LATEST CASES (ILR Issue 10 of 2019)

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review – Certiorari – Application to quash award of Industrial Court – Dismissal of high-ranking officer on grounds of poor performance – Proper test to be applied – Whether Industrial Court erred in applying general test to senior management employee – Whether Industrial Court failed to take relevant considerations – Whether decision perverse – Whether quashing of award justified
HLG Capital Bhd v. Andrew Chuah Khim Peik
(Azizah Nawawi J) [2019] 4 ILR 1

CONTRACT OF EMPLOYMENT

Type of – Claimant entering into four contracts with three legal entities, with a clause that there would be continuous service within the Group – Whether it had been considered one continuous contract – Whether the corporate veil of the legal entities could be lifted – Factors to consider – Effect of
Sredharan Ramakrishna Nair v. Bumi Armada Berhad/Bumi Armada Engineering Sdn Bhd
(Bernard John Kanny) [2019] 4 ILR 113

Type of – Genuine fixed-term contract – Whether the claimant had entered into genuine fixed-term contracts – Factors to consider – Evidence adduced – Effect of
Sredharan Ramakrishna Nair v. Bumi Armada Berhad/Bumi Armada Engineering Sdn Bhd
(Bernard John Kanny) [2019] 4 ILR 113

Type of – Fixed-term contract – Whether the claimant had had a legitimate expectation to continue working with the company beyond the expiry of his contract – Factors to consider – Evidence adduced – Effect of – Claimant's actions – What it had shown – Whether his contracts of employment had been genuine fixed-term contracts – Whether there had been a dismissal – Whether dismissal without just cause and excuse
Daniel Waelchli v. JEKS Engineering Sdn Bhd
(Augustine Anthony) [2019] 4 ILR 194

Type of – Fixed-term contract – Whether the claimant's contracts of employment had been genuine fixed-term contracts – Factors to consider – Evidence adduced – Whether he had been dismissed – Whether dismissal without just cause and excuse
Daniel Waelchli v. JEKS Engineering Sdn Bhd
(Augustine Anthony) [2019] 4 ILR 194

DISMISSAL

Breach of company rules and policies – Theft – Whether the claimant had removed and sold a canopy belonging to the company to third parties without authorisation – Factors to consider – Evidence adduced – Effect of – Claimant's defence – Whether acceptable – Whether the misconduct had been proven against the claimant – What the company should have done – Whether dismissal without just cause and excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mahadi Mohd Nor v. CAE Kuala Lumpur Sdn Bhd
(Yong Soon Ching) [2019] 4 ILR 11

Breach of company rules and policies – Theft – Whether the claimant had removed and sold a canopy belonging to the company to third parties without authorisation – Whether proven by the company – Whether the company's actions of dismissing him had been too harsh under the circumstances – Factors to consider – What it should have done instead
Mahadi Mohd Nor v. CAE Kuala Lumpur Sdn Bhd
(Yong Soon Ching) [2019] 4 ILR 11

Constructive dismissal – Change in job function – Claimant's job function changed from Tech Arch Integration Lead to Portfolio and Demand Specialist – Whether the change had resulted in her job scope being drastically changed – Evidence adduced – Evaluation of – Effect of – Whether the company had had the right to decide on her assignment – Perusal of her contract of employment – Effect of – Whether the company's actions had amounted to a fundamental breach which had gone to the root of her contract of employment – Factors to consider – Whether she had been constructively dismissed – Whether dismissal without just cause and excuse
Foo Lan Fang v. Huntsman P & A Asia Sdn Bhd
(Yong Soon Ching) [2019] 4 ILR 25

Constructive dismissal – Salary – Claimant's salary deducted in instalments for unpaid leave – Whether it had amounted to a fundamental breach which had gone to the root of her contract of employment – Factors to consider – Evidence adduced – Effect of – Company's defence – Whether could be accepted – Whether it had justified the claimant walking out of her employment and claiming constructive dismissal
Foo Lan Fang v. Huntsman P & A Asia Sdn Bhd
(Yong Soon Ching) [2019] 4 ILR 25

Insolence – Whether the claimant's postings in the WhatsApp Group had been defamatory, provocative and insolent – Factors to consider – Evidence adduced – Effect of – Claimant's conduct – What it had shown – Whether the misconduct had been successfully proven against him – Whether it had justified his dismissal – Whether dismissal without just cause and excuse
Ahmad Puad Abu Bakar v. Perbadanan Nasional Berhad (PNS)
(Franklin Goonting) [2019] 4 ILR 44

Retrenchment – Redundancy – LIFO principles – Whether followed by the company – Evidence adduced – Evaluation of – Effect of – Whether the claimant's retrenchment had been rendered prima facie invalid – Whether dismissal without just cause and excuse
Sredharan Ramakrishna Nair v. Bumi Armada Berhad/Bumi Armada Engineering Sdn Bhd
(Bernard John Kanny) [2019] 4 ILR 113

Retrenchment – Redundancy – Whether the claimant's position had become redundant – Job functions performed by the claimant – Whether his job functions had continued to exist after his dismissal – Evidence adduced – Effect of
Sredharan Ramakrishna Nair v. Bumi Armada Berhad/Bumi Armada Engineering Sdn Bhd
(Bernard John Kanny) [2019] 4 ILR 113

Retrenchment – Redundancy – Whether the claimant's retrenchment had been made in compliance with accepted industrial relations standards – 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
Sredharan Ramakrishna Nair v. Bumi Armada Berhad/Bumi Armada Engineering Sdn Bhd
(Bernard John Kanny) [2019] 4 ILR 113

Retrenchment – Reorganisation – Whether the reorganisation carried out by the company had been justified – Factors to consider – Evidence adduced – Evaluation of the evidence – Effect of – Actions taken by the company – What it had shown
Sredharan Ramakrishna Nair v. Bumi Armada Berhad/Bumi Armada Engineering Sdn Bhd
(Bernard John Kanny) [2019] 4 ILR 113

DOMESTIC INQUIRY

Absence of – Company failing to hold a DI before dismissing the claimant – Whether one should have been held – Factors to consider – Effect of – Whether the company's failure to hold one had been fatal to its case
Mahadi Mohd Nor v. CAE Kuala Lumpur Sdn Bhd
(Yong Soon Ching) [2019] 4 ILR 11

EVIDENCE

Documentary evidence – Notes of the DI – Whether accurate – Factors to consider – Effect of – Whether a prima facie case had been established against the claimant
Ahmad Puad Abu Bakar v. Perbadanan Nasional Berhad (PNS)
(Franklin Goonting) [2019] 4 ILR 44

Documentary evidence – Show cause letter issued by the company accusing the claimant of theft – Charges of theft subsequently abandoned after consideration of the evidence – Whether the company ought to have amended the charges against him – What the company's actions had shown – Claimant's conduct in comparison – Effect of – Whether the company could issue a show cause letter containing a serious offence and then do nothing about it
Mahadi Mohd Nor v. CAE Kuala Lumpur Sdn Bhd
(Yong Soon Ching) [2019] 4 ILR 11

INDUSTRIAL COURT

Jurisdiction – Whether the claimant's s. 20 representations had been premature – Whether he had still been in the company's employ on that date – Factors to consider – Evidence adduced – Effect of – Whether the Industrial Court had jurisdiction to hear the matter – Industrial Relations Act 1967, ss. 20 and 20(1A)
Daniel Waelchli v. JEKS Engineering Sdn Bhd
(Augustine Anthony) [2019] 4 ILR 194

LABOUR LAW

Dismissal – Dismissal of high-ranking officer – Proper test to be applied – Whether company required to prove sufficient written notice to employee about his poor performance before dismissing him – Whether employee ought to be accorded sufficient opportunity to improve – Whether employee as senior management officer should know expectations of his employer and performance standards befitting his post – Whether Industrial Court erred in applying general test to senior management employee – Whether sufficient for company to establish upper management of company dissatisfied with employee – Whether company's dissatisfaction with employee bona fide
HLG Capital Bhd v. Andrew Chuah Khim Peik
(Azizah Nawawi J) [2019] 4 ILR 1

Industrial Court – Award – Judicial review – Certiorari – Application to quash award of Industrial Court – Dismissal of high-ranking officer on grounds of poor performance – Proper test to be applied – Whether Industrial Court erred in applying general test to senior management employee – Whether Industrial Court failed to take relevant considerations – Whether decision perverse – Whether quashing of award justified
HLG Capital Bhd v. Andrew Chuah Khim Peik
(Azizah Nawawi J) [2019] 4 ILR 1

TRADE DISPUTE

Collective Agreement – Terms and conditions of service – Articles in relation to allowances and monetary benefits – Whether the union's proposals ought to be adopted – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, s. 13(3)
Persatuan Pegawai-pegawai Bank Semenanjung Malaysia v. AmBank (M) Berhad
(Jalaldin Hussain) [2019] 4 ILR 58

Collective Agreement – Terms and conditions of service – Articles on wage dispute – Whether the union's proposals ought to be adopted – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, s. 30(4)
Persatuan Pegawai-pegawai Bank Semenanjung Malaysia v. AmBank (M) Berhad
(Jalaldin Hussain) [2019] 4 ILR 58

Collective Agreement – Terms and conditions of service – Disputed articles in relation to the new CA – Whether the union's or the company's proposals ought to be adopted – Whether proposals sufficiently supported by the evidence – Factors to consider – Evidence adduced – Effect of – Policy objectives of the Ministry of Human Resources in accordance with the Guidelines on Wage Reform System, issued by the National Labour Advisory Council on 1 August 1996 – Industrial Relations Act 1967, ss. 2 & 30(7)
Kesatuan Sekerja Pembuatan Barangan Galian Bukan Logam v. Malaya Glass Products Sdn Bhd
(Sumathi Murugiah) [2019] 4 ILR 152

Collective Agreement – Terms and conditions of service – First CA between the parties – Whether the terms of the MCBA CA, which had covered four employees to the proposed CA, should be adopted for the present CA – Factors to consider – Evidence adduced – Evaluation of – Effect of
Persatuan Pegawai-pegawai Bank Semenanjung Malaysia v. AmBank (M) Berhad
(Jalaldin Hussain) [2019] 4 ILR 58

Collective Agreement – Terms and conditions of service – Formal articles in the CA – Whether the union's proposals ought to be adopted – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, ss. 6, 13(3), 14(3) & 20
Persatuan Pegawai-pegawai Bank Semenanjung Malaysia v. AmBank (M) Berhad
(Jalaldin Hussain) [2019] 4 ILR 58