| BULLETIN 08/2016 | |
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LATEST CASES (ILR Issue 08 of 2016) SUBJECT INDEX CONTRACT OF EMPLOYMENT Notice of termination - Contents of - Whether it had been general and vague - Perusal of - What that had shown Notice of termination - Whether the claimant had been forced to sign the early release letter - Factors to consider - Evidence adduced - Effect of DISMISSAL Breach of company rules and policies - Assault - Claimant terminated by the company for assaulting and abusing his superior and colleagues - Whether the punishment of dismissal had been unwarranted, harsh and excessive - Factors to consider - Claimant serving the company for 31 years with a clean record - Effect of - Whether his actions at the company dinner had constituted a serious misconduct which had warranted his dismissal - Factors to consider - Whether the claimant's dismissal had been carried out with just cause and excuse Breach of company rules and policies - Assault - Whether the act committed by the claimant, which had happened outside the workplace, had breached the express and/or implied terms of his employment with the company - Assault happening at the company dinner - Whether it had brought him within the domain of his employment as there had been a clear nexus with his employment - Whether the company dinner had been related to his employment or had fallen within his private domain - Factors to consider - Effect of Breach of company rules and policies - Assault - Whether the claimant had verbally abused and assaulted his superior and colleagues at the company dinner - Evidence adduced - Evaluation of - Whether the charges had been proven by the company against him - Whether it had justified his dismissal - Claimant's explanations - Whether could be accepted - Whether dismissal without just cause and excuse Breach of company rules and policies - Dishonesty - Claimant hired as a Ground Instructor - Whether he had possessed the requisite training and qualifications to hold that position - Factors to consider - Evidence adduced - Effect of - Claimant given letter of assignment due to a lack of qualifications - Whether he had accepted the assignment letter under duress - Factors to consider - Effect of Breach of company rules and policies - Dishonesty - Claimant originally representing to be qualified for the job and subsequently admitting to not possessing a valid Commercial Pilot's License - Effect of - At the time the termination letter was handed to him, he still had not been qualified - Whether the company had been justified in terminating him - Factors to consider - Whether he had been aware that it had been against the company's policy - Whether it had been severe enough to warrant dismissal - Factors to consider - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Dishonesty - Whether the claimant had clocked in his superior's attendance card - Factors to consider - Evidence adduced - Evaluation of - Whether the charges had been proven by the company against him - Whether it had justified the claimant's dismissal - Whether dismissal without just cause and excuse Insubordination - Whether she had failed to bring in her CPU for cleaning as instructed - Factors to consider - Evidence adduced - Effect of - Whether proven by the company - Whether the company had acted reasonably in dismissing her - Actions of the company towards her - Whether the claimant's dismissal had been justified - Whether dismissal with just cause and excuse Insubordination - Whether she had failed to sit at her designated seat - Evidence adduced - Claimant sitting in unauthorised seat until day she was dismissed - Whether it was a clear-cut case of insubordination - Her explanations - Whether could be accepted - Whether it had justified her termination Insubordination - Whether she had failed to turn up at the old office as instructed - Whether the company's instructions had been reasonable - Factors to consider - Effect of - What she had done instead - Whether she had been aware of the repercussions of her actions on the company - Whether charge proven by the company - Whether it had justified her dismissal - Whether dismissal without just cause and excuse Insubordination - Whether the claimant had failed to scan the documents as instructed - Evidence adduced - Evaluation of - Whether proven by the company - Factors to consider - Effect of her actions on the company - Whether her dismissal had been justified under the circumstances Insubordination - Whether the claimants had failed to carry out their duties as alleged - Evidence adduced - Evaluation of - Whether proven by the company - Factors to consider - Defence of the claimants - Whether could be accepted - Effect of their actions on the company - Whether it had destroyed the trust and confidence placed by the company in them - Whether their dismissals had been justified under the circumstances Misconduct - Claimant punching in his superior's attendance card - Whether the misconduct had been serious enough to warrant his dismissal - Whether the company had less severe forms of punishment in its "armoury of punishment" that it should have utilised rather than dismissing the claimant - Whether the punishment of dismissal had been disproportionate to the misconduct committed by the claimant - Factors to consider - Effect of - Whether the company had acted as a reasonable employer would have done - Whether dismissal without just cause and excuse Misconduct - Whether the claimants' actions of failing to carry out their duties at the material time had constituted wilful misconduct - Factors to consider - Evidence adduced - Effect of - Whether the misconduct had been proven by the company - Whether the company had acted reasonably in dismissing them - Actions of the company towards them - Whether the claimants' dismissals had been justified - Whether dismissals with just cause and excuse Performance - Unsatisfactory performance - Whether the claimant had been an under-performer - Evidence adduced - Effect of - Whether appraisals had been conducted on him - Whether he had been warned of his poor performance - Whether the claimant had been given sufficient opportunity to improve - Evidence adduced - Effect of - Whether the company's decision to terminate him had been reasonable - Whether dismissal without just cause and excuse Performance - Unsatisfactory performance - Whether the claimant had been an under-performer - Whether proven by the company - Whether the company had merely relied on rumours - What it should have done - Whether the claimant had been dismissed without just cause and excuse Probationer - Claimant was a probationer at the point of his dismissal - What sort of compensation he was entitled to - Factors to consider - Effect of Redundancy - Claimant applying for five alternative positons in the company under the MOR process - All his applications were rejected - Whether the company had had an obligation to inform him of the reasons for the same - Claimant's actions - What it had shown - What he should have done instead Redundancy - Company giving the claimant early notification, an opportunity to find alternative employment and paying him a reasonable redundancy package - Whether its actions had been in line with the Code of Conduct for Industrial Harmony - Whether the company had acted reasonably towards him - Whether his retrenchment had been carried out bona fide - Factors to consider - Effect of Retrenchment - Reorganisation - Whether the company had been suffering from adverse and tough business conditions at the material time - Evidence adduced - Evaluation of - Effect of - Whether there had been any mala fide intent on the part of the company in reorganising its business - Whether a redundancy situation had existed in the company - Factors to consider - Whether the claimant's retrenchment had been carried out mala fide EVIDENCE Documentary evidence - Notes of the DI - Whether valid and accurate - Factors to consider Witness - Testimony of COW1 against that of the claimant and CLW2 - Whose testimony had been more believable - Factors to consider INDUSTRIAL COURT Remedies - Compensation - Probationer claimant - Claimant awarded compensation for "lost time" - Method of calculation - Factors to consider - Effect of LABOUR LAW Employment - Dismissal - Employee dismissed from employment due to insubordination to superior's orders - Whether too harsh a penalty - Employee had long unblemished employment record - Whether decision to terminate employee from service proportionate to proven misconduct TRADE DISPUTE Collective Agreement - Terms and conditions of the 2013-2015 CA - Article on annual bonus - Article in CA only providing for contractual bonus - Company paying performance bonuses to its employees in the past on an equal basis - Effect of - Company starting new practice of differentiating between payment of performance bonuses to NET and NENT staff in 2014 - Whether the company had abused its management prerogative - Factors to consider - Whether the company's actions had amounted to an unfair labour practice and victimisation - Perusal of the terms of the 2013-2015 CA - Effect of Collective Agreement - Terms and conditions of the 2013-2015 CA - Article on annual increments - Perusal of - Company paying annual increments to its employees in the past on an equal basis - Effect of - Company starting new practice of differentiating between payment of annual increments to NET and NENT staff in 2014 - Whether the company's past actions had become an implied term of the 2013-2015 CA - Factors to consider - Effect of - Industrial Relations Act 1967, s. 17(2) INDEKS PERKARA KETERANGAN Keterangan dokumentar - Nota prosiding SD - Sama ada ianya tepat dan mematuhi prinsip keadilan asasi - Faktor-faktor yang harus diambil kira - Kesannya PEMBUANGAN KERJA Ketidakhadiran - Sama ada YM mempunyai rekod kehadiran bekerja yang buruk dengan syarikat responden - Keterangan yang dikemukakan - Kesannya - Sama ada dapat dibuktikan oleh syarikat responden - Tempoh perkhidmatan YM dengan syarikat responden - Sama ada beliau sepatutnya mengetahui peraturan dan polisi syarikat responden berkenaan cuti - Sama ada kelakuan beliau menunjukkan perlanggaran disiplin yang disengajakan - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada tindakan syarikat responden menamatkan perkhidmatannya telah dilakukan secara adil dan bersebab Ketidakhadiran - Sama ada YM tidak hadir bekerja untuk empat hari berturut-turut - Keterangan yang dikemukakan - Kesannya - Sama ada berjaya dibuktikan oleh syarikat responden - Penjelasan YM - Sama ada dapat diterima - Kelakuan YM - Tindakan syarikat responden terhadap YM - Sama ada menunjukkan niat mala fide - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab - Akta Kerja 1955, ss. 13(2) & 15(2) Pembuangan kerja secara konstruktif - Pemindahan - Sama ada YM berjaya membuktikan bahawa beliau telah dipecat secara konstruktif - Keterangan yang dikemukakan - Kesannya - Sama ada syarikat responden telah melakukan suatu kemungkiran fundamental terhadap kontrak perkhidmatan YM - Keterangan yang dikemukakan - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada YM telah dibuang kerja secara konstruktif Pembuangan kerja secara konstruktif - Pemindahan - YM dipindahkan ke jabatan yang baru dalam masa 24 jam - Sama ada merupakan satu amalan buruh yang baik - Apa yang syarikat responden sepatutnya lakukan - Sama ada tindakan syarikat responden menunjukkan motif yang terselindung - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada YM dipecat secara konstruktif - Sama ada pemecatannya telah dilakukan secara adil dan bersebab Salah laku - Sama ada rekod kesalahan yang lalu boleh diambil kira sebagai tambahan kepada kesalahan yang dilakukan sekiranya kesalahan yang lalu tersebut adalah dari jenis salah laku yang sama - Faktor-faktor yang harus diambil kira - Kesannya |
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