BULLETIN 09/2019

LATEST CASES (ILR Issue 08 of 2019)

SUBJECT INDEX

DISMISSAL

Breach of company rules and policies – Abuse of e-mail facilities – Whether the claimant had abused the bank's e-mail facilities – Factors to consider – Evidence adduced – Effect of – Whether the charge had been proven against her – Whether it had justified her dismissal – Whether dismissal without just cause and excuse
Marhaini Ariffin v. AmInvestment Bank Berhad
(Yong Soon Ching) [2019] 3 ILR 353 cljlaw labourlaw

Insolence – Gross insolence – Claimant failing to respond to the company's warning and show cause letters – Reasons for the same – Whether it had amounted to gross insolence and insubordination – Factors to consider – Evidence adduced – Evaluation of – Effect of – His defence – Whether could be accepted – Whether the charge had been proven by the company against him – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Jagvinder Singh Maghar Singh v. Motordata Research Consortium Sdn Bhd
(Bernard John Kanny) [2019] 3 ILR 248 cljlaw labourlaw

Insubordination – Claimant failing to comply with the company's directives to undergo a medical examination – Whether the directive had been clear, unambiguous and a reasonable and legitimate one – Factors to consider – Effect of – What his conduct had shown – Whether his actions had constituted insubordination – His explanations – Whether could be accepted – Whether his dismissal had been justified under the circumstances
Jagvinder Singh Maghar Singh v. Motordata Research Consortium Sdn Bhd
(Bernard John Kanny) [2019] 3 ILR 248 cljlaw labourlaw

Misconduct – Whether the claimant had abused the bank's whistleblowing policy – Factors to consider – Evidence adduced – Evaluation of – Effect of – The company's actions towards her – What it had shown – Claimant's defence – Whether could be accepted – Whether the company had been reasonable in dismissing her – Whether dismissal without just cause and excuse
Marhaini Ariffin v. AmInvestment Bank Berhad
(Yong Soon Ching) [2019] 3 ILR 353 cljlaw labourlaw

Misconduct – Whether the claimant had distributed the company's confidential information to third parties without approval – Evidence adduced – Evaluation of – Effect of – Whether the charge had been proven by the company against him – Whether it had justified his dismissal – Whether dismissal without just cause and excuse
Jagvinder Singh Maghar Singh v. Motordata Research Consortium Sdn Bhd
(Bernard John Kanny) [2019] 3 ILR 248 cljlaw labourlaw

DOMESTIC INQUIRY

Representation – Claimant failing to attend despite being aware of it – Whether he had denied himself the right to be heard – Effect of
Jagvinder Singh Maghar Singh v. Motordata Research Consortium Sdn Bhd
(Bernard John Kanny) [2019] 3 ILR 248 cljlaw labourlaw

EVIDENCE

Documentary evidence – Findings of the DI – Whether perverse – Factors to consider – Effect of
Jagvinder Singh Maghar Singh v. Motordata Research Consortium Sdn Bhd
(Bernard John Kanny) [2019] 3 ILR 248 cljlaw labourlaw

INDUSTRIAL COURT

Award – Appeal against – Domestic inquiry found employee guilty of misconduct – Insubordination against superior – Employee downgraded from position and transferred without change in salary – Matter referred to Industrial Court – Industrial Court found employee defiant and committed acts of insubordination – Industrial Court found employer's decision to downgrade employee could not be subject of claim for constructive dismissal – Industrial Court's award quashed by High Court – Whether findings of Industrial Court tainted with illegality and irrationality – Whether warranted intervention by High Court
Sunway University College v. Mahkamah Perusahaan Malaysia & Anor
(Tengku Maimun Tuan Mat, Mary Lim & Hasnah Mohammed Hashim JJCA) [2019] 3 ILR 215 cljlaw labourlaw

Jurisdiction – Claimant abandoning his prayer for reinstatement during the course of the hearing – Whether the Industrial Court had jurisdiction to hear the matter – Factors to consider – Effect of – Whether the claimant's claim then became an abuse of the court process
Nabil Abdul Malik v. Hufcor Maroshumi Sdn Bhd
(Franklin Goonting) [2019] 3 ILR 282 cljlaw labourlaw

Jurisdiction – Whether the Industrial Court had the jurisdiction to adjudicate on this matter – Factors to consider – Effect of – Whether the 1st respondent had been a proper party to the application – Industrial Relations Act 1967, s. 56(2)
Rajasekar K Suppiah & Ors v. Malaysian Airline System Berhad & Anor
(Noor Ruwena Mohd Nurdin) [2019] 3 ILR 366 cljlaw labourlaw

LABOUR LAW

Employment – Compensation – Claim for – Employees suffered severe injuries from fire and explosion at factory – Employees instituted action against employers for damages – Whether employees' claim barred under s. 31 of Employees' Social Security Act 1969 – Whether employees had already applied and received compensation from Social Security Organisation of Malaysia (SOCSO) – Whether employees' injuries came within definition of employment injuries – Whether double recovery allowed
Palmamide Sdn Bhd & Anor v. Rajendiran Manickam & Anor
(SM Komathy Suppiah J) [2019] 3 ILR 209 cljlaw labourlaw

Employment – Constructive dismissal – Allegation of – Domestic inquiry found employee guilty of misconduct – Insubordination against superior – Employee downgraded from position and transferred without change in salary – Matter referred to Industrial Court – Industrial Court found employee defiant and committed acts of insubordination – Industrial Court found employer's decision to downgrade employee could not be subject of claim for constructive dismissal – Whether employee constructively dismissed
Sunway University College v. Mahkamah Perusahaan Malaysia & Anor
(Tengku Maimun Tuan Mat, Mary Lim & Hasnah Mohammed Hashim JJCA) [2019] 3 ILR 215 cljlaw labourlaw

Employment – Injury of employee – Claim for compensation – Employees suffered severe injuries from fire and explosion at factory – Employees instituted action against employers for damages – Whether employees' claim barred under s. 31 of Employees' Social Security Act 1969 – Whether employees had already applied and received compensation from Social Security Organisation of Malaysia (SOCSO) – Whether employees' injuries came within definition of employment injuries – Whether double recovery allowed
Palmamide Sdn Bhd & Anor v. Rajendiran Manickam & Anor
(SM Komathy Suppiah J) [2019] 3 ILR 209 cljlaw labourlaw

NON-COMPLIANCE

Collective Agreement – Articles in the CA in relation to hours of work, overtime payment and public holiday payment – Whether the complainants had succeeded in establishing non-compliance by the respondents to those articles – Factors to consider – Evidence adduced – Effect of – Whether there had been non-compliance by the respondents to the articles in the CA
Rajasekar K Suppiah & Ors v. Malaysian Airline System Berhad & Anor
(Noor Ruwena Mohd Nurdin) [2019] 3 ILR 366 cljlaw labourlaw

TRADE DISPUTE

Collective Agreement – Terms and conditions of service – Article on duration and termination of agreement – Determination of the duration of the CA and its termination notice – Factors to consider – Effect of – Industrial Relations Act, 1967 s. 30(7)
Golden Sands Beach Resort Sdn Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia
(P Iruthayaraj D Pappusamy) [2019] 3 ILR 288 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on salary structure and annual increment – Annual increment – Whether the hotel's proposal ought to be adopted – Factors to consider – Effect of
Golden Sands Beach Resort Sdn Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia
(P Iruthayaraj D Pappusamy) [2019] 3 ILR 288 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on salary structure and annual increment – Appendix B on salary scale and structure – Whether the hotel's proposal ought to be adopted – Factors to consider – Effect of
Golden Sands Beach Resort Sdn Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia
(P Iruthayaraj D Pappusamy) [2019] 3 ILR 288 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on salary structure and annual increment – Immediate increment – Determination on what percentage would be fair and equitable to adopt – Factors to consider – Effect of – Industrial Relations Act, 1967 s. 30(5)
Golden Sands Beach Resort Sdn Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia
(P Iruthayaraj D Pappusamy) [2019] 3 ILR 288 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Article on service charge – Whether the hotel's proposal to use part of the service charge to make up the minimum wage ought to be adopted – Factors to consider – Effect of
Golden Sands Beach Resort Sdn Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia
(P Iruthayaraj D Pappusamy) [2019] 3 ILR 288 cljlaw labourlaw

Collective Agreement – Terms and conditions of service – Whether the article on salary adjustment ought to be allowed – Factors to consider – Evidence adduced – Effect of – 1st CA executed between the parties – Effect of
Kesatuan Kebangsaan Pekerja Perusahaan Petroleum Dan Kimia Semenanjung Malaysia v. BASF (Malaysia) Sdn Bhd
(Sumathi Murugiah) [2019] 3 ILR 394 cljlaw labourlaw

VARIATION ORDER

Award – Whether the applicant's application to vary the Award ought to be allowed – Factors to consider – Effect of – Whether the Award had contained any ambiguity or uncertainty to its terms, that had justified a variation of it – Whether the IC by handing down the Award, had been rendered functus officio – Industrial Relations Act 1967, ss. 30(5) & 33(2)
Rajakumar Kuppusamy v. One World Hotel Sdn Bhd
(Paramalingam J Doraisamy) [2019] 3 ILR 275 cljlaw labourlaw

INDEKS PERKARA

MAHKAMAH PERUSAHAAN

Bidang kuasa – Sama ada keputusan mahkamah berkenaan artikel-artikel 25, 41 dan 42 untuk Perjanjian Kolektif ke-8 menghalangnya dari mendengar pertikaian perdagangan ini – Sama ada mahkamah adalah functus officio ke atas artikel-artikel tersebut – Faktor-faktor yang harus diambil kira – Kesannya
Kesatuan Kebangsaan Pekerja-pekerja Syarikat-syarikat Pembuat Keluaran Getah lwn. Rubberex (M) Sdn Berhad
(Rasidah Chik) [2019] 3 ILR 230 cljlaw labourlaw

Prosedur – Tindakan – Sama ada isu estoppel dan res judicata terpakai dalam kes ini – Faktor-faktor yang harus diambil kira – Kesannya
Kesatuan Kebangsaan Pekerja-pekerja Syarikat-syarikat Pembuat Keluaran Getah lwn. Rubberex (M) Sdn Berhad
(Rasidah Chik) [2019] 3 ILR 230 cljlaw labourlaw

PERTIKAIAN PERDAGANGAN

Perjanjian Kolektif – Terma dan syarat – Artikel-artikel berkenaan medical benefits, salary conversion/implementation, retirement age and retirement benefits dan annual bonus – Sama ada permohonan kesatuan bagi artikel-artikel tersebut harus dibenarkan – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya
Kesatuan Kebangsaan Pekerja-pekerja Syarikat-syarikat Pembuat Keluaran Getah lwn. Rubberex (M) Sdn Berhad
(Rasidah Chik) [2019] 3 ILR 230 cljlaw labourlaw

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