LATEST CASES (ILR Issue 7 of 2018)

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review – Application for – Contract of employment – Frustration of contract – Applicant's medical condition causing performance of his contract of employment impossible – Effect of – Applicant certified unfit to perform his job by doctor – Dismissal from employment – Whether company's actions reasonable – Whether company acted in best interests of applicant – Whether there had been a frustration of applicant's contract of employment – Whether dismissal with just cause or excuse
Abdullah Abdul Rahman v. Continental Tyre AS Malaysia Sdn Bhd & Anor
(Chan Jit Li JC) [2018] 3 ILR 1

CONTRACT OF EMPLOYMENT

Terms and conditions – Determination of who had been the claimant's employer at all material times – Factors to consider – Evidence adduced – Evaluation of – Effect of
Niall Atholl Murray v. Baker Hughes (Malaysia) Sdn Bhd & Anor
(Noor Ruwena Mohd Nurdin) [2018] 3 ILR 126

DISMISSAL

Absenteeism – Whether the claimant had been absent without leave – Factors to consider – Evidence adduced – Effect of – Whether the company had succeeded in proving this against him – Whether his absence had shown his lackadaisical attitude – Effect of – Whether the claimant had refused to improve, despite many opportunities accorded to him – Company's actions towards him – What it had shown – Whether the company had been justified in dismissing him – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Syed Zool Halmi Syed Azman v. Saeilo Japan (M) Sdn Bhd
(Rajendran Nayagam) [2018] 3 ILR 101

Absenteeism – Whether the claimant had been absent without leave on the material days – Evidence adduced – Effect of – Claimant's explanations – Whether acceptable – Whether she had been absent from work without leave – Whether charge proven by the company – Whether her misconduct had justified her dismissal – Whether dismissal without just cause and excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Nasliyana Abdul Samat v. Malaysian Airline System Berhad
(Bernard John Kanny) [2018] 3 ILR 109

Attendance – Lateness – Whether the claimant had been late to work – Evidence adduced – Effect of – Her explanations – Whether corroborated by the evidence – Whether the company had condoned flexible hours of work – Whether the charge had been proven against her
Nasliyana Abdul Samat v. Malaysian Airline System Berhad
(Bernard John Kanny) [2018] 3 ILR 109

Insubordination – Whether the claimant had failed to comply with the time card system and had failed to prepare the daily service schedule – Factors to consider – Evidence adduced – Effect of – Whether the company had succeeded in proving insubordination on his part – Actions taken by the company – Whether reasonable – What it had shown – Whether dismissal without just cause or excuse
Syed Zool Halmi Syed Azman v. Saeilo Japan (M) Sdn Bhd
(Rajendran Nayagam) [2018] 3 ILR 101

Misconduct – Claimant forging the signature of COW2 on the Employment Certification Letter for her personal benefit – Whether it had constituted a grave misconduct – Factors to consider – Evidence adduced – Effect of – Position held by the claimant in the company – Claimant's defence – Whether acceptable – Whether her misconduct had warranted her dismissal – Whether the company had condoned her misconduct by its actions – Effect of – Whether the company had been justified in dismissing her – Whether dismissal without just cause or excuse
Fam Fee Lin v. Hewlett-Packard (M) Sdn Bhd
(Bernard John Kanny) [2018] 3 ILR 180

Misconduct – Whether proven by the companies against him – Evidence adduced – Effect of – Claimant not dismissed by the companies – What it meant – Whether it had ousted the Industrial Court's jurisdiction to decide on the merits of the dismissal
Niall Atholl Murray v. Baker Hughes (Malaysia) Sdn Bhd & Anor
(Noor Ruwena Mohd Nurdin) [2018] 3 ILR 126

Notice of termination – Forced resignation – Whether the claimant had been forced to resign – Factors to consider – Evidence adduced – Effect of
Rosli Jaafar v. SRT-EON Security Services Sdn Bhd
(Syed Noh Said Nazir) [2018] 3 ILR 168

Notice of termination – Whether COW1 had had the authority to dismiss her – Factors to consider – Evidence adduced – Evaluation of – Effect of
Nasliyana Abdul Samat v. Malaysian Airline System Berhad
(Bernard John Kanny) [2018] 3 ILR 109

Notice of termination – Whether the claimant had been dismissed whilst she had been on maternity leave – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had been in contravention of the Employment Act 1955
Nasliyana Abdul Samat v. Malaysian Airline System Berhad
(Bernard John Kanny) [2018] 3 ILR 109

Performance – Poor performance – Claimants put on a series of PIPs and subsequently dismissed – Whether poor performance proven by the company against them – Factors to consider – Evidence adduced – Evaluation of – Effect of – What the company should have done – Whether dismissals without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mohamad Amiruddin Othman & Ors v. Percetakan Nasional Malaysia Berhad
(Mohd Dusuki Mokhtar) [2018] 3 ILR 74

Performance – Unsatisfactory performance – Whether the claimant had been a poor performer – Whether proven by the company against him – Evidence adduced – Effect of – Whether the charge had been proven against him
Rosli Jaafar v. SRT-EON Security Services Sdn Bhd
(Syed Noh Said Nazir) [2018] 3 ILR 168

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 – No evidence of misconduct on his part – Whether the company's actions towards him had been reasonable – What the company should have done – Whether dismissal without just cause and excuse
Lim Tho v. Inhesion Industrial (M) Sdn Bhd
(Fredrick Indran XA Nicholas) [2018] 3 ILR 20

DOMESTIC INQUIRY

Absence of – Whether fatal to the company's case – Claimant admitting to the charge – Whether that had made the holding of a DI unnecessary
Fam Fee Lin v. Hewlett-Packard (M) Sdn Bhd
(Bernard John Kanny) [2018] 3 ILR 180

Absence of – Whether the claimant had been given a chance to explain his actions – Evidence adduced – Whether an Inquiry would have shed further light on the matter – Factors to consider – Effect of
Syed Zool Halmi Syed Azman v. Saeilo Japan (M) Sdn Bhd
(Rajendran Nayagam) [2018] 3 ILR 101

Absence of – Whether the company's failure to hold a DI had made her dismissal void – Factors to consider – Effect of – Employment Act 1955, s. 14(1)
Nasliyana Abdul Samat v. Malaysian Airline System Berhad
(Bernard John Kanny) [2018] 3 ILR 109

EVIDENCE

Admissions – Claimant admitting to forging the signature of COW2 on the Employment Certification Letter – Effect of – Whether the company had succeeded in proving the charge against her
Fam Fee Lin v. Hewlett-Packard (M) Sdn Bhd
(Bernard John Kanny) [2018] 3 ILR 180

INDUSTRIAL COURT

Jurisdiction – Claimant's employer subject to the laws of UAE – Whether the Industrial Court had extra territorial jurisdiction to hear the matter – Factors to consider – Effect of – Employment (Restriction) Act 1968, ss. 5(1) and 5(3)
Niall Atholl Murray v. Baker Hughes (Malaysia) Sdn Bhd & Anor
(Noor Ruwena Mohd Nurdin) [2018] 3 ILR 126

Punishment – Whether dismissal had been too harsh considering the circumstances of the case – Factors to consider – Claimant no past history of misconduct with the company – Effect of
Fam Fee Lin v. Hewlett-Packard (M) Sdn Bhd
(Bernard John Kanny) [2018] 3 ILR 180

Remedies – Punishment – Mitigating factors – Claimant experiencing a difficult pregnancy – Whether dismissal too harsh under the circumstances – Whether the company had acted reasonable and equitably – Whether dismissal too harsh under the circumstances
Nasliyana Abdul Samat v. Malaysian Airline System Berhad
(Bernard John Kanny) [2018] 3 ILR 109

LABOUR LAW

Employment – Misconduct – Allegation of – Employee reported to Malaysian Anti-Corruption Commission ('MACC') and Polis Diraja Malaysia ('PDRM') regarding improper conduct of certain parties in employer's institute – Employer took disciplinary measures detrimental to and against employee – Whether employee qualified as whistleblower and entitled to protection – Whether detrimental actions of employer stemmed from presence of PDRM and MACC at institute – Whether allegations of employee's misconduct an afterthought – Whether employee proved case on balance of probabilities – Whether employee granted relief sought – Whistleblower Protection Act 2010, ss. 2, 10(1), (3) & (7)
Syed Omar Syed Agil v. Institut Profesional Baitulmal Sdn Bhd
(John Louis O'Hara J) [2018] 3 ILR 13

TRADE DISPUTE

Collective Agreement – Payment of the KLIA Attendance Incentive Allowance by the company to members of the union withdrawn – Whether the payment of the said allowance had been temporary in nature – Factors to consider – Intention of the parties – Evidence adduced – Effect of – Whether the 'Existing Benefits' clause in the Collective Agreement had preserved the said allowance
Malaysian Airline System Employees' Union Peninsular Malaysia (MASEU) v. Malaysia Airline System Berhad
(Rajendran Nayagam) [2018] 3 ILR 35

Collective Agreement – Terms and conditions of service – Article on service charge – Whether the hotel could utilise the service charge of the employees in order to comply with the Minimum Wages Order 2012 – Factors to consider – Evidence adduced – Effect of – Reasoning behind the introduction of service charge – Whether it had been part of the definition of "wages" – Legislation to consider – Effect of – Whether the workmen had been subject to the Employment Act or the National Wages Consultative Council Act 2011 – Factors to consider – Effect of – Employment Act 1955, s. 2, Minimum Wages (Amendment) Order 2012 & National Wages Consultative Council Act 2011
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v. Subang Jaya Hotel Development Sdn Bhd (Grand Dorsett Subang Hotel)
(Rajendran Nayagam) [2018] 3 ILR 153

Collective Agreement – Terms and conditions of service – Dispute in relation to "Income Tax Deductions-Members" and the calculation of benefits-in-kind related to art 40 of the Collective Agreement – Aggrieved employee withdrawing himself from the dispute – Whether a trade dispute had existed between the parties – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the Industrial Court could still determine the matter – Industrial Relations Act 1967, s. 26
All Malayan Estates Staff Union (AMESU) v. Ladang Jeram Padang (Kuala Lumpur Kepong Berhad)
(Ruwena Mohd Nurdin) [2018] 3 ILR 54

Collective Agreement – Terms and conditions of service – Union failing to follow the company's grievance procedures – Whether its failure had negated the existence of a trade dispute – Factors to consider – Effect of – What it should have done
All Malayan Estates Staff Union (AMESU) v. Ladang Jeram Padang (Kuala Lumpur Kepong Berhad)
(Ruwena Mohd Nurdin) [2018] 3 ILR 54

Collective Agreement – Whether in determining the matter, the Industrial Court had been bound by public rulings – Factors to consider – Effect of – Intention of public rulings – Income Tax Act 1967, s. 32(1) & s. 138A, Interpretation Acts 1948 and 1967, s. 3
All Malayan Estates Staff Union (AMESU) v. Ladang Jeram Padang (Kuala Lumpur Kepong Berhad)
(Ruwena Mohd Nurdin) [2018] 3 ILR 54

Whether the trade union had the locus standi to represent its members – Factors to consider – Evidence showing that at the time of the hearing of the matter, all the employees of the company had been terminated – Effect of – Industrial Relations Act 1967, ss. 2, 18(1) & 26(2)
Malaysian Airline System Employees' Union Peninsular Malaysia (MASEU) v. Malaysia Airline System Berhad
(Rajendran Nayagam) [2018] 3 ILR 35

WHISTLEBLOWER

Disclosure of improper conduct to enforcement agency – Retaliatory action by employer – Whether detrimental action under s. 2 of Whistleblower Protection Act 2010 (WPA) – Whether whistleblower entitled to protection – Whistleblower Protection Act 2010, s. 10(1), (3) & (7)
Syed Omar Syed Agil v. Institut Profesional Baitulmal Sdn Bhd
(John Louis O'Hara J) [2018] 3 ILR 13

WORDS & PHRASES

Whether "wages" had excluded service charge – Factors to consider – Judicial precedent – Effect of – Employment Act 1955, s. 2
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v. Subang Jaya Hotel Development Sdn Bhd (Grand Dorsett Subang Hotel)
(Rajendran Nayagam) [2018] 3 ILR 153

INDEKS PERKARA

PERTIKAIAN PERDAGANGAN

Perjanjian Kolektif – Terma dan syarat – Artikel 19(b) Perjanjian Kolektif tersebut berhubung dengan Paid Public Holiday – Sama ada syarikat telah mematuhi art. 19(b) Perjanjian Kolektif tersebut – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Tindakan syarikat berhubung dengan Cuti Tersebut – Sama ada ianya telah dibuat setelah menimbang kebajikan, kepentingan, harapan dan hak semua pihak – Akta Kerja 1955, s. 60 dan s. 60D(1)(a) & Akta Hari Kelepasan 1951, s. 8
Kesatuan Pekerja-pekerja Perkilangan Perusahaan Makanan lwn. Bestcan Food Technological Industry Sdn Bhd
(Rasidah Chik) [2018] 3 ILR 43