| BULLETIN 12/2015 | |
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LATEST CASES (ILR Issue 11 of 2015) SUBJECT INDEX ADMINISTRATIVE LAW Judicial review - Certiorari - Industrial Court - Industrial Court disallowing summary dismissal of Regional General Manager on grounds of insubordination - Whether Industrial Court committed error warranting decision being quashed by certiorari - Whether decision of Industrial Court unreasonable in “Wednesbury” sense - Whether certiorari should be granted CIVIL PROCEDURE Judicial review - Principles - Whether judicial review not confined to process but also includes review of substance - Whether judicial review court may enquire into merits and substance of decisions CONTRACT OF EMPLOYMENT Terms and conditions - Notice of termination - Whether it had been a retrospective removal of the claimant from office - Whether it ought to be held to be wholly invalid - Factors to consider - Intention of the parties - Effect of Type of - Fixed-term contract - Whether the claimant had been put on a fixed term contract - Whether the fixed-term contract had come to an end - Factors to consider - Whether the claimant had been dismissed - Whether dismissal without just cause and excuse Validity - Claimant retired from the company pursuant to its retirement policy - No challenge to it by the claimant at that point in time - Claimant’s actions thereafter - Whether he could now raise a challenge to it - Whether it had been frivolous and an abuse of process - Factors to consider - Effect of - What the claimant should have done DISMISSAL Absenteeism - Whether the claimant had gone on leave without approval - Whether the company had a set of procedures in place for leave applications - Evidence adduced - Effect of - Whether the claimant had chosen to ignore it - Claimant’s explanations - Whether acceptable - What the claimant should have done - Whether he had been absent from work without leave - Whether charge proven by the company Breach of company rules and policies - Carelessness - Claimant failing to hand over the company’s mobile phone PIN despite repeated requests - His reasons for the same - Whether it had been acceptable - Whether it had constituted a misconduct - Whether the charge had been proven by the company - Evidence adduced - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Conflict of interest with the company’s business - Claimant allegedly carrying on transactions in conflict of interest with the company - Whether proven by the company - Evidence adduced - Effect of - Claimant’s explanations for the same - Whether could be accepted - Whether this misconduct had been established against him - Whether the company had successfully discharged its burden of proof - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Breach of company rules and policies - Violence at the workplace - Claimant allegedly punching his colleague in the lower back - Whether proven by the company - Evidence adduced - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Constructive dismissal - Benefits - Whether the claimant had been dismissed during the period he had received temporary disablement benefits - Evidence adduced - Evaluation of - Effect of - Employees’ Social Security Act 1969, s. 53 Constructive dismissal - Status - Claimant suspended indefinitely pending outcome of investigation - Whether the claimant had known why he had been suspended - Whether constructive dismissal proven by him - Evidence adduced - What the claimant should have done - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Constructive dismissal - Status - Claimant suspended for an indefinite period of time pending investigations - Whether the company had the authority to do that - Factors to consider - Effect of - Whether the company by its conduct had evinced an intention to no longer be bound by the contract of employment - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Constructive dismissal - Status - Claimant transferred to RMDD due to his medical condition - Claimant claiming that new job not befitting his experience and qualifications - Claimant’s two competing interests - Which one should take precedence - Factors to consider - Claimant tendering his resignation - Whether he had been constructively dismissed by the respondent company - Whether the requirements of constructive dismissal had been fulfilled Insubordination - Whether the claimant had refused to return to work when directed - Evidence adduced - Effect of - Whether that had constituted insubordinate behaviour - Whether the claimant’s behaviour had been acceptable - His reasons for the same - Whether acceptable - Whether charge proven by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Claimant accused of failing to bring in revenue for the company - Whether it had constituted misconduct - Alleged misconduct never mentioned in the company’s letter to him or pleaded by the company - Whether it had been an afterthought - Effect of - Whether the misconduct had been proven against him Misconduct - Claimant accused of having dealings with SFI and acting in conflict of interest with the company - Whether proven by the company - Evidence adduced - Effect of - Whether the misconduct had been proven against him Misconduct - Claimant accused of misconduct - Whether it had covered his period of employment with the company - Evidence adduced - Allegations surfacing much later - Company’s behaviour towards him - What the company should have done - Effect of - Whether the misconduct had been proven against him Notice of termination - Forced resignation - Claimant transferred to RMDD due to his medical condition and assigned duties in accordance with the specialist’s advice - Claimant seeking a transfer - Respondent company denying his request - Reasons for the same - Whether the reasons had been acceptable - Evidence adduced - Evaluation of - Effect of - Claimant resigning - Whether the claimant had been forced to resign Notice of termination - Forced resignation - Whether the claimant had resigned voluntarily - Evidence adduced - Effect of - Whether he had chosen to walk out of his employment DOMESTIC INQUIRY Charge - Charge amended - Claimant not informed - Whether he should have been informed - Whether it had prejudiced his defence - Factors to consider - Effect of - Whether the charge levelled against the claimant had been ambiguous, vague and inconsistent Procedural impropriety - The Prosecuting Officer had been involved in the determination of the claimant’s punishment - Verbatim notes of DI not produced - Whether that had been in breach of the rules of natural justice - Factors to consider - Effect of - Whether the DI had been defective, improper and perverse EVIDENCE Adverse inference - Non-production of a material witness - Complainant not called as a witness for the company - Whether he had been an important and material witness - No reasons given by the company - No attempts taken by the company to secure his attendance at hearing - Whether an adverse inference ought to be drawn against the company for failing to produce him - Evidence Act 1950, s. 114(g) Documentary evidence - Findings of the DI - Whether perverse - Factors to consider - COW1 sitting alone on the panel of inquiry - Whether he had been an independent decision maker Witness - Conflicting evidence - COW1’s evidence riddled with inconsistencies - Whether should be viewed with caution - Claimant and his witnesses evidence in conflict with each other - Who had been more believable - Factors to consider - Effect of Witness - Credibility - Whether the claimant had been a credible witness - Testimony of the claimant - Evaluation of Witnesses - Failure to call - Company failing to secure attendance of DI panel members for hearing of matter - Whether their attendance would have benefited the company’s case - Factors to consider - Effect of LABOUR LAW Employment - Termination - Insubordination - Regional General Manager summarily dismissed on grounds of insubordination - Nature and limit of employee’s duty to obey orders of superior - Whether insubordination strikes at root of employment contract - Whether serious enough to justify summary dismissal - Test for determining whether employee should be dismissed - Whether punishment of termination proportionate - Whether Industrial Court committed error warranting its decision being quashed by certiorari - Industrial Relations Act 1967, s. 20(1) Employment - Termination - Proportionality - Whether punishment of termination proportionate - Test of reasonable employer in British Leyland UK Ltd v. Swift Pacific World Destination East Sdn Bhd v. Ngiam Geok Mooi & Anor (Collin Lawrence Sequerah JC) [2015] 4 ILR 229 TRADE DISPUTE Collective Agreement - Terms and conditions of the CA - Article on allowances - Whether the existing provisions of the 10th CA ought to be retained - Factors to consider Collective Agreement - Terms and conditions of the CA - Article on company undertaking - Whether “check-off” had been included - Whether the respondent company’s proposal to limit company transport to the employees and supplement it with a transport allowance of RM30 per month could be accepted - Factors to consider - Effect of Collective Agreement - Terms and conditions of the CA - Article on duration and termination of the agreement - Whether a savings clause should be incorporated into the CA - Factors to consider - Effect of - Industrial Relations Act 1967, ss. 14(2)(c), 17(2) and Part IV Collective Agreement - Terms and conditions of the CA - Article on hours of work - Whether the existing provisions of the 10th CA ought to be retained - Factors to consider Collective Agreement - Terms and conditions of the CA - Article on interpretation and the definition of the CA - What the definition of “ordinary rate of pay” should be - Factors to consider - Employment Act 1955, ss. 7A and 60I Collective Agreement - Terms and conditions of the CA - Article on job classification, salary scale, annual increment and salary adjustment - Whether the minimum wages in the various job categories had been very low compared to the minimum wages of RM900 as provided under the Minimum Wages Order 2012 - Whether the Harun J formula ought to be applied - Factors to consider - Effect of - Whether a salary adjustment of 10% ought to be granted - Factors to consider - Whether the annual increment for all job categories ought to be increased by RM5 - Factors to consider Collective Agreement - Terms and conditions of the CA - Article on leave for union activities - Whether conducive to reduce the participation of the representatives of the Worksite Committee in negotiations for collective agreements and attendance at the Industrial Relations Office, Labour Office and the IC - Factors to consider - Whether the respondent’s proposal to increase the period of the notice for attendance at meetings and union seminars from three to seven days could be accepted - Factors to consider - Effect of Collective Agreement - Terms and conditions of the CA - Article on legislation - Whether the union’s proposal ought to be adopted - Factors to consider Collective Agreement - Terms and conditions of the CA - Article on overtime - Whether the respondent’s proposal to reduce the duration of the meal break for employees who did overtime could be accepted - Factors to consider Collective Agreement - Terms and conditions of the CA - Article on promotions - Whether the respondent’s proposal that they be given more time to decide on the confirmation of the post of an employee who had been promoted could be accepted - Factors to consider - Industrial Relations Act 1967, s. 13(3)(a) Collective Agreement - Terms and conditions of the CA - Article on public holidays - Whether the union’s proposals ought to be accepted - Whether there ought to be more clarity in respect of federal or state declared public holidays which are declared at the last minute - Factors to consider - Effect of - Holidays Act 1951 & Employment Act 1955, s. 60D(1)(b) Collective Agreement - Terms and conditions of the CA - Article on the recognition of the union - Whether the provisions on the conduct of activities by the union and the use of notice boards at the place of work could be included in the CA - Factors to consider - Industrial Relations Act 1967, ss. 7 and 30(5A) Punishment Order - Claimant demoted - Negligence - Whether the claimant had been negligent in the discharge of his duties - Factors to consider - Effect of - Position held by the claimant in the estate Punishment Order - Claimant demoted - Performance - Unsatisfactory performance - Whether proven by the company - Factors to consider - Evidence adduced - Effect of - Whether the claimant had been given sufficient opportunity to improve - Position held by the claimant - Whether the demotion had been tainted with mala fide intent - Whether the union’s claim ought to be allowed Punishment Order - Claimant demoted - Performance - Unsatisfactory performance - Whether the claimant had been incompetent in the performance of his job functions - Factors to consider - Whether the company’s evaluations of his performance had been bona fide - Factors to consider - Evidence adduced - Whether the company had been justified in demoting him INDEKS PERKARA KETERANGAN Keterangan dokumentar - Keputusan SD - Kesalahan pada tarikh yang dinyatakan dalam surat tunjuk sebab dan semasa SD - Sama ada YM terkeliru berkenaan pertuduhan yang dikenakan terhadapnya - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada keputusan SD adalah cacat Keterangan dokumentar - Keputusan SD - Sama ada tandatangan YM di atas dapatan SD telah dipalsukan - Faktor-faktor yang harus diambil kira - YM membuat laporan polis - Kesannya - Akta Keterangan 1950, s. 101 PEMBUANGAN KERJA Ketidakpatuhan terhadap polisi syarikat - Kecuaian - YM melepaskan trak walaupun tahu bahawa pemandu trak tidak mempunyai lesen memandu yang sah - Sama ada salah laku tersebut berjaya dibuktikan oleh syarikat responden - Keterangan yang dikemukakan - Kesannya - Penjelasan YM - Sama ada memuaskan - Sama ada dapat diterima - Sama ada tindakan syarikat responden menamatkan perkhidmatannya munasabah - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada YM telah dibuang kerja tanpa alasan yang adil dan bersebab - Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5) Ketidakpatuhan terhadap polisi syarikat - Kecuaian - YM mengaku kepada salah laku tersebut - Kesannya - YM berkhidmat dengan syarikat selama 4 ½ tahun - Rekod perkhidmatan YM dengan syarikat responden - Kejujuran YM - Sama ada harus diambil kira - Sama ada syarikat responden mendapat keuntungan daripada tindakannya itu - Sama ada tindakan membuang kerja beliau terlalu keras - Apa yang seharusnya dilakukan oleh syarikat responden - Sama ada pembuangan kerjanya telah dilakukan tanpa alasan yang adil dan bersebab |
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