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LATEST CASES (ILR Issue 8 of 2014) SUBJECT INDEX CONTRACT Employment contract - Breach - Claim by licensed stock broking
firm against employee for losses incurred involving share trading
activities - Failure to use reasonable care and skill in discharge of
duties - Failure to comply with policies and guidelines - Whether
breach of contract of employment established - Whether employee
liable in damages DISMISSAL Abandonment - Whether the claimant had abandoned her job -
Two versions of what had happened - Whose version had been
more believable - Her state of mind - Effect of - Whether the
company had dismissed her - Factors to consider - Evidence
adduced - Effect of Attendance - Lateness - Whether the claimant had been late to
work - Evidence adduced - Effect of - Company not informing him
of it - Whether it could be relied on as a ground of misconduct Breach of company rules and policies - Violence at the
workplace - Claimant involved in a fight with his colleague - His
colleague lodging a police report - Whether the police report alone
had sufficed to prove the claimant's misconduct - Factors to
consider - Effect of - Whether dismissal without just cause or
excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Violence at the
workplace - Claimant involved in a fight with his colleague -
Whether the claimant had been given an opportunity to state his
case - Whether the company had followed the rules of natural
justice before dismissing him - Effect of - What the company
should have done - Whether dismissal without just cause and
excuse Constructive dismissal - Demotion - Company discovering that
the claimant had reached retirement age two years after the event
and issuing her fresh terms of employment - Whether the company
had been acting within its rights - Factors to consider - Evidence
adduced - Whether the company had waived its rights to clause 6
of the contract of employment - Contents of clause 6 - Factors to
consider - Effect of - When the company had realised that she had
exceeded her retirement age - Claimant's conduct - Whether
reasonable - Position held by the claimant in the company - What
she should have done - Whether constructive dismissal proven Constructive dismissal - Salary - Claimant offered fresh terms of
employment upon being discovered to have reached retirement age
- Reasons for the same - Whether the company had been trying to
get rid of her - Evidence adduced - Effect of - Whether there had
been a fundamental breach going to the root of her contract of
employment - Whether the claimant had been constructively
dismissed - Whether dismissal without just cause or excuse -
Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Claimant fighting with his colleague - Whether
proven by the company - Evidence adduced - Effect of Performance - Unsatisfactory performance - Claimant failing to
show responsibility in performing his tasks - Whether proven by
the company - Evidence adduced - Whether the company had been
justified in dismissing him - Whether dismissal without just cause
and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Performance - Unsatisfactory performance - Claimant issued a
show cause letter for misconduct as opposed to poor performance -
What the company should have done Performance - Unsatisfactory performance - Whether proven by
the company - Evidence adduced - Evaluation of - Whether it had
been sufficient to discharge the company's burden of proof - Effect
of - Whether performance appraisals had been conducted on the
claimant - Whether the claimant had been formally appraised -
Factors to consider - Whether the company's actions had been
reasonable under the circumstances - Whether dismissal without
just cause or excuse - Industrial Relations Act 1967, s. 20(3) Performance - Unsatisfactory performance - Whether proven by
the company - Evidence adduced - Evaluation of - Whether it had
been sufficient to discharge the company's burden of proof - Effect
of - Whether the claimant had been given oral or written warnings
- Whether the claimant had been formally appraised - Factors to
consider - Whether he had been subject to a formal appraisal -
Whether the company's actions had been reasonable under the
circumstances - Whether the company's actions had been
premature - Whether dismissal without just cause or excuse -
Industrial Relations Act 1967, ss. 20(3) & 30(5) Performance - Unsatisfactory performance - Whether proven by
the company - Whether the claimant had been warned - Evidence
adduced - Effect of - Whether the claimant had been given
sufficient opportunity to improve - Position held by the claimant -
Whether dismissal without just cause and excuse Performance - Unsatisfactory performance - Whether the claimant
had been incompetent in the performance of his job functions -
Factors to consider - Who had been in the best position to judge -
Whether the company's evaluations of his performance had been
bona fide - Factors to consider - Evidence adduced - Whether the
company had been justified in dismissing him - Whether dismissal
without just cause and excuse Performance - Unsatisfactory performance - Whether the incidents
listed by the company had been the collective responsibility of the
company - Factors to consider - Effect of - What the company
should have done - Whether the dismissal had been carried out
bona fide Retrenchment - Redundancy - Claimant employed by Global One
- Global One merging with Equant to form a new company -
Effect on the claimant's contract of employment - Whether it had
come to an end with the merger - Whether the new company had
been obliged to offer her employment - Factors to consider -
Whether the claimant had been redundant - Whether the company
had acted bona fide - Effect of EVIDENCE Burden of proof - Whether discharged by the claimant -
Evaluation of the evidence - Whose version more probable Witness - Testimony - Whether COW2's evidence could be
accepted without reservation - Relationship between COW2 and the
claimant INDUSTRIAL COURT Remedies - Compensation - Backwages - Probationer claimant
entitled to twelve months - Whether a deduction should be made
for his contributory conduct of not performing up to the company's
expectations - Effect of - Claimant not dismissed for poor
performance LABOUR LAW Employment - Contract of employment - Breach - Claim by
licensed stock broking firm against employee for losses incurred
involving share trading activities - Failure to use reasonable care
and skill in discharge of duties - Failure to comply with policies and guidelines - Whether breach of contract of employment
established - Whether employee liable for damages Provident fund - Contribution - Employer's contribution - Failure
to pay - Employee reappointed as human resource consultant upon
retirement - Whether appointment constituted contract of service or
contract for service - Whether employee entitled to Employees
Provident Fund ('EPF') contributions - Whether employer liable
for failure to contribute to EPF - Employees Provident Fund Act
1991, s. 43(2) PROVIDENT FUND Employer's contribution - Failure to pay - Employee reappointed
as human resource consultant upon retirement - Whether
appointment constituted contract of service or contract for service -
Whether employee entitled to Employees Provident Fund ('EPF')
contributions - Whether employer liable for failure to contribute to
EPF - Employees Provident Fund Act 1991, s. 43(2) NON-COMPLIANCE Award - Respondent ordered to pay the complainant backwages
and reinstate him - Respondent paying the claimant's salaries but
preventing him from resuming duties - Whether it had constituted
reinstatement - Whether the respondent had complied with the
terms of the said award - Whether the payment of salaries alone
had sufficed to fulfil reinstatement - Effect of - Whether there had
been special circumstances to vary the said award - Factors to
consider - Effect of - Whether the respondent had failed to comply
with the said award - Whether compliance ought to be ordered -
Industrial Relations Act 1967, s. 56(1) TRADE DISPUTE Collective Agreement - Article on effective date and duration -
Whether the union's proposal had merit - Factors to consider -
Whether the union's proposal ought to be allowed - Industrial
Relations Act 1967, s. 30(7) Collective Agreement - Article on eligibility - Who should be
eligible to the benefits under the CA - Proposals and reasoning put
forward by the parties - Effect of - Whether it ought to include
employees who had resigned during the validity of the CA -
Whether employees who had resigned to avoid dismissals during
this period ought to be included - Factors to consider Collective Agreement - Article on implementation of the
agreement - Whose proposal had born more merit - Factors to
consider - Effect of Collective Agreement - Article on salary structure - Whether the
union's proposal had merit - Factors to consider - Whether the
union's proposal ought to be allowed - The Minimum Wages
Order 2012 Collective Agreement - Article on service charge - Whether the
fundamental terms on salary and service charge could be
unilaterally changed by the hotel - Factors to consider - Effect of -
Whether the hotel had been bound by those articles - Whether the
service charge ought to be shared between the parties - Previous
decisions of the Court - What the norm in the hotel industry had
been INDEKS PERKARA MAHKAMAH PERUSAHAAN Tindakan - Sama ada doktrin estoppel terpakai kepada pertikaian
perusahaan - Kes-kes yang dikemukakan - Kesannya PEMBUANGAN KERJA Siasatan polis- YM dituduh dimahkamah di bawah s. 12(2) Akta
Dadah Berbahaya 1952 - Kesannya - Responden menamatkan
perkhidmatannya - Tiada sebarang salahlaku yang dikemukakan
oleh responden sebagai asas menamatkan perkhidmatan YM - Sama
ada tindakan responden adalah munasabah - Sama ada pembuangan
kerja YM dilakukan secara adil dan bersebab - Akta Dadah
Berbahaya 1952, s. 12(2) Akta Perhubungan Perusahaan 1967,
ss. 20(3) & 30(5) SIASATAN DALAMAN Ketiadaan - Responden gagal untuk menjalankan siasatan dalaman
terhadap YM - Sama ada melanggar hak keadilan asasi YM - Apa
yang responden seharusnya lakukan - Kesannya - Sama ada
responden telah mematuhi prosedur TATiUC berkenaan hukuman
jika seseorang pekerja didapati bersalah - Kesannya - Sama ada
perkhidmatan YM telah diberhentikan secara adil dan bersebab |
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