LATEST CASES (ILR Issue 10 of 2018)

SUBJECT INDEX

CONTRACT OF EMPLOYMENT

Existence of – Whether there had existed a contract of employment between the parties – Factors to consider – Evidence adduced – Effect of – Whether the claimant had been an employee of the company – Whether he had been dismissed by the company – Company’s defence – Whether acceptable – Whether dismissal without just cause and excuse
Henry Eliathamby v. Tootpay Sdn Bhd
(Yong Soon Ching) [2018] 4 ILR 22

Terms and conditions – Resignation – Determination of who had been the claimant’s employer – Factors to consider – Evidence adduced – Effect of – Whether he could have two employers
Lim Wei Sern v. Galaxy TTT Group Sdn Bhd
(P Iruthayaraj D Pappusamy) [2018] 4 ILR 32

DISMISSAL

Breach of company rules and policies – Breach of confidentiality – Whether the claimants had been in breach of their duties of confidentiality by their actions of discussing the BPO investigation with each other – Factors to consider – Evidence adduced – Effect of – Whether proven by the company against them
Lee Lily & Anor v. Novartis Corporation (Malaysia) Sdn Bhd
(Bernard John Kanny) [2018] 4 ILR 170

Breach of company rules and policies – Negligence – Gross negligence – Whether the claimant had deleted the account of MH – Evidence adduced – Evaluation of – Effect of – 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)
Deewagar Baskaran v. Worleyparsons Business Services Sdn Bhd
(Yong Soon Ching) [2018] 4 ILR 139

Breach of company rules and policies – Negligence – Whether the claimants’ behaviour had fallen below the reasonable standard expected of them in their positions – Evidence adduced – Effect of – Whether successfully proven by the company against them
Lee Lily & Anor v. Novartis Corporation (Malaysia) Sdn Bhd
(Bernard John Kanny) [2018] 4 ILR 170

Breach of company rules and policies – Negligence – Whether the claimants had failed to keep their safeword tokens to themselves and under their care and custody, thus causing safety risks to the company – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether there had existed a company SOP on the same – Whether the company had proven the charge on a balance of probability – What its actions had shown – Claimants’ defence – Whether could be accepted – Whether the claimants’ dismissals had been carried out with just cause and excuse
Lee Lily & Anor v. Novartis Corporation (Malaysia) Sdn Bhd
(Bernard John Kanny) [2018] 4 ILR 170

Breach of company rules and policies – Negligence – Whether the claimants had failed to keep their username and password confidential at all times – Factors to consider – Evidence adduced – Effect of – Whether there had been any written procedures in place – Claimants’ explanations – Whether could be accepted – Whether the company had succeeded in proving this charge against them – Whether dismissals without just cause or excuse
Lee Lily & Anor v. Novartis Corporation (Malaysia) Sdn Bhd
(Bernard John Kanny) [2018] 4 ILR 170

Breach of company rules and policies – Whether the claimant had abused the company’s internet/e-mail service by accessing, receiving, downloading and distributing pornographic material to others – Evidence adduced – Evaluation of – Effect of – Whether the charge had been proven against him – Whether it had constituted serious misconduct justifying his dismissal – Whether dismissal without just cause and excuse
Shanmugam Maramuthu v. A. Hartrodt Ocean Services (M) Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2018] 4 ILR 106

Constructive dismissal – Change in status – Whether the new organisational chart introduced by the company had culminated in a change of status to the claimant’s position – Factors to consider – Whether proven by him – Evidence adduced – Evaluation of – Effect of – Company’s explanations – Whether acceptable – Whether the company’s actions had amounted to a fundamental breach going to the root of the contract of employment – Whether the claimant had been constructively dismissed – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
George Soh Thian Boon v. Hoepharma Holdings Sdn Bhd
(Sarojini Kandasamy) [2018] 4 ILR 80

Constructive dismissal – Salary – Claimant not paid his salaries since the commencement of his employment – Whether proven by him – Evidence adduced – Evaluation of – Effect of – Whether it had amounted to a fundamental breach going to the root of the contract of employment – Whether he had delayed in claiming constructive dismissal – Factors to consider – Effect of – Whether the claimant had been constructively dismissed – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Lim Wei Sern v. Galaxy TTT Group Sdn Bhd
(P Iruthayaraj D Pappusamy) [2018] 4 ILR 32

Insubordination – Whether the claimant had failed to make the necessary arrangements to meet the clients as directed – Evidence adduced – Evaluation of – Whether it had amounted to a misconduct – Factors to consider – Whether his explanations had been acceptable – Whether it had warranted his dismissal
Shanmugam Maramuthu v. A. Hartrodt Ocean Services (M) Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2018] 4 ILR 106

Insubordination – Whether the claimant had failed to sign the attendance book as directed by company procedures – Evidence adduced – Evaluation of – Whether it had amounted to a misconduct – Whether it had warranted his dismissal
Shanmugam Maramuthu v. A. Hartrodt Ocean Services (M) Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2018] 4 ILR 106

Insubordination – Whether the claimant had refused to go on transfer – Factors to consider – Effect of – Reasons for the same – Whether it had excused his actions – Effect of – Whether the transfer order would have entailed a change in relation to his terms of employment to his detriment – Evidence adduced – Evaluation of – Whether charge proven by the company – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Azman Mustaffa v. Petronas Chemicals Group Berhad
(Gulam Muhiaddeen Abdul Aziz) [2018] 4 ILR 5

Misconduct – Claimant caught rummaging through the private materials and property of COW1, in COW1’s room and in his absence – Whether misconduct proven by the company – Claimant’s explanations – Whether could be believed and accepted – Factors to consider – Her position in the company – Effect of
Catherine Law Cheng Gaik v. Saiwai Land Sdn Bhd
(Augustine Anthony) [2018] 4 ILR 123

Misconduct – Whether the claimant’s action of filing a winding-up petition against the company had constituted serious misconduct which had justified his dismissal – Factors to consider – Impact of the winding-up petition on the company – Whether the company had been justified in dismissing him – Claimant’s duty of fidelity towards the company – Whether by his actions, he had been in breach of it – Factors to consider – Effect of – Whether dismissal without just cause and excuse
Afifi Haji Hassan v. Norman Disney & Young Sdn Bhd
(Rajendran Nayagam) [2018] 4 ILR 16

Misconduct – Whether the claimant had imported goods using illegal procedures – Evidence adduced – Evaluation of – Whether the charge had been proven by the company against him – Effect of – Whether his actions had constituted serious misconduct – Whether he had been in breach of his fiduciary duties to the company – Whether his actions had warranted his dismissal – Factors to consider – Whether dismissal without just cause and excuse
Shanmugam Maramuthu v. A. Hartrodt Ocean Services (M) Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2018] 4 ILR 106

Misconduct – Whether the claimant had refused to go on transfer – Evidence adduced – Effect of – Whether the company had a right to transfer him – Perusal of his terms and conditions of service – Whether the claimant had been prepared to go on transfer – Whether the transfer order had varied his terms and conditions of service – Whether the change in the terms and conditions of his service had been to his detriment – Factors to consider – Effect of – Company’s actions towards him – What it should have done – Whether the company had been justified in dismissing him – Whether dismissal without just cause and excuse
Azman Mustaffa v. Petronas Chemicals Group Berhad
(Gulam Muhiaddeen Abdul Aziz) [2018] 4 ILR 5

Performance – Poor performance – Whether the claimant had performed poorly – Factors to consider – Evidence adduced – Effect of – Whether it had justified her non-confirmation in employment – Company’s actions towards her – Whether reasonable – What the company should have done – Whether dismissal without just cause and excuse
Catherine Law Cheng Gaik v. Saiwai Land Sdn Bhd
(Augustine Anthony) [2018] 4 ILR 123

Probationer – Claimant not confirmed at the expiry of her probationary period – Whether the company had acted reasonably towards her – Factors to consider – Evidence adduced – Effect of – What it should have done – Whether its actions against her had been an unfair labour practise – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Catherine Law Cheng Gaik v. Saiwai Land Sdn Bhd
(Augustine Anthony) [2018] 4 ILR 123

Probationer – Whether the claimant had been a probationer at all material times – Factors to consider – Evidence adduced – Effect of – Whether the company’s actions of granting her annual leave had made her a confirmed employee – Effect of
Catherine Law Cheng Gaik v. Saiwai Land Sdn Bhd
(Augustine Anthony) [2018] 4 ILR 123

DOMESTIC INQUIRY

Procedural impropriety – Whether the DI conducted had been in conformity with the rules of natural justice – Factors to consider – Effect of
Lee Lily & Anor v. Novartis Corporation (Malaysia) Sdn Bhd
(Bernard John Kanny) [2018] 4 ILR 170

EVIDENCE

Admissibility – Whether the VCD containing the e-mail correspondences and pornographic materials which had been sent and received by the claimant from his company e-mail ID had been admissible in evidence – Factors to consider – Effect of – Industrial Relations Act 1967, s. 30(5)
Shanmugam Maramuthu v. A. Hartrodt Ocean Services (M) Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2018] 4 ILR 106

Adverse inference – Company failing to call Ivy Can – Whether she had been a material witness – Effect of – Whether the company had made a genuine attempt to secure her attendance in court – Evidence adduced – Whether an adverse inference ought to be drawn against the company for its failure to call her to testify on its behalf – Evidence Act 1950, s. 114(g)
Lim Wei Sern v. Galaxy TTT Group Sdn Bhd
(P Iruthayaraj D Pappusamy) [2018] 4 ILR 32

Adverse inference – Company failing to call witnesses from its management or a forensic investigator to prove its case – Whether an adverse inference ought to be drawn against it – Whether there had been gaps in its evidence as a result of it
Deewagar Baskaran v. Worleyparsons Business Services Sdn Bhd
(Yong Soon Ching) [2018] 4 ILR 139

Burden of proof – Whether discharged by the company in proving that the claimant’s dismissal had been carried out with just cause and excuse – Evidence adduced – Effect of
Henry Eliathamby v. Tootpay Sdn Bhd
(Yong Soon Ching) [2018] 4 ILR 22

Documentary evidence – Findings of DI – Whether perverse – Factors to consider – Claimant not challenging the DI proceedings – Effect of
George Soh Thian Boon v. Hoepharma Holdings Sdn Bhd
(Sarojini Kandasamy) [2018] 4 ILR 80

Documentary evidence – Whether the claimant had been an employee/ workman of the company – Factors to consider – Evidence adduced – Effect of – Degree of control that the company had exercised over him – Effect of – Whether his role with the company had been a temporary one, based on its needs – Whether he had been hired by the company under a contract for service or a contract of service – Evaluation of the evidence – Whether an employee/workman can also be appointed as a Director of a company
Henry Eliathamby v. Tootpay Sdn Bhd
(Yong Soon Ching) [2018] 4 ILR 22

INDUSTRIAL COURT

Jurisdiction – Threshold jurisdiction – Whether possessed by the Industrial Court – Factors to consider – Effect of – Whether the claimant by filing the winding-up petition against the company had ceased to be a workman under s. 2 of the Industrial Relations Act 1967 – Effect of – Industrial Relations Act 1967, s. 2
Afifi Haji Hassan v. Norman Disney & Young Sdn Bhd
(Rajendran Nayagam) [2018] 4 ILR 16

Jurisdiction – Whether the Industrial Court had the jurisdiction to adjudicate on this matter – Factors to consider – Effect of – Whether there had existed a trade dispute between the parties – Industrial Relations Act 1967, ss. 18 & 56(2)
National Union Of Transport Equipment And Allied Industries Workers v. Union Sangyo (M) Sdn Bhd
(Eddie Yeo Soon Chye) [2018] 4 ILR 43

Procedure – Action – Striking out – Companies applying to strike out the claimants’ claim against them – Claimants holding multiple jobs and terminated by multiple employers – Whether this is a suitable case for striking out – Factors to consider – Evaluation of case law – Effect of – Whether the companies’ application ought to be allowed – Industrial Relations Act 1967, ss. 29(a), (fa) and/or (g)
Feroz Mohd Yunus & Ors v. Metroplex Berhad & Ors
(P Iruthayaraj D Pappusamy) [2018] 4 ILR 1

Remedies – Compensation – Compensation in lieu of reinstatement – Whether ought to be awarded to the claimant – Factors to consider – Effect of – Claimant working for less than a year – What ought to be awarded to him
Lim Wei Sern v. Galaxy TTT Group Sdn Bhd
(P Iruthayaraj D Pappusamy) [2018] 4 ILR 32

Remedies – Compensation – Whether monetary compensation could be awarded to the claimant when reinstatement had not been available to him – Evaluation of the case law – Effect of
Afifi Haji Hassan v. Norman Disney & Young Sdn Bhd
(Rajendran Nayagam) [2018] 4 ILR 16

Remedies – Reinstatement – Whether the primary remedy of reinstatement had been available to the claimant when the company had been in liquidation – Effect of
Afifi Haji Hassan v. Norman Disney & Young Sdn Bhd
(Rajendran Nayagam) [2018] 4 ILR 16

NON-COMPLIANCE

Collective Agreement – Article on the payment of retirement benefits – Company failing to pay UW2 retirement benefits when she left the company – Whether UW2 had been entitled to the retirement benefits – Factors to consider – Effect of – Whether there had been non-compliance by the company of the article in the CA
National Union Of Transport Equipment And Allied Industries Workers v. Union Sangyo (M) Sdn Bhd
(Eddie Yeo Soon Chye) [2018] 4 ILR 43

INDEKS PERKARA

KETERANGAN

Keterangan dokumentari – Sama ada YM merupakan seorang pekerja syarikat responden – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada terdapat hubungan majikan-pekerja antara syarikat responden dengan YM – Faktor-faktor yang harus diambil kira – Kesannya – Sama ada YM telah dibuang kerja oleh syarikat responden – Sama ada pembuangan kerjanya telah dilakukan secara adil dan bersebab – Akta Perhubungan Perusahaan 1967, s. 2
Azlinda Adeli lwn. Barkath Stores/ Barkath Management Services
(Mariani Ghani) [2018] 4 ILR 151

KONTRAK PEKERJAAN

Kewujudan – Tiada kontrak perkhidmatan antara YM dengan syarikat responden – Sama ada wujud hubungan majikan-pekerja antara syarikat responden dengan YM – Faktor-faktor yang harus diambil kira – Kesannya – Sama ada kontrak pekerjaan boleh wujud secara tersirat – Akta Perhubungan Perusahaan 1967, s. 2
Azlinda Adeli lwn. Barkath Stores/ Barkath Management Services
(Mariani Ghani) [2018] 4 ILR 151

MAHKAMAH PERUSAHAAN

Remedi – Pampasan – Exemplary damages – Sama ada sesuai diawardkan – Keterangan yang dikemukakan – Kelakuan dan tindakan syarikat responden terhadap YM – Sama ada perbuatan syarikat responden terhadap YM perlu dijadikan contoh kepada syarikat lain supaya lebih bertanggungjawab dalam tindakannya kepada pekerjanya
Azlinda Adeli lwn. Barkath Stores/ Barkath Management Services
(Mariani Ghani) [2018] 4 ILR 151

PEMBUANGAN KERJA

Pembuangan kerja secara konstruktif – Perpindahan – Tawaran untuk – Sama ada tawaran perpindahan jawatan YM kepada jawatan baru merupakan satu penurunan jawatan – Keterangan yang dikemukakan – Kesannya – Sama ada berjaya dibuktikan oleh YM terhadap syarikat responden – Sama ada beliau telah diberhentikan kerja secara konstruktif
Azlinda Adeli lwn. Barkath Stores/ Barkath Management Services
(Mariani Ghani) [2018] 4 ILR 151

Pembuangan kerja secara konstruktif – Sama ada syarikat telah gagal untuk membayar elaun penerbangan YM dan telah menahan gajinya – Keterangan yang dikemukakan – Kesannya – Sama ada dakwaan ini berjaya dibuktikan oleh beliau – Faktor-faktor yang harus diambil kira – Kesannya – Sama ada kelakuan YM telah menyebabkan syarikat hilang perasaan saling mempercayai, hormat dan keyakinan terhadapnya – Kesannya – Sama ada YM telah dibuang kerja secara konstruktif
Paulus Horsono Pangestu lwn. Upayapadu Management Sdn Bhd
(Jamil Aripin) [2018] 4 ILR 55

Pembuangan kerja secara konstruktif – Sama ada syarikat telah menamatkan perkhidmatan YM secara konstruktif – Sama ada YM telah mengetepikan haknya untuk menuntut pembuangan kerja secara konstruktif – Faktor-faktor yang harus diambil kira – Kesannya
Paulus Horsono Pangestu lwn. Upayapadu Management Sdn Bhd
(Jamil Aripin) [2018] 4 ILR 55

Pembuangan kerja secara konstruktif – Sama ada syarikat telah menghadapkan dakwaan palsu terhadap beliau – Keterangan yang dikemukakan – Penilaian keterangan – Kesannya – Sama ada YM telah dibuang kerja secara konstruktif
Paulus Horsono Pangestu lwn. Upayapadu Management Sdn Bhd
(Jamil Aripin) [2018] 4 ILR 55

Pembuangan kerja secara konstruktif – YM diarahkan untuk mengambil cuti tanpa gaji – Sebabnya – Sama ada arahan syarikat tersebut menunjukkan bahawa syarikat tidak lagi mempunyai niat untuk terikat dengan kontrak pekerjaan beliau – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada YM telah dibuang kerja secara konstruktif
Paulus Horsono Pangestu lwn. Upayapadu Management Sdn Bhd
(Jamil Aripin) [2018] 4 ILR 55