| BULLETIN 11/2015 | |
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LATEST CASES (ILR Issue 10 of 2015) SUBJECT INDEX ADMINISTRATIVE LAW Certiorari - Application for - EPF Board dismissed applicant's application to withdraw funds - Application to quash decision of EPF Board - Applicant claimed to be physically incapacitated from being further employed - Medical examination by three medical practitioners appointed by EPF Board - Application for withdrawal - Findings that applicant physically or mentally fit to engage in employment rejected - Failure to notify applicant regarding rejection of application - Whether EPF Board acted ultra vires its powers in requiring applicant be examined by three medical practitioners - Whether there was procedural unfairness on account of EPF Board's failure to notify applicant in writing that his application was rejected - Whether EPF Board acted contrary to mandatory requirements imposed by EPF Rules Judicial review - Certiorari - Application for - Applicant terminated from pursuing nursing course due to allegation of misconduct - Challenging decision of Disciplinary Committee and Appeal Committee - Whether there was any breach of natural justice and procedural unfairness - Composition of Disciplinary Committee and Appeal Committee - Whether there was any danger of biasness - Whether applicant came within definition of `public servant' - Whether could claim protection under s. 135(2) Federal Constitution Judicial review - Certiorari - High Court allowed order of certiorari to quash award by Industrial Court - Appeal against - Whether Industrial Court acted within scope of its jurisdiction - Whether Industrial Court bound by a Sessions Court decision in acquitting respondent from any corrupt offences - Whether proceedings before Sessions Court relevant to proceedings before Industrial Court - Whether High Court erred and departed from established principles of law - Whether approach taken by Industrial Court consistent with exercise of its functions - Industrial Relations Act 1967, s. 30(5) CONTRACT OF EMPLOYMENT Terms and conditions - Notice of termination - No reasons given for the termination of the claimant's services - Respondent company intimating that new contract would supersede existing contract - Effect of - Whether the respondent company had acted bona fide - Whether dismissal without just cause and excuse DISMISSAL Absenteeism - Claimant allegedly being absent without leave for prolonged periods of time - Whether he had followed the company's procedures in notifying his superiors - Evidence adduced - Effect of - Reasons for the same - The company's conduct towards him - Whether it had been reasonable - Whether the charges had been proven by the company - Whether dismissal without just cause and excuse Absenteeism - Whether the claimant had been absent without leave - Evidence adduced - Evaluation of - Whether proven by the company - Claimant's explanations - Whether acceptable - Whether the company had been justified in dismissing him - Factors to consider - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Negligence - Claimant charged with not following the company's SOP on stock take - Whether he had knowledge of the SOP - SOP only shown to him after the event - What that meant - Whether it had justified the company dismissing him - Whether the charge had been proven by the company - Whether dismissal without just cause and excuse Breach of company rules and policies - Negligence - Claimant charged with not following the company's SOP on stock take - Whether proven by the company - Evidence adduced - Effect of - Claimant's explanations - Whether could be accepted - DI panel finding the claimant not guilty - Company dismissing him nevertheless - Whether his dismissal had been justified - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Negligence - Whether the claimant had failed to adhere with the brand change procedure of the company - Factors to consider - Evidence adduced - Effect of - Whether charge proven by the company - Whether it had been a serious misconduct - Position and length of service of the claimant with the company - Whether his dismissal had been justified - Whether dismissal without just cause and excuse Breach of company rules and policies - Negligence - Whether the claimant had been negligent in carrying out his duties - Evaluation of the evidence adduced - Claimant admitting to being negligent - Effect of - Whether the claimant had been aware of the correct procedure to follow - Claimant's length of service with the company - Claimant given awards during his employment with the company - Whether it had immunised him from dismissal - Whether his dismissal had been justified - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Insubordination - Claimant allegedly threatening COW1's brother - Whether proven by the company - Evidence adduced - Effect of - Whether the company's case had been based solely on conjecture and surmise - Factors to consider - Effect of - Whether the company had been justified in dismissing the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Sexual harassment - Claimant accused of sexually harassing his subordinates - Whether proven by the bank - Evidence adduced - Evaluation of - Effect of - Whether it had been sufficiently serious to warrant his dismissal - Position of the claimant over the complainants - Whether the bank had acted reasonably in dismissing him - Factors to consider - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Sexual harassment - Whether the claimant had sexually harassed his subordinates - Claimant's defence - Whether could be accepted - Whether supported by any evidence - Effect of - Whether his actions had justified the bank dismissing him - Whether his actions had been a breach of his fiduciary duties to the bank - Whether the bank had been justified in dismissing him Performance - Medical Boarding Out - Claimant medically boarded out due to his medical condition - Whether proven by the company - Whether the company had relied on a valid medical report to dismiss him - Evidence adduced - Effect of - What the company should have done - Whether the claimant's dismissal had been without just cause and excuse Performance - Medical Boarding Out - Claimant medically boarded out due to his medical condition - Whether the claimant had consented to it - Evidence adduced - Effect of - Claimant's evidence and the company's evidence directly in opposition to one another - Whose evidence had been more probable - Factors to consider Performance - Unsatisfactory performance - Whether the claimant had been warned of the same - Whether the claimant had been given sufficient opportunity to improve - Evidence adduced - Effect of - Whether the respondent company's decision to terminate him had been bona fide - Factors to consider - Whether dismissal without just cause and excuse Probationer - Probationer claimant - Whether he had been warned of his performance whilst under probation - Whether he had been given sufficient time and opportunity to improve - Evidence adduced - Effect of - What the respondent company should have done DOMESTIC INQUIRY Charge - Whether it had been defective - Factors to consider - Effect of Charges - Whether void - Whether defective for want of material particulars - Factors to consider - Effect of Procedural impropriety - Whether the DI had been properly conducted and valid - Factors to consider - Effect of EVIDENCE Adverse inference - Company failing to call Mr. Lu and Mr. Saravanan to give evidence - Whether they had been important and material witnesses - Factors to consider - Whether an adverse inference ought to be drawn against the company - Effect of Adverse inference - Company failing to call Dr. Anna Letchumi - Whether she had been a material witness - Whether the company had made any genuine effort to secure her attendance at trial - Whether an adverse inference ought to drawn against the company Corroboration - Whether the complainants' evidence had been corroborated - Evidence adduced - Evaluation of - Whether the charges had been made out against the claimant Documentary evidence - Findings of the DI - Whether the rules of natural justice had been complied with - Factors to consider - Effect of - Whether the DI had been validly conducted - Whether the DI notes had been accurate Documentary evidence - Findings of the DI panel - Whether perverse - Factors to consider - Effect of - Whether the findings had been valid Documentary evidence - Findings of the Medical Board - Whether it had been flawed - Factors to consider - Duties of the Medical Board - Whether its findings had been void ab initio Documentary evidence - Two contradictory medical reports existing - Company objecting to the one less favourable to it - Whether its objections should be allowed - Factors to consider - Effect of - Company failing to clarify why there had been two contradictory reports - What it should have done INDUSTRIAL COURT Jurisdiction - Whether the Industrial Court had the jurisdiction to adjudicate the matter - Factors to consider Remedies - Reinstatement - Refusal of - Whether the claimant had refused the remedy of reinstatement - Factors to consider LABOUR LAW Industrial Court - Dispute over wrongful dismissal - Whether Industrial Court failed to take into account relevant matters - Whether Industrial Court acted within scope of its jurisdiction - Whether Industrial Court bound by Sessions Court decision in acquitting respondent from any corrupt offences - Whether proceedings before Sessions Court irrelevant to the proceedings before the Industrial Court - Whether High Court had erred and departed from established principles of law - Whether approach taken by Industrial Court consistent with exercise of its functions - Industrial Relations Act 1967, s. 30(5) NON-COMPLIANCE Collective Agreement - 11th Collective Agreement - Article on annual increment - Whether the respondent company had complied with it - Factors to consider - Evidence adduced - Effect of - Manner of computation by the respondent company - Whether there had been non-compliance by the company - Minimum Wages Order 2012 Collective Agreement - Article on service charge - Whether it had been complied with by the respondent - Perusal of the article - Factors to consider - Effect of - Whether it had been part of the basic wages of the workmen - Whether there had been non-compliance by the respondent company of the said collective agreement PROVIDENT FUND Withdrawal of fund - Application for - Applicant claimed to be physically incapacitated from being further employed - Medical examination by three medical practitioners appointed by Employees Provident Fund Board (EPF Board) - Findings that applicant physically or mentally fit to engage in employment - Application for withdrawal rejected - Failure to notify applicant regarding rejection of application - Whether EPF Board acted ultra vires its powers in requiring applicant be examined by three medical practitioners - Whether EPF Board acted contrary to mandatory requirements imposed by EPF Rules INDEKS PERKARA KONTRAK PERKHIDMATAN Terma-terma - Perletakan jawatan - YM meletak jawatan dengan SLSB - Sama ada SLSB masih merupakan majikan kepada YM - Faktor-faktor yang harus diambil kira - Tindakan SLSB selepas YM meletak jawatan - Kesannya Terma-terma - Perletakan jawatan - YM menandatangani kontrak pekerjaan dengan Fineplus - Sama ada Fineplus merupakan majikan kepada YM - Faktor-faktor yang harus diambil kira - Kesannya MAHKAMAH PERUSAHAAN Bidang kuasa - Sama ada mahkamah perusahaan mempunyai bidang kuasa untuk mendengar tuntutan YM berkenaan kontrak pekerjaannya dengan Fineplus - Faktor-faktor yang harus diambil kira - Kesannya - Dalam keadaan mana Mahkamah Perusahaan mempunyai bidang kuasa untuk mendengar pertikaian PEMBUANGAN KERJA Ketidakpatuhan terhadap peraturan dan polisi syarikat - Kecurian - Sama ada berjaya dibuktikan oleh syarikat - Sama ada pihak syarikat berpakat untuk menyingkirkan YM daripada kerjanya - Sama ada syarikat telah menamatkan perkhidmatan YM - Faktor-faktor yang harus diambil kira - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab Ketidakpatuhan terhadap peraturan dan polisi syarikat - Kecurian - YM dituduh mencuri daripada syarikat - Sama ada berjaya dibuktikan oleh syarikat atas tahap imbangan kebarangkalian - Keterangan yang dikemukakan - Kesannya - Penjelasan YM - Sama ada dapat diterima - Tindakan syarikat - Sama ada munasabah - Rekod perkhidmatan YM dengan syarikat - Sama ada pembuangan kerja YM dilakukan secara adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) Penghematan - Lebihan tenaga pekerja - Sama ada berjaya dibuktikan oleh syarikat responden - Keterangan yang dikemukakan - Kesannya - Sama ada pemberhentian YM berdasarkan alasan ini adalah munasabah - Faktor-faktor yang harus diambil kira - Sama ada syarikat responden telah bertindak secara mala fide terhadap YM - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab Penghematan - YM telah diberhentikan kerja atas alasan lebihan tenaga pekerja - Sama ada peraturan Code of Conduct for Industrial Harmony telah dipatuhi oleh syarikat responden - Keterangan yang dikemukakan - Kesannya - Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab |
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