LATEST CASES (ILR Issue 8 of 2020)

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review – Exercise of discretion – Minister referred employee's representation to Industrial Court – Employee dismissed from employment as guard at United States Embassy – Whether embassy immune from jurisdiction of Industrial Court – Whether Minister has wide discretionary power under s. 20(3) of the Industrial Relations Act 1967 to resolve issue of sovereign jurisdiction – Whether representation frivolous and vexatious – Industrial Relations Act 1967, s. 20
The United States Of America v. Menteri Sumber Manusia Malaysia & Ors
(Nordin Hassan J) [2020] 3 ILR 265

CONTRACT

Termination – Validity – Employment contract – Whether employee employed on permanent contract or fixed term contract – Former employer consolidated with present employer – Contract of employment renewed successively without application by employee and without intermittent break – Whether corporate veil ought to be lifted to show continuity of employment – Whether both employers part and parcel of same group – Whether dismissal without just cause or excuse
Ahmad Zahri Mirza Abdul Hamid v. AIMS Cyberjaya Sdn Bhd
(Tengku Maimun Tuan Mat CJ, Mohd Zawawi Salleh, Idrus Harun, Nallini Pathmanathan, Abdul Rahman Sebli FCJJ) [2020] 3 ILR 233

CONTRACT OF EMPLOYMENT

Type of – Whether the claimant had been employed on a genuine fixed-term contract – Factors to consider – Evidence adduced – Evaluation of – Effect of – Company's actions towards him – What it had shown – Whether his employment had been temporary in nature – Whether he had been dismissed – Whether dismissal without just cause and excuse
Azizi Azizan v. Jambatan Kedua Sdn Bhd
(Andersen Ong Wai Leong) [2020] 3 ILR 386

DISMISSAL

Breach of company rules and policies – Negligence – Claimant failing to ensure only original software installed in the computers of the company's staff, as per its policy and issued a stern warning – Whether he had repeated the misconduct – Effect of – Claimant subsequently dismissed for the same misconduct – Whether it had been double-jeopardy for him – Factors to consider – Evidence adduced – Effect of – Whether the company's actions towards him had been equitable – Whether the company's actions towards him had been an unfair labour practice – Whether dismissal without just cause and excuse
Hasrin Abdul Hamid v. Learning Port Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2020] 3 ILR 400

Breach of company rules and policies – Sexual harassment – Whether the claimant had sexually harassed the company's female employees – Factors to consider – Evidence adduced – Effect of – Whether the charge had been proven against him – Whether dismissal without just cause and excuse
Md Tarmizi Mohamad Yusof v. Canon Opto (Malaysia) Sdn Bhd
(Rajeswari Karupiah) [2020] 3 ILR 343

Constructive dismissal – Benefits – Company failing to remit the claimant's EPF, SOCSO and PCB benefits despite deducting his salary for the same – Reasons for the same – Whether could be accepted – Whether its failure had amounted to a fundamental breach of the contract of employment – Whether it had contravened its statutory obligations – Whether its actions had constituted a breach that had gone to the root of the contract of employment – Whether it had justified the claimant claiming constructive dismissal – Whether dismissal without just cause and excuse
Theva Pragash Kanapathy v. Matrix Power Network Sdn Bhd
(Paramalingam J Doraisamy) [2020] 3 ILR 320

Constructive dismissal – Claimant not provided an office when the company had shifted premises and having his work e-mail deleted – Whether it had obstructed him in performing his duties – Factors to consider – Evidence adduced – Effect of – Whether its actions had been a breach of the basic entitlement of an employee to be provided with a workplace – Whether it had, by its actions, evinced an intention to no longer be bound by the contract of employment
Theva Pragash Kanapathy v. Matrix Power Network Sdn Bhd
(Paramalingam J Doraisamy) [2020] 3 ILR 320

Constructive dismissal – Salary – Claimant's salary first delayed and then not being paid by the company – Company's reasons for the same – Whether it could be accepted – Factors to consider – Evidence adduced – Effect of – Whether it had been facing cash flow problems – Whether the company's actions had amounted to a breach of a fundamental term of his contract of employment – Whether it had been sufficient to claim constructive dismissal – Effect of
Theva Pragash Kanapathy v. Matrix Power Network Sdn Bhd
(Paramalingam J Doraisamy) [2020] 3 ILR 320

Criminal conviction – Claimant convicted and sentenced in the Syariah High Court for khalwat – Whether the Syariah High Court had been a “court of law” – Factors to consider – Effect of – Whether he had been in breach of the Company's Handbook
Md Tarmizi Mohamad Yusof v. Canon Opto (Malaysia) Sdn Bhd
(Rajeswari Karupiah) [2020] 3 ILR 343

Misconduct – Claimant caught by JAWI for khalwat, convicted and subsequently sentenced – Whether it had constituted serious misconduct – Factors to consider – Evidence adduced – Effect of – Whether the charge had been proven against him – Whether his actions had affected the company's good name and tarnished its image and reputation – Claimant's defence – Whether could be accepted – Whether his arrest by JAWI had been a private matter – Effect of – Whether his dismissal had been warranted under the circumstances – Whether dismissal without just cause and excuse
Md Tarmizi Mohamad Yusof v. Canon Opto (Malaysia) Sdn Bhd
(Rajeswari Karupiah) [2020] 3 ILR 343

Misconduct – Claimant failing to ensure only original software installed in the computers of the company's staff, as per its policy and issued a stern warning – Subsequently dismissed from service – Whether he had suffered double jeopardy which had been an unfair labour practice – Whether the principle of double-jeopardy had only been applicable to criminal cases – Factors to consider – Effect of – Federal Constitution, art. 7
Hasrin Abdul Hamid v. Learning Port Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2020] 3 ILR 400

Retrenchment – Redundancy – Claimant retrenched – Whether it had been carried out bona fide – Factors to consider – Evidence adduced – Effect of – Position held by the claimant – Whether the claimant's claim had been supported by the evidence – Effect of – Whether the claimant had been dismissed without just cause and excuse
Chan Wai Foong v. Iris Corporation Berhad
(Nor Afizah Hanum Mokhtar) [2020] 3 ILR 380

Retrenchment – Redundancy – Company's reasons for the same – Whether proven by the evidence – Factors to consider – Evidence adduced – Evaluation of the evidence – Effect of
Kavitha Santadana Raja v. SGB MY Sdn Bhd
(Syed Noh Said Nazir) [2020] 3 ILR 278

Retrenchment – Redundancy – Whether the claimant had been the only employee that had been retrenched – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had exercised its managerial power bona fide – Whether it had rendered the claimant's dismissal as being without just cause and excuse
Kavitha Santadana Raja v. SGB MY Sdn Bhd
(Syed Noh Said Nazir) [2020] 3 ILR 278

Retrenchment – Redundancy – Whether the claimant's position had become redundant – Job functions performed by the claimant – Whether her job functions had continued to exist after her dismissal – Whether the reassignment of her job functions had been economically prudent – Whether proven by the company – Evidence adduced – Effect of – Whether the retrenchment exercise had been carried out bona fide by the company
Kavitha Santadana Raja v. SGB MY Sdn Bhd
(Syed Noh Said Nazir) [2020] 3 ILR 278

EVIDENCE

Documentary evidence – Statutory Declaration by the Chairman of the company, adduced by the claimant into evidence, being objected to by the company – Reasons for the same – What the company should have done – Whether an adverse inference ought to be drawn against it – Effect of – Evidence Act 1950, s. 114(g)
Theva Pragash Kanapathy v. Matrix Power Network Sdn Bhd
(Paramalingam J Doraisamy) [2020] 3 ILR 320

INDUSTRIAL COURT

Jurisdiction – Whether the Industrial Court had been seized with jurisdiction to hear the matter
Chan Wai Foong v. Iris Corporation Berhad
(Nor Afizah Hanum Mokhtar) [2020] 3 ILR 380

Jurisdiction – Whether the Industrial Court had the threshold jurisdiction to hear the matter – Factors to consider – Evidence adduced – Effect of – Whether the respondent company had been a statutory authority under the Industrial Relations Act 1967 – Evaluation of the evidence – Effect of – Industrial Relations Act 1967, ss. 2, 20(1), 29(fa), 29(g) & 52(1)
Muhammad Ghazali Abdul Aziz v. Pembangunan Sumber Manusia Berhad
(Andersen Ong Wai Leong) [2020] 3 ILR 358

LABOUR LAW

Employment – Termination – Whether employee employed on permanent contract or fixed term contract – Former employer consolidated with present employer – Contract of employment renewed successively without application by employee and without intermittent break – Whether corporate veil ought to be lifted to show continuity of employment – Whether citizenship of employee deciding factor of nature of employment – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 2 & 20
Ahmad Zahri Mirza Abdul Hamid v. AIMS Cyberjaya Sdn Bhd
(Tengku Maimun Tuan Mat CJ, Mohd Zawawi Salleh, Idrus Harun, Nallini Pathmanathan, Abdul Rahman Sebli FCJJ) [2020] 3 ILR 233

Jurisdiction – Industrial Court – Employee dismissed from employment as guard at United States Embassy – Minister referred employee's representation to Industrial Court – Whether embassy immune from jurisdiction of Industrial Court – Test – Whether act done by state in exercise of sovereign authority or act of private nature – Whether employee was performing governmental and sovereign functions – Whether Minister erred in referring representation to Industrial Court – Industrial Relations Act 1967, s. 20
The United States Of America v. Menteri Sumber Manusia Malaysia & Ors
(Nordin Hassan J) [2020] 3 ILR 265

RADE DISPUTE

Collective Agreement – Terms and conditions of service – Article on annual leave and retirement benefits – Whether the company had unilaterally changed the benefits under the two articles of the CA by way of its Circular – Factors to consider – Evidence adduced – Effect of – Conduct of the union – What it had shown – Whether the financial position of the company had been relevant – Effect of
Kesatuan Eksekutif Felcra Berhad v. Felcra Berhad
(Augustine Anthony) [2020] 3 ILR 367

INDEKS PERKARA

PEMBUANGAN KERJA

Ketidakpatuhan terhadap peraturan dan polisi syarikat – Ketidakjujuran – Sama ada YM telah melakukan penyelewengan di dalam urus niaga perniagaan syarikat responden – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada salah laku-salah laku tersebut berjaya dibuktikan oleh syarikat responden terhadapnya – Penjelasan YM – Sama ada dapat diterima – Sama ada salah laku-salah laku YM merupakan salah laku-salah laku yang serius yang mewajarkan pembuangan kerjanya – Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab
Choo San Guan lwn. U-Travelwide Sdn Bhd
(Kalmizah Salleh) [2020] 3 ILR 300

Penghematan – Sama ada responden perlu mengguna pakai prinsip LIFO untuk pekerja-pekerja yang mahir dan kompeten – Kesannya
Roslan Mohd Tahir & Yang Lain lwn. City Facilities Management Sdn Bhd
(Domnic Selvam Gnanapragasam) [2020] 3 ILR 413

Penghematan – YM diberhentikan kerja atas alasan penghematan – Sama ada tindakan responden telah dilakukan secara bona fide – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada pemberhentian kerja YM atas alasan penghematan telah dilakukan secara adil dan bersebab
Roslan Mohd Tahir & Yang Lain lwn. City Facilities Management Sdn Bhd
(Domnic Selvam Gnanapragasam) [2020] 3 ILR 413