LATEST CASES (ILR Issue 9 of 2020)

SUBJECT INDEX

ADMINISTRATIVE LAW

Public officer – Deprivation of promotion – Allegations of – Public officer investigated into following allegations of improper expenditure and abuse of authority – Allegations by public officer that he missed out on promotions to higher salary grades due to being shabbily dealt with in disciplinary proceedings – Whether disciplinary proceedings cause of public officer missing out on promotions – Whether warning letter issued to public officer amounted to punishment – Whether disciplinary proceedings properly convened – Whether public officer entitled to promotion – Whether promotion guaranteed
Ang Ek Koon v. Director, Public Works Department Sarawak & Ors
(Umi Kalthum Abdul Majid, Ab Karim Ab Jalil JJCA & Ravinthran Paramaguru J) [2020] 3 ILR 425

CONTRACT OF EMPLOYMENT

Terms and conditions – Resignation – Whether the claimant’s resignation had brought her permanent contract of employment to an end – Factors to consider – Evidence adduced – Evaluation of – Effect of – Intention of the parties – When the Notice of Resignation had become effective
Rozainah Awang v. MISC Berhad
(Teoh Chin Chong) [2020] 3 ILR 605

Type of – Whether the claimant had been employed on genuine fixed-term contracts – Whether she had had a legitimate expectation to continue in employment – Factors to consider – Evidence adduced – Effect of – Evaluation of the terms and conditions of her contracts of employment – What it had shown – Whether the company had dismissed her – Employment Act 1955, s. 11
Rozainah Awang v. MISC Berhad
(Teoh Chin Chong) [2020] 3 ILR 605

Type of – Whether the claimant had been on a fixed-term contract or a permanent employee – Factors to consider – Evidence adduced – Effect of – SHRD system showing his employment as indefinite and then being changed to fixed-term – Whether it had been a mistake in the system – Effect of – Company’s explanations on the mistake – Whether it could be accepted – Claimant signing his extension letter after taking a screenshot of the SHRD system with the mistake in it – What his actions had shown – What he should have done instead – Company’s dealing with him – What it had shown – Whether AM had promised him permanent employment – Evidence adduced – Effect of – Evaluation of the claimant’s character – What it had reflected – Whether the claimant had been dismissed by the company – Whether his dismissal had been without just cause and excuse
Ong Shy Boon v. Sarawak Shell Berhad
(Ani Ak Solep) [2020] 3 ILR 467

Type of – Whether the claimant had been on genuine fixed-term contracts or had remained a permanent employee of the company – Factors to consider – Evidence adduced – Effect of – Company’s action towards her – What it had shown – Claimant’s admissions in evidence – Effect of – Whether there had been a dismissal – Whether the fixed-term contracts of employment had come to an end due to the effluxion of time – Whether the claimant had been dismissed by the company – Whether her dismissal had been without just cause and excuse
Rozainah Awang v. MISC Berhad
(Teoh Chin Chong) [2020] 3 ILR 605

Type of – Whether the claimant’s claim for his monthly gratuity while in China and his right to use the OR system and his dependants’ entitlement to medical benefits had converted his contract status from FTC to permanent – Factors to consider – Evidence adduced – Effect of
Ong Shy Boon v. Sarawak Shell Berhad
(Ani Ak Solep) [2020] 3 ILR 467

DISMISSAL

Misconduct – Whether the claimant had advised Rafidah, from the Holiday Inn Glenmarie, to inform the management that if they could not settle the Collective Agreement, the union would picket – Factors to consider – Evidence adduced – Evaluation of – Effect of – Union’s actions – What it had shown – Contents of the union’s show cause letter to the claimant – Whether it had been satisfactory – Purpose of show cause letters – Whether the union had followed the rules of natural justice in dealing with the matter – Whether the claimant’s dismissal had been carried out with just cause and excuse
Muhammad Zailani Mat Zin v. National Union Of Hotel, Bar And Restaurant Workers, Peninsular Malaysia
(Augustine Anthony) [2020] 3 ILR 447

Misconduct – Whether the claimant had misappropriated the union’s funds – Factors to consider – Evidence adduced – Effect of – Whether proven by the union on a balance of probabilities – Union’s actions in the matter – What it had shown – Effect of – Whether the claimant’s dismissal had been carried out with just cause and excuse
Muhammad Zailani Mat Zin v. National Union Of Hotel, Bar And Restaurant Workers, Peninsular Malaysia
(Augustine Anthony) [2020] 3 ILR 447

Retrenchment – Redundancy – Claimant retrenched – Claimant offered a role pre-restructuring – Whether that role had existed post-restructuring – Company committing the error but subsequently correcting it – Effect of – Whether the claimant’s position had become redundant to the company’s requirements – Whether dismissal without just cause and excuse
Tang Kheng Siong v. Sarawak Shell Berhad
(Ani Ak Solep) [2020] 3 ILR 544

Retrenchment – Redundancy – Claimant retrenched – Whether his assumption of the role for the PoP project had been permanent in nature – Factors to consider – Evidence adduced – Effect of
Tang Kheng Siong v. Sarawak Shell Berhad
(Ani Ak Solep) [2020] 3 ILR 544

Retrenchment – Redundancy – Claimant retrenched – Whether it had been carried out bona fide – Factors to consider – Evidence adduced – Effect of – Whether the claimant had been victimised – Whether the claimant’s claim had been supported by the evidence – Effect of – Whether the claimant had been dismissed without just cause and excuse
Tang Kheng Siong v. Sarawak Shell Berhad
(Ani Ak Solep) [2020] 3 ILR 544

Retrenchment – Restructuring – Whether the company’s restructuring exercise had been carried out bona fide – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the selection process for successful job candidates carried out by the company had been justified – Effect of – Whether the company had needed to be in the red in order to restructure – Whether the claimant’s position had become redundant justifying his termination – Whether his termination from employment had been carried out with just cause and excuse
Tang Kheng Siong v. Sarawak Shell Berhad
(Ani Ak Solep) [2020] 3 ILR 544

EVIDENCE

Adverse inference – Whether there had been a suppression of evidence by the company by its failure to call Jayden Tan, Wee Li Ching, AM and Mohammad Hazim Muhammad Hatta – Factors to consider – Effect of – Whether COW1 and COW2’s evidence had been sufficient to prove its case against him – Their positions in the company
Ong Shy Boon v. Sarawak Shell Berhad
(Ani Ak Solep) [2020] 3 ILR 467

Documentary evidence – Whether the claimant had been a workman under the Industrial Relations Act 1967 – Factors to consider – Evidence adduced – Effect of – Perusal and evaluation of the union’s Constitution – What it had shown – Claimant no longer an employee in the Hotel, Bar and Restaurant industry – Effect of – Whether he could hold a position in the union – Whether he had obtained the necessary exemptions under the Trade Unions Act 1959 – Effect of – Union’s actions towards him – What it had shown – Industrial Relations Act 1967, s. 2 and Trade Unions Act 1959, ss. 29 & 30
Muhammad Zailani Mat Zin v. National Union Of Hotel, Bar And Restaurant Workers, Peninsular Malaysia
(Augustine Anthony) [2020] 3 ILR 447

INDUSTRIAL COURT

Jurisdiction – Whether the IC had been seized with jurisdiction to hear this matter – Factors to consider – Evidence adduced – Effect of
Muhammad Zailani Mat Zin v. National Union Of Hotel, Bar And Restaurant Workers, Peninsular Malaysia
(Augustine Anthony) [2020] 3 ILR 447

Jurisdiction – Whether the Industrial Court had been seised with jurisdiction to hear the matter – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, ss. 8(1A) and 18
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Paramalingam J Doraisamy) [2020] 3 ILR 498

Jurisdiction – Whether the Industrial Court has the jurisdiction to interpret the terms of the CA in non-compliance proceedings – Factors to consider – Statutory provisions – Evaluation of – Effect of – Industrial Relations Act 1967, s. 56(2A)
Miyan Udin & Anor v. Goodyear Malaysia Berhad
(Anna Ng Fui Choo) [2020] 3 ILR 520

Jurisdiction – Workmens’ dismissals heard by a different division of the Industrial Court and dismissed – Whether the Industrial Court’s determination of this matter now would lead to a duplicity of proceedings – Factors to consider – Evidence adduced – Effect of – What the union’s reliefs had been in this trade dispute – Effect of – Industrial Relations Act 1967, ss.4(1) and 5(1)(d)(ii)
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Paramalingam J Doraisamy) [2020] 3 ILR 498

Procedure – Action – Some complainants filing SDs seeking to withdraw this matter against the respondent – Implications of the SD – As at the date of the hearing the SDs not withdrawn – Effect of – Complainants subsequent actions of filing Form A and B in the Industrial Court – What it had shown – Whether the respondent’s actions of trying to secure a withdrawal of the matter, behind the complainants’ counsel’s back, whilst the substantive issue of non-compliance had still been pending in court, had been an unfair labour practice – Effect of
Miyan Udin & Anor v. Goodyear Malaysia Berhad
(Anna Ng Fui Choo) [2020] 3 ILR 520

Procedure – Action – Witness for the respondent in court as an observer whilst complainants’ witnesses testifying – Whether encouraged and the right thing to do
Miyan Udin & Anor v. Goodyear Malaysia Berhad
(Anna Ng Fui Choo) [2020] 3 ILR 520

LABOUR LAW

Jurisdiction – Labour Court – Claim for non-payment of salary by employee – Labour Court decided it had no jurisdiction as employee did not possess work permit – Whether employee fell within s. 2 of Employment Act 1955 – Whether premature for Labour Court to consider issue of work permit – Whether claim ought to have been heard on merits – Employment (Restriction) Act 1968, s. 5(1)(a)
Fice Fransina Nenobais v. Lee Hee Chooi
(Azizah Nawawi J) [2020] 3 ILR 440

NON-COMPLIANCE

Collective Agreement – Whether the foreign worker complainants had been workmen of the company and covered under the CA – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether art. 9(d)(ii) of the CA had been void and unenforceable – Perusal of that article and its implications – Whether the respondent’s financial incapacity had been a material factor to consider and been applicable in these proceedings – Industrial Relations Act 1967, ss. 17, 30(4) and 56(1) & Contracts Act 1950, s. 24
Miyan Udin & Anor v. Goodyear Malaysia Berhad
(Anna Ng Fui Choo) [2020] 3 ILR 520

Collective Agreement – Whether the foreign worker complainants had had the locus standi to bring this action against the respondent – Factors to consider – Evidence adduced – Effect of – Whether they had been covered under the scope of the CA – Effect of – Industrial Relations Act 1967, s. 56(1)
Miyan Udin & Anor v. Goodyear Malaysia Berhad
(Anna Ng Fui Choo) [2020] 3 ILR 520

TRADE DISPUTE

Collective Agreement – Whilst new CA being negotiated, company stopping check-off – Whether it had been within its prerogative to do so – Whether check-off had amounted to a trade dispute – Factors to consider – Effect of – Whether the company had been in contravention of the Industrial Relations Act 1967, ss. 4(1) and 5(1)(d)(ii)
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Paramalingam J Doraisamy) [2020] 3 ILR 498

Union-busting – Company dismissing the workmen who had been union members – Reasons for the same – Whether it had been a form of union-busting by the company – Factors to consider – Evidence adduced – Effect of – Whether victimisation proven by the company – Whether the union had successfully shown a direct causation between the action taken by the company against it and the fact that the workmen had been union members or officers – Effect of – Whether the company had been in contravention of the Industrial Relations Act 1967
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. Hicom Automotive Manufacturers (Malaysia) Sdn Bhd
(Paramalingam J Doraisamy) [2020] 3 ILR 498