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LATEST CASES (ILR Issue 8 of 2018)
SUBJECT INDEX
ADMINISTRATIVE LAW
Judicial review – Application for – Application to quash decision of
Minister giving recognition to trade union – Appeal against High Court
Judge’s refusal to quash decision of Minister – Whether valid questions of
law arose for consideration – Whether abuse of court process – Whether
courts permitted to scrutinise decision for process and substance –
Whether relevant information furnished – Whether bank consented to
procedure relating to ballot by employees concerned – Whether
documents submitted for purpose of secret balloting referred to officers in
relevant category – Whether bank could deny trade union its recognition
– Industrial Relations Act 1967, s. 9
RHB Bank Bhd v. YB Menteri Sumber Manusia Malaysia & Anor
(Hamid Sultan Abu Backer, Varghese George & Zamani A
Rahim JJCA) [2018] 3 ILR 193
CONTRACT OF EMPLOYMENT
Terms and conditions – Notice of termination – Claimant employed by
one company but terminated by another – Determination of who the
claimant’s true employer had been – Factors to consider – Evidence
adduced – Evaluation of – Effect of – Whether this claim had been rightly
brought against the company
Bala Sandran Krishnasamy v. Beauty Land Enterprise
(Mohd Dusuki Mokhtar) [2018] 3 ILR 208
Terms and conditions – Notice of termination – Claimant terminated on
the same day she was given termination letter – What it had shown –
Respondent company’s conduct towards her – Whether she had been
summarily dismissed by the respondent company
Chok Siew Keng v. The Pacific Insurance Berhad
(Tan Ghee Phaik) [2018] 3 ILR 364
Type of – Fixed-term contract – Claimant tendering his resignation before
the expiry of the fixed-term contract and later withdrawing it based on the
assurances of COWS1 – Whether COWS1 had had the authority to renew
the contract – Factors to consider – Evidence adduced – Evaluation of –
Effect of – Whether the communications between the claimant and
COWS1 had been mere proposals – What the intentions of the parties to
the contract had been – Evaluation of the contract – Whether the wording
had been clear and unambiguous – Whether it had in fact been a
permanent contract – Effect of – Whether the claimant had been dismissed
– Whether dismissal without just cause and excuse
Elias Md Kadir Baba v. Keretapi Tanah Melayu Berhad
(Jamil Aripin) [2018] 3 ILR 275
Type of – Fixed-term contract – Whether the claimant had had a
legitimate expectation that his contract would be renewed – Factors to
consider – Evidence adduced – Effect of – Claimant’s actions – What it
had shown – Whether it had been a genuine fixed-term contract – Whether
there had been a dismissal – Whether dismissal without just cause and
excuse
Elias Md Kadir Baba v. Keretapi Tanah Melayu Berhad
(Jamil Aripin) [2018] 3 ILR 275
DISMISSAL
Breach of company rules and policies – Dishonesty – Whether the
claimant had utilised the company’s resources for personal matters during
office hours – Factors to consider – Evaluation of the evidence – Effect of
– Whether it had been such a serious misconduct warranting her dismissal
Chok Siew Keng v. The Pacific Insurance Berhad
(Tan Ghee Phaik) [2018] 3 ILR 364
Breach of company rules and policies – Medical leave – Claimant taking
part in the said gathering on the same day that she had been on medical
leave – Whether it had constituted serious misconduct which had
warranted her dismissal – Factors to consider – Evidence adduced – Effect
of – Claimant’s explanations – Whether acceptable – Whether it had
justified her dismissal – Whether her dismissal had been with just cause
and excuse
Maria Hastuti Bachtiar v. Malaysian Airline System Berhad
(Yong Soon Ching) [2018] 3 ILR 265
Breach of company rules and policies – Medical leave – Whether the
claimant had been working at the Ramadhan Bazaar whilst he had been on
MC – Factors to consider – Evidence adduced – Evaluation of – Whether
the company had succeeded in proving the misconduct against him –
Claimant’s defence – Whether acceptable – Whether dismissal without
just cause and excuse
Mohd Nazry Aripin v. Indah Water Konsortium Sdn Bhd
(Nor Afizah Hanum Mokhtar) [2018] 3 ILR 318
Breach of company rules and policies – Medical leave – Whether the
claimant had taken part in the said gathering on the same day that she had
been on medical leave – Company’s actions towards her – What it had
shown – What the company should have done – Whether the company
had complied with the rules of natural justice – Effect of
Maria Hastuti Bachtiar v. Malaysian Airline System Berhad
(Yong Soon Ching) [2018] 3 ILR 265
Breach of company rules and policies – Negligence – Whether the
policies prepared by the claimant had contained errors – Factors to
consider – Evaluation of the evidence – Effect of – Whether she had been
solely responsible for the errors – Claimant’s defence – Whether could be
accepted
Chok Siew Keng v. The Pacific Insurance Berhad
(Tan Ghee Phaik) [2018] 3 ILR 364
Insubordination – Claimant put on a Performance Improvement Plan
(‘PIP’) but refusing to comply – Series of e-mails exchanged between the
claimant and COW1 – Claimant’s position in the company – Claimant’s
conduct towards her – Whether he had been grossly insubordinate towards
her – Factors to consider – Evidence adduced – Effect of – Whether the
company had succeeded in proving gross insubordination on his part –
Actions taken by the company – Whether reasonable – What it had shown
– Claimant’s defence – Whether tenable – What he should have done –
Whether dismissal without just cause or excuse
Sin Kok Foong v. Grey Worldwide Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2018] 3 ILR 325
Misconduct – Whether her alleged previous misconduct which had taken
place a decade earlier could be used against her as a ground for her
dismissal – Factors to consider – Effect of – No disciplinary action taken
against her at the time – What it had shown – Alleged previous
misconduct not a ground stated in her termination letter – Whether it
should be taken into consideration in considering whether her dismissal
had been with just cause and excuse
Chok Siew Keng v. The Pacific Insurance Berhad
(Tan Ghee Phaik) [2018] 3 ILR 364
Misconduct – Whether the claimant had allowed former staff to remain in
sensitive work areas – Whether she had been entrusted with such a duty
– Factors to consider – Evidence adduced – Effect of – Whether
misconduct proven by the company against her – Whether dismissal
without just cause and excuse
Chok Siew Keng v. The Pacific Insurance Berhad
(Tan Ghee Phaik) [2018] 3 ILR 364
Misconduct – Whether the claimant had been working whilst he had been
on MC – Whether the charge had been proven by the company against
him – What the company should have done – Whether dismissal without
just cause and excuse
Mohd Nazry Aripin v. Indah Water Konsortium Sdn Bhd
(Nor Afizah Hanum Mokhtar) [2018] 3 ILR 318
Misconduct – Whether the claimant had conducted her personal business
during office hours – Evidence adduced – Effect of – This charge not a
ground for her dismissal in her termination letter – Whether it could be
relied on at trial
Chok Siew Keng v. The Pacific Insurance Berhad
(Tan Ghee Phaik) [2018] 3 ILR 364
Misconduct – Whether the claimant had had a negative work attitude –
Factors to consider – Evidence adduced – Effect of – Whether the
respondent company’s charge had been baseless
Chok Siew Keng v. The Pacific Insurance Berhad
(Tan Ghee Phaik) [2018] 3 ILR 364
Misconduct – Whether the claimant had made negative remarks about the
company to former staff – Whether proven by the respondent company
against her – Whether the remarks had had any truth to them – Whether
it had constituted misconduct justifying her dismissal
Chok Siew Keng v. The Pacific Insurance Berhad
(Tan Ghee Phaik) [2018] 3 ILR 364
EVIDENCE
Adverse inference – Whether GSC had been a material witness – Factors
to consider – Company failing to call her to testify – Whether an adverse
inference ought to be drawn against it – Evidence Act 1950, s. 114(g)
Bala Sandran Krishnasamy v. Beauty Land Enterprise
(Mohd Dusuki Mokhtar) [2018] 3 ILR 208
Burden of proof – Whether discharged by the company – Whether the
company had succeeded in proving the misconduct against the claimant –
Evidence adduced – Evaluation of
Maria Hastuti Bachtiar v. Malaysian Airline System Berhad
(Yong Soon Ching) [2018] 3 ILR 265
Burden of proof – Whether discharged by the respondent company in
proving its case – Evaluation of the evidence adduced – Effect of
Chok Siew Keng v. The Pacific Insurance Berhad
(Tan Ghee Phaik) [2018] 3 ILR 364
Documentary evidence – Whether it had supported the charges brought
against the claimant – Factors to consider – Evaluation of – Effect of –
Whether the charge brought against her had been void ab initio for lack of
material particulars
Chok Siew Keng v. The Pacific Insurance Berhad
(Tan Ghee Phaik) [2018] 3 ILR 364
INDUSTRIAL COURT
Procedure – Action – Claimant dealing with three separate companies –
Whether the corporate veil ought to be lifted – Factors to consider –
Evidence adduced – Effect of – Whether the three companies had in effect
been one and the same – Whether there had been an element of fraud in
the company’s actions towards the claimant
Bala Sandran Krishnasamy v. Beauty Land Enterprise
(Mohd Dusuki Mokhtar) [2018] 3 ILR 208
Procedure – Pleadings – Union’s failure to plead the proposed Lump Sum
payment in its Statement of Case – Request made in open Court –
Whether the Industrial Court had been bound to consider it – Factors to
consider – Effect of – What the union should have done – Industrial
Relations Act 1967, s. 30(4)
Kesatuan Pekerja-pekerja Canon Opto (Malaysia) Sdn Bhd v. Canon Opto (Malaysia) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2018] 3 ILR 234
Remedies – Compensation in lieu of reinstatement – Whether ought to be
awarded to the claimant – Claimant dismissed three months before she
had been due to retire – Effect of
Maria Hastuti Bachtiar v. Malaysian Airline System Berhad
(Yong Soon Ching) [2018] 3 ILR 265
Remedies – Punishment – Mitigating factors – Claimant having an
exemplary record of service with the company for 6 years – Effect of –
Whether it could mitigate his serious misconduct – Whether dismissal had
been too harsh under the circumstances – Factors to consider – Effect of
Sin Kok Foong v. Grey Worldwide Sdn Bhd
(Noor Ruwena Mohd Nurdin) [2018] 3 ILR 325
LABOUR LAW
Trade union – Recognition – Minister giving recognition to trade union –
Appeal against – Whether valid questions of law arose for consideration
– Whether abuse of court process – Whether courts permitted to scrutinise
decision for process and substance – Whether relevant information
furnished – Whether bank consented to procedure relating to ballot by
employees concerned – Whether documents submitted for purpose of
secret balloting referred to officers in relevant category – Whether bank
could deny trade union its recognition – Industrial Relations Act 1967, s. 9
RHB Bank Bhd v. YB Menteri Sumber Manusia Malaysia & Anor
(Hamid Sultan Abu Backer, Varghese George & Zamani A Rahim JJCA) [2018] 3 ILR 193
NON-COMPLIANCE
Collective Agreement – Articles on retirement, duration and termination
of the agreement and legislation – Whether the company had failed to pay
the additional 1% in respect of the employees’ salaries within the scope of
the CA, when the contribution of the company had been increased to 13%
– Factors to consider – Evidence adduced – Effect of – What the mutual
understanding of the parties had been – CA remaining unchanged since
1988 – Effect of – Whether there had been non-compliance by the
company of the said articles in the CA – Whether the non-compliance
application ought to be allowed
Kesatuan Pekerja-Pekerja Perkilangan Perusahaan Makanan v. Malayan Flour Mills Berhad (Lumut Plant)
(Eddie Yeo Soon Chye) [2018] 3 ILR 225
TRADE DISPUTE
Collective Agreement – Terms and conditions of service – Article on
annual increment – Determination of what an employee’s annual
increment should be – Factors to consider – Effect of
Paper And Paper Products Manufacturing Employees’ Union v. SNC Industrial Laminates Sdn Bhd
(Rajendran Nayagam) [2018] 3 ILR 291
Collective Agreement – Terms and conditions of service – Article on
duration and termination – When the CA ought to take effect and its
duration – Factors to consider – Effect of – Industrial Relations Act 1967,
s. 30(7)
Paper And Paper Products Manufacturing Employees’ Union v. SNC Industrial Laminates Sdn Bhd
(Rajendran Nayagam) [2018] 3 ILR 291
Collective Agreement – Terms and conditions of service – Article on paid
public holiday – Whether the union members were entitled to all public
holidays gazetted by the Federal or State Governments and applicable to
the state of Johor – Factors to consider – Effect of
Paper And Paper Products Manufacturing Employees’ Union v. SNC Industrial Laminates Sdn Bhd
(Rajendran Nayagam) [2018] 3 ILR 291
Collective Agreement – Terms and conditions of service – Article on
recognition of the union – Whether the existing industry practice ought to
be followed – Factors to consider – Effect of
Paper And Paper Products Manufacturing Employees’ Union v. SNC Industrial Laminates Sdn Bhd
(Rajendran Nayagam) [2018] 3 ILR 291
Collective Agreement – Terms and conditions of service – Article on
retirement – Whether the company could disallow optional retirement for
male and female employees who attained the ages of 55 and 50 respectively – Normal industry practice – Effect of
Paper And Paper Products Manufacturing Employees’ Union v. SNC Industrial Laminates Sdn Bhd
(Rajendran Nayagam) [2018] 3 ILR 291
Collective Agreement – Terms and conditions of service – Article on
retirement benefit – Whether the union’s proposal that the company
credits a percentage of the employees’ basic salary as a retirement benefit
into the employees’ account with the Employees’ Provident Fund had
been a good proposal and ought to be adopted – Factors to consider –
Effect of – What would be a reasonable percentage to set – Reasons for the
same
Paper And Paper Products Manufacturing Employees’ Union v. SNC Industrial Laminates Sdn Bhd
(Rajendran Nayagam) [2018] 3 ILR 291
Collective Agreement – Terms and conditions of service – Article on
salary revision – Whether an increase of 6.5% of the basic salary as at
1 November 2012 to each employee, still in the company’s employment,
would be fair and equitable to award – Factors to consider – Effect of
Paper And Paper Products Manufacturing Employees’ Union v. SNC Industrial Laminates Sdn Bhd
(Rajendran Nayagam) [2018] 3 ILR 291
Collective Agreement – Terms and conditions of service – Article on shift
attendance allowance – Determination of – Factors to consider – Effect of
Paper And Paper Products Manufacturing Employees’ Union v. SNC Industrial Laminates Sdn Bhd
(Rajendran Nayagam) [2018] 3 ILR 291
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