Whether acceptable – Whether misconduct proven by the company – Whether it had constituted serious misconduct – Whether the company had been justified in dismissing her
Lim Phooi Man v. Samsung Malaysia Electronics (SME) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 2 ILR 540

Breach of company rules and policies – Negligence – Whether the claimant had been grossly negligent in the carrying out of her duties – Factors to consider – Evidence adduced – Effect of – Type of business that the company had run – Whether she had failed to discharge her duties to the company – Whether her actions had been detrimental to the company’s interests – Claimant’s defence – Whether acceptable – Whether the company had been justified in dismissing her – Whether dismissal without just cause or excuse
Kalyani Vellu v. Cempaka Schools (1983) Sdn Bhd
(Noor Hayati Haji Mat) [2019] 2 ILR 457

Constructive dismissal – Demotion – Claimant demoted from the position of Branch Manager to Deputy Manager to Customer Service Executive within a short span of time – Whether it had amounted to a fundamental breach of his contract of employment – Factors to consider – Evidence adduced – Effect of – Whether it had justified him walking out of his employment and claiming constructive dismissal – Whether he had delayed in taking action – Factors to consider – Effect of
Ahmad Khusairy Mohd Taib v. Bank Muamalat Malaysia Berhad
(Rosenani Abd Rahman) [2019] 2 ILR 560

Constructive dismissal – Transfer – Claimant transferred twice, within a short span of time – Whether it had amounted to a fundamental breach of his contract of employment – Factors to consider – Evidence adduced – Effect of – Company’s actions towards him – Whether it had been vindictive, made in bad faith and motivated by mala fide intent, with a view of victimising him – The company’s defence – Whether could be accepted – Whether the claimant had been constructively dismissed – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ahmad Khusairy Mohd Taib v. Bank Muamalat Malaysia Berhad
(Rosenani Abd Rahman) [2019] 2 ILR 560

Misconduct – Whether the claimant had misrepresented her qualifications to the company to secure the job – Evidence adduced – Effect of – Actions of the company – Whether it had shown condonation – Factors to consider – Effect of – Claimant repeating the misrepresentation seven years later – What that had shown – Whether the claimant’s actions had warranted her dismissal – Whether dismissal with just cause and excuse
Lim Phooi Man v. Samsung Malaysia Electronics (SME) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 2 ILR 540

Retrenchment – Redundancy – Whether mere reorganisation, in this case reshuffling, had been sufficient to justify a retrenchment – Whether the claimant’s job and functions had remained in existence – Evidence adduced – Effect of – Whether the claimant’s retrenchment had been carried out bona fide
Allan Choy Kim Leong v. Canon Marketing (Malaysia) Sdn Bhd
(Paramalingam J Doraisamy) [2019] 2 ILR 573

Retrenchment – Redundancy – Whether the claimant’s position had become redundant – Factors to consider – Evidence adduced – Effect of – Evaluation of the evidence – Whether an actual redundancy situation had existed – Company’s actions towards him – What it had shown – Whether the company had suffered a “challenging economic climate” – Factors to consider – Effect of – Whether the company had acted bona fide – Effect of – Whether dismissal without just cause and excuse
Allan Choy Kim Leong v. Canon Marketing (Malaysia) Sdn Bhd
(Paramalingam J Doraisamy) [2019] 2 ILR 573

EVIDENCE

Documentary evidence – Claimant failing to deny or answer to charges in the show cause notice – Whether it had been fatal and/or damaging to his case – Factors to consider – Effect of
Tan Siang Pin v. IBM Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2019] 2 ILR 593

Documentary evidence – Findings of the DARC – Whether proper – Factors to consider – Evidence adduced – Effect of – Whether the company’s decision to dismiss the claimant should be interfered with
Tan Siang Pin v. IBM Malaysia Sdn Bhd
(Syed Noh Said Nazir) [2019] 2 ILR 593

INDUSTRIAL COURT

Jurisdiction – Claimant’s representations to the DGIR had stated the date of his dismissal as being 30 June 2016 – Whether he had still been in the company’s employ on that date – Factors to consider – Evidence adduced – Effect of – Whether the Industrial Court had jurisdiction to hear the matter
Peter James William Dyer v. Yayasan UEM
(Paramalingam J Doraisamy) [2019] 2 ILR 491

TRADE DISPUTE

Collective Agreement – Terms and conditions of service – Article 57.1 on fixed overtime rate/meal allowance claims during normal days, off days, rest days and public holidays, specifically fixed overtime rate/meal allowances claimed whilst travelling either by flight or by road – Whether the union members had been entitled to it – Factors to consider – Effect of – Whether the company’s actions of stopping such payments had put it in breach of the CA
Kesatuan Eksekutif Sistem Televisyen Malaysia Berhad v. Sistem Televisyen Malaysia Berhad
(Eddie Yeo Soon Chye) [2019] 2 ILR 585

Collective Agreement – Terms and conditions of service – Article on annual bonus – Whether the hotel’s proposal to depart from its previous practise of paying contractual bonus should be allowed – Factors to consider – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v. Langkawi Holiday Villa Sdn Bhd (Holiday Villa Beach Resort & Spa)
(Andersen Ong Wai Leong) [2019] 2 ILR 513

Collective Agreement – Terms and conditions of service – Article on annual increment – Determination of what had been a reasonable percentage to fix, considering the circumstances of the case – Factors to consider – Evidence adduced – Effect of – Company’s financial capacity – Whether the union’s claim ought to be allowed
Kesatuan Eksekutif Airod Sdn Bhd v. Airod Sdn Bhd
(Rosenani Abd Rahman) [2019] 2 ILR 469

Collective Agreement – Terms and conditions of service – Article on Appendix E (no. 6) – Whether the payment of bonus should be at the discretion of the company, according to its financial capability and performance – Factors to consider – Effect of – Whether the company’s proposal to make it a performance linked bonus payment, linked to its profits, had been fair
Kesatuan Eksekutif Airod Sdn Bhd v. Airod Sdn Bhd
(Rosenani Abd Rahman) [2019] 2 ILR 469

Collective Agreement – Terms and conditions of service – Article on bonus – Whether the company’s proposal to maintain the status quo and make it productivity-linked, had been fair and reasonable – Factors to consider – Effect of
Kesatuan Eksekutif Airod Sdn Bhd v. Airod Sdn Bhd
(Rosenani Abd Rahman) [2019] 2 ILR 469

Collective Agreement – Terms and conditions of service – Article on definition – Union proposing to change the term “salary” to “wages”, as defined under the Employment Act 1955 (‘EA’) – Whether it ought to be allowed – Factors to consider – Evidence adduced – Effect of – Whether Executives had fallen within the ambit of the EA
Kesatuan Eksekutif Airod Sdn Bhd v. Airod Sdn Bhd
(Rosenani Abd Rahman) [2019] 2 ILR 469

Collective Agreement – Terms and conditions of service – Article on effective date and duration – Determination of what the date of the CA should be and its duration – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, ss. 14(2)(b) & 30(7)
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v. Langkawi Holiday Villa Sdn Bhd (Holiday Villa Beach Resort & Spa)
(Andersen Ong Wai Leong) [2019] 2 ILR 513

Collective Agreement – Terms and conditions of service – Article on outstation and off base duty reimbursement – Whether the company’s proposal to reduce the rate to RM30 for both allowances, due to financial hardship, had been fair – Factors to consider – Effect of
Kesatuan Eksekutif Airod Sdn Bhd v. Airod Sdn Bhd
(Rosenani Abd Rahman) [2019] 2 ILR 469

Collective Agreement – Terms and conditions of service – Article on overseas duty reimbursement – Whether the company’s proposal to reduce the rate, due to its financial hardship, had been fair – Factors to consider – Effect of
Kesatuan Eksekutif Airod Sdn Bhd v. Airod Sdn Bhd
(Rosenani Abd Rahman) [2019] 2 ILR 469

Collective Agreement – Terms and conditions of service – Article on retirement age – Whether the company’s proposal had been fair and would be adopted – Factors to consider – Effect of
Kesatuan Eksekutif Airod Sdn Bhd v. Airod Sdn Bhd
(Rosenani Abd Rahman) [2019] 2 ILR 469

Collective Agreement – Terms and conditions of service – Article on retirement benefits – Parties applying the same formula for computation of retirement benefits since the 1st CA – Whether the hotel had provided any facts or figures to justify its proposal to reduce the number of days for computation of retirement benefits – Factors to consider – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v. Langkawi Holiday Villa Sdn Bhd (Holiday Villa Beach Resort & Spa)
(Andersen Ong Wai Leong) [2019] 2 ILR 513

Collective Agreement – Terms and conditions of service – Article on retirement benefit – Whether the company’s proposal that for service of 20 years and above, “F” is 4%, had been reasonable – Factors to consider – Effect of
Kesatuan Eksekutif Airod Sdn Bhd v. Airod Sdn Bhd
(Rosenani Abd Rahman) [2019] 2 ILR 469

Collective Agreement – Terms and conditions of service – Article on retrenchment benefits – Whether the company’s proposal to increase the number of days to between 20 days wages to 60 days basic salary had been fair – Factors to consider – Effect of
Kesatuan Eksekutif Airod Sdn Bhd v. Airod Sdn Bhd
(Rosenani Abd Rahman) [2019] 2 ILR 469

Collective Agreement – Terms and conditions of service – Article on salary exceeding Appendix D – Whether the company had had the discretion on whether to give a salary increment to employees who had exceeded the maximum salary range – Factors to consider – Effect of
Kesatuan Eksekutif Airod Sdn Bhd v. Airod Sdn Bhd
(Rosenani Abd Rahman) [2019] 2 ILR 469

Collective Agreement – Terms and conditions of service – Article on salary structure – What would be a fair percentage to pay employees on their existing basic salary and whether the union’s proposal to maintain the 20-step maximum basic salary structure, should be allowed – Evidence adduced – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v. Langkawi Holiday Villa Sdn Bhd (Holiday Villa Beach Resort & Spa)
(Andersen Ong Wai Leong) [2019] 2 ILR 513

Collective Agreement – Terms and conditions of service – Article on salary structure – Whether the hotel is entitled to use part of the service charge collected from its customers or patrons, to top up the employees’ wages to the minimum amount of RM900 in accordance with the Minimum Wages Order 2012 – Factors to consider – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v. Langkawi Holiday Villa Sdn Bhd (Holiday Villa Beach Resort & Spa)
(Andersen Ong Wai Leong) [2019] 2 ILR 513

Collective Agreement – Terms and conditions of service – Article on salary structure – Whether there had been a need for the hotel to negotiate with the union on the salary and service charge points pertaining to new positions and whether the annual increment structure proposed by the union is to be adopted in the CA – Factors to consider – Evidence adduced – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v. Langkawi Holiday Villa Sdn Bhd (Holiday Villa Beach Resort & Spa)
(Andersen Ong Wai Leong) [2019] 2 ILR 513

Collective Agreement – Terms and conditions of service – Articles 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 – Determination of what a reasonable rate of salary adjustment had been
Kesatuan Eksekutif Airod Sdn Bhd v. Airod Sdn Bhd
(Rosenani Abd Rahman) [2019] 2 ILR 469

Collective Agreement – Terms and conditions of service – Article on service charge – Whether the hotel had produced cogent reasons or justification to depart from its existing distribution ratio of 9:1 – Factors to consider – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v. Langkawi Holiday Villa Sdn Bhd (Holiday Villa Beach Resort & Spa)
(Andersen Ong Wai Leong) [2019] 2 ILR 513

Collective Agreement – Terms and conditions of service – Article on the deduction of levy bonus – Whether it had been part of the CA and had benefited the Executives directly – Factors to consider – Effect of – Whether it had been an employment term and part of the company’s responsibility – Effect of
Kesatuan Eksekutif Airod Sdn Bhd v. Airod Sdn Bhd
(Rosenani Abd Rahman) [2019] 2 ILR 469

Collective Agreement – Terms and conditions of service – Whether the company had had the financial capacity to agree to the union’s monetary proposals – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether rebutted by the union
Kesatuan Eksekutif Airod Sdn Bhd v. Airod Sdn Bhd
(Rosenani Abd Rahman) [2019] 2 ILR 469