LATEST CASES (ILR Issue 9 of 2017)

SUBJECT INDEX

CONTRACT OF EMPLOYMENT

Existence of - Whether there had existed a post-retirement contract of employment between the parties - Whether the elements to show the existence of a contract had been fulfilled - Factors to consider - Evidence adduced - Effect of - Whether the claimant by virtue of his retirement had ceased to be an employee of the company - Whether the claimant had been dismissed by the company
Mohd Redha Talib v. Padiberas Nasional Berhad
(Noor Ruwena Dato' Mohd Nurdin) [2017] 3 ILR 578

Type of - Claimant offered a conditional contract of employment which did not materialise - Retired claimant - Whether retirement always justified the termination of service of a workman - Whether he had ceased employment with the company after his retirement - Factors to consider - Evidence adduced - Evaluation of - Whether the remedy of reinstatement had been available to him - Where the proper forum for redress had been for him - Whether he had been dismissed by the company - Whether his dismissal had been with just cause and excuse
Mohd Redha Talib v. Padiberas Nasional Berhad
(Noor Ruwena Dato' Mohd Nurdin) [2017] 3 ILR 578

DISMISSAL

Breach of company rules and policies - Assault - Claimant terminated by the hotel for assaulting her colleague - Whether the charges had been proven against her - Evidence adduced - Effect of - Whether the punishment of dismissal had been justified under the circumstances - Factors to consider - Claimant serving the company for 4 years and being in possession of the Employee's Handbook - Whether she should have known better - Whether her misconduct had been serious - Whether her dismissal had been carried out with just cause and excuse
Asmajida Md Daud v. Shangri-La Hotel (KL) Sdn Bhd
(Mary Shakila G Azariah) [2017] 3 ILR 515

Breach of company rules and policies - Assault - Claimants terminated by the respondent company for assaulting their colleague - Whether the charges had been proven against them - Evidence adduced - Effect of - Whether the punishment of dismissal had been justified under the circumstances - Factors to consider - Claimants' explanations - Whether acceptable and proven by the evidence - Evaluation of the evidence - Whether their misconduct had been serious - Whether their dismissals had been carried out with just cause and excuse
Jayakumar Pathmanathan & Anor v. Robert Bosch Power Tools Sdn Bhd
(Domnic Selvam Gnanapragasam) [2017] 3 ILR 486

Breach of company rules and policies - Theft - Claimant stealing the property of his co-employee - Whether it had rendered the misconduct de minimis - Factors to consider - Effect of
Kishotharan S Seevaratnam v. Media Prima Berhad/Sistem Televisyen Malaysia Berhad
(Andersen Ong Wai Leong) [2017] 3 ILR 645

Breach of company rules and policies - Theft - Whether the claimant had stolen the property of his co-employee - Whether proven by the company - Factors to consider - Evidence adduced - Effect of - Claimant's defence - Whether it could be accepted - Whether the misconduct had destroyed the relationship of trust and confidence between the parties - Whether it had justified his dismissal - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Kishotharan S Seevaratnam v. Media Prima Berhad/Sistem Televisyen Malaysia Berhad
(Andersen Ong Wai Leong) [2017] 3 ILR 645

Constructive dismissal - Assault - Claimant assaulted by his colleague and lodging a complaint with the company - Company failing to apprise him of the outcome of the investigations - Effect of - Whether it had amounted to a fundamental breach of his contract of employment - Perusal of the company's Code of Conduct and Discipline - Effect of - Whether it had entitled the claimant walking out claiming constructive dismissal
Justin Maurice Read v. Petroliam Nasional Berhad (Petronas)
(Sarojini Kandasamy) [2017] 3 ILR 527

Constructive dismissal - Assault and harassment - Claimant assaulted, harassed, abused and taunted by his colleagues - Company's actions towards his complaints - Whether it had amounted to a breach of a fundamental term of his contract of employment - Whether it had entitled him to walk out of his employment and claim constructive dismissal - Factors to consider - Effect of - Whether he had delayed in claiming constructive dismissal - Evidence adduced - Evaluation of - Whether the claimant had been constructively dismissed by the company - Whether dismissal without just cause and excuse
Justin Maurice Read v. Petroliam Nasional Berhad (Petronas)
(Sarojini Kandasamy) [2017] 3 ILR 527

Constructive dismissal - Harassment - Claimant harassed, abused and taunted by his colleagues - No action taken by the company despite him lodging a complaint with it - Effect of - Whether the conduct of the company had amounted to a repudiation of his contract of employment with it - Duty of the company towards the claimant as an employee - Effect of - Whether it had entitled the claimant to walk out claiming constructive dismissal - Factors to consider - Evidence adduced - Effect of - Whether he had been constructively dismissed by the company - Whether dismissal without just cause and excuse
Justin Maurice Read v. Petroliam Nasional Berhad (Petronas)
(Sarojini Kandasamy) [2017] 3 ILR 527

Retrenchment - Redundancy - Whether the claimant's positions had become redundant - Evidence adduced - Factors to consider - Effect of - Whether the claimant's duties, functions and responsibilities, in both his positions, had ceased or diminished in any way - Effect of - Company's actions towards him - Code of Conduct for Industrial Harmony not followed by the company - Whether it had had the force of law - Whether it had been fatal to the company's case - Factors to consider - Effect of - Whether a genuine redundancy situation had existed justifying his dismissal - Whether dismissal without just cause and excuse
Raul Fabrizio Casserini v. George Fischer (M) Sdn Bhd
(Sarojini Kandasamy) [2017] 3 ILR 613

Retrenchment - Reorganisation - Claimant terminated from employment - Reasons for the same - Whether the respondent company had been profitable at the material time - Factors to consider - Evidence adduced - Effect of - Whether the respondent company had incurred savings from the claimant's retrenchment - Factors to consider - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mohd Azhan Ariffin v. Ranhill Berhad
(Sumathi Murugiah) [2017] 3 ILR 496

Retrenchment - Restructuring - Whether the company's restructuring of its business had made the claimant's position redundant - Factors to consider - Evidence adduced - Effect of - Whether the company had been suffering financial losses at the time it had employed the claimant - Effect of - Whether the claimant's retrenchment had in fact been a cost saving measure - Factors to consider - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Raul Fabrizio Casserini v. George Fischer (M) Sdn Bhd
(Sarojini Kandasamy) [2017] 3 ILR 613

DOMESTIC INQUIRY

Procedural impropriety - Whether the DI had been properly convened - Factors to consider - Effect of - Whether the rules of natural justice had been complied with
Asmajida Md Daud v. Shangri-La Hotel (KL) Sdn Bhd
(Mary Shakila G Azariah) [2017] 3 ILR 515

EVIDENCE

Admissibility - Recordings of conversations - When admissible - Factors to consider - Effect of - Whether they had been admissible in this case
Justin Maurice Read v. Petroliam Nasional Berhad (Petronas)
(Sarojini Kandasamy) [2017] 3 ILR 527

Adverse inference - Company failing to call Sven as a witness - Whether he had been an important and material witness for this matter - Factors to consider - Effect of - Whether an adverse inference ought to be drawn against the company for his non-attendance - Evidence Act 1950, s. 114(g)
Raul Fabrizio Casserini v. George Fischer (M) Sdn Bhd
(Sarojini Kandasamy) [2017] 3 ILR 613

Standard of proof - What the standard of proof had been for misconduct of a criminal nature - Whether the company had acted reasonably in dismissing the claimant - Factors to consider - Evidence adduced - Effect of - Whether discharged by the company - Whether dismissal with just cause and excuse
Kishotharan S Seevaratnam v. Media Prima Berhad/Sistem Televisyen Malaysia Berhad
(Andersen Ong Wai Leong) [2017] 3 ILR 645

INDUSTRIAL COURT

Jurisdiction - Retired claimant - Whether his retirement had brought his contract of employment to an end - Whether the remedy under s. 20 of the Industrial Relations Act 1967 had been available to him - Factors to consider - Effect of - Whether the Industrial Court had jurisdiction to hear this matter - Industrial Relations Act 1967, ss. 2 & 20(1)
Mohd Redha Talib v. Padiberas Nasional Berhad
(Noor Ruwena Dato' Mohd Nurdin) [2017] 3 ILR 578

Jurisdiction - Threshold jurisdiction of the Industrial Court - Date of the alleged dismissal at variance with the date as stated in the ministerial reference - Effect of - Whether the Industrial Court had had jurisdiction to hear the matter - Factors to consider - Effect of
Tore Nedregaard v. Petrofac (Malaysia-PM304) Limited
(Gulam Muhiaddeen Abdul Aziz) [2017] 3 ILR 453

Jurisdiction - Whether the Industrial Court had the jurisdiction to stay its own proceedings - Factors to consider - Effect of - Industrial Relations Act 1967, s. 29(g)
Justeen Clements v. Matrix Global Schools (Matrix Global Education Sdn Bhd)
(Andersen Ong Wai Leong) [2017] 3 ILR 604

Procedure - Action - Whether the Industrial Court had the jurisdiction to stay its own proceedings pending arbitration - Whether the Arbitration Act had applied to it - Factors to consider - Effect of - Arbitration Act 2005, s. 10 & Industrial Relations Act 1967, s. 29(g)
Justeen Clements v. Matrix Global Schools (Matrix Global Education Sdn Bhd)
(Andersen Ong Wai Leong) [2017] 3 ILR 604

Procedure - Action - Whether the principles of estoppel, limitation and laches had any application in industrial jurisprudence - Whether the claimant who had accepted the company's severance package had now been estopped from bringing this action - Factors to consider - Effect of
Raul Fabrizio Casserini v. George Fischer (M) Sdn Bhd
(Sarojini Kandasamy) [2017] 3 ILR 613

Procedure - Pleadings - Whether submissions from the Bar should be given any weight - Whether parties had been bound by their pleadings
Raul Fabrizio Casserini v. George Fischer (M) Sdn Bhd
(Sarojini Kandasamy) [2017] 3 ILR 613

Remedies - Backwages - What would be an appropriate amount to award - Factors to consider - Effect of
Raul Fabrizio Casserini v. George Fischer (M) Sdn Bhd
(Sarojini Kandasamy) [2017] 3 ILR 613

Remedies - Punishment - Claimant possessing an unblemished service record of 23 years with the company - Whether dismissal had been too harsh under the circumstances - Factors to consider - Effect of - Whether unblemished past records could be used as a justification against the punishment of dismissal
Kishotharan S Seevaratnam v. Media Prima Berhad/Sistem Televisyen Malaysia Berhad
(Andersen Ong Wai Leong) [2017] 3 ILR 645

Remedies - Reinstatement - Whether appropriate to grant here - Claimant on a fixed-term contract - Effect of
Raul Fabrizio Casserini v. George Fischer (M) Sdn Bhd
(Sarojini Kandasamy) [2017] 3 ILR 613

Remedies - Reinstatement - Whether the remedy of reinstatement had been available to the claimant - Factors to consider - Effect of
Mohd Redha Talib v. Padiberas Nasional Berhad
(Noor Ruwena Dato' Mohd Nurdin) [2017] 3 ILR 578

LABOUR LAW

Dismissal - Constructive dismissal - Employee told to leave employment - Employee to be paid bonus and salary increment if resignation is done voluntarily - Employee gave employer three months' notice of resignation as required by contract of employment - Employee enjoyed monthly salary, increment and bonus during three months' notice - Whether resignation voluntary - Whether employee constructively dismissed - Whether there was any conduct by employer which rendered continued employment impossible, unreasonable and unbearable
Southern Investment Bank Bhd/Southern Bank & Anor v. Yap Fat & Anor
(Mohd Zawawi Salleh JJCA, Abdul Rahman Sebli JJCA & Prasad Sandosham Abraham JJCA) [2017] 3 ILR 433

INDEKS PERKARA

KETERANGAN

Keterangan dokumentari - Tafsiran Perjanjian Kolektif - Sama ada ianya berbeza daripada prinsip yang diguna pakai bagi tujuan tafsiran dokumen kontrak komersial - Faktor-faktor yang harus diambil kira – Kesannya
Kesatuan Pekerja-Pekerja Percetakan Nasional Malaysia Berhad Semenanjung Malaysia (KPPPNMBSM) lwn. Percetakan Nasional Malaysia Berhad (PNMB)
(Ishak Mohd Yusoff) [2017] 3 ILR 475

KETIDAKPATUHAN

Perjanjian Kolektif - Sama ada kandungan art. 39.1 Perjanjian Kolektif tersebut memperuntukkan kenaikan gaji secara tahunan atau secara bulanan - Keterangan yang dikemukakan - Kesannya - Faktor-faktor yang harus diambil kira - Sama ada pihak syarikat telah gagal untuk mematuhi peruntukan Perjanjian Kolektif tersebut – Kesannya
Kesatuan Pekerja-Pekerja Percetakan Nasional Malaysia Berhad Semenanjung Malaysia (KPPPNMBSM) lwn. Percetakan Nasional Malaysia Berhad (PNMB)
(Ishak Mohd Yusoff) [2017] 3 ILR 475

KONTRAK PERKHIDMATAN

Jenis - Kontrak perkhidmatan tempoh tetap - Sama ada kontrak perkhidmatan YM merupakan satu kontrak perkhidmatan tempoh tetap - Faktor-faktor yang harus diambil kira - Keterangan yang dikemukakan – Kesannya
Darmawatti Dahri lwn. Biro Pengantaraan Kewangan
(Ahmad Rosli Mohd Sham) [2017] 3 ILR 446

Jenis - Sama ada kontrak perkhidmatan tempoh tetap YM adalah tulen - Umur YM ketika kontraknya tidak diperbaharui - Sama ada YM mempunyai satu jangkaan yang sah (legitimate expectation) untuk jaminan pekerjaan yang berterusan - Faktor-faktor yang harus diambil kira – Kesannya
Darmawatti Dahri lwn. Biro Pengantaraan Kewangan
(Ahmad Rosli Mohd Sham) [2017] 3 ILR 446