LATEST CASES (ILR Issue 11 of 2019)

SUBJECT INDEX

ADMINISTRATIVE LAW

Dismissal from public service – Dismissal from police force – Whether decision-process of Disciplinary Authority compromised and tainted with procedural impropriety – Whether Disciplinary Authority relied on materials or information prejudicial to public servant – Whether public servant afforded opportunity to contradict material – Allegation that Disciplinary Authority's decision based on investigative body's findings – Whether investigative body's findings binding on Disciplinary Authority
Muhammad Farid Muntalib v. Tan Sri Dato' Sri Khalid Abu Bakar & Ors
(Rohana Yusuf, Badariah Sahamid & Abdul Rahman Sebli JJCA) [2019] 4 ILR 241

Judicial review – Appeal against – Appeal against decision of Minister of Human Resources ('Minister') – Bank's clerks given opportunity to apply for position of customer service executives ('CSEs') – Discovery that CSEs continued to perform tasks similar to those performed prior to promotions – Matter referred to Director-General of Industrial Relations ('DGIR') who then referred to Minister – Minister decided that CSEs not employed in managerial, executive or security capacities – Whether Minister in breach of laws – Whether Minister acted in excess of power in arriving at decision – Whether Minister required to produce DGIR's report in court – Whether incumbent on Minister or DGIR to refer matter to Director-General of Trade Union first – Whether decision of Minister ought to be quashed – Industrial Relations Act 1967
Alliance Bank Malaysia Bhd v. Menteri Sumber Manusia, Malaysia & Ors
(Umi Kalthum Abdul Majid, Abdul Rahman Sebli & Zaleha Yusof JJCA) [2019] 4 ILR 209

CONTRACT OF EMPLOYMENT

Existence of – Whether there had existed a contract of employment between the parties for the position of Turnaround Consultant – Factors to consider – Evidence adduced – Evaluation of – Effect of
Albert Maximillian Marino Parlanti v. Grand Palazzo Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 4 ILR 395

Notice of termination – Company stating and pleading retirement for his termination – Whether proven – Evidence adduced – Evaluation of – Effect of – Whether the claimant had in fact been dismissed
Tham Kah Fook v. MOL Accessportal Sdn Bhd
(Franklin Goonting) [2019] 4 ILR 351

Terms and conditions – Claimant executing two documents containing contradictory terms of employment – Which document had prevailed – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the claimant had been dismissed by the company – Whether dismissal without just cause and excuse
Tham Kah Fook v. MOL Accessportal Sdn Bhd
(Franklin Goonting) [2019] 4 ILR 351

Terms and conditions – Validity of – Whether the backdated Letter of Employment issued by COW3 to him had been valid – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether he had obtained the Letter of Employment by fraudulent and dishonest means – What his behaviour had shown – Whether he had been guilty of misconduct – Whether it had justified his dismissal – Whether dismissal without just cause and excuse
Albert Maximillian Marino Parlanti v. Grand Palazzo Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 4 ILR 395

DISMISSAL

Absenteeism – Whether the claimant had been absent from work without leave – Factors to consider – Evidence adduced – Effect of – Claimant's explanations – Whether could be accepted – Whether this allegation had been proven against him – Whether his dismissal had been with just cause and excuse
Mahmud Redza Arbee v. Gartner Research & Advisory (Malaysia) Sdn Bhd
(Noor Hayati Haji Mat) [2019] 4 ILR 431

Attendance – Lateness – Whether the claimant had been persistently late to work without leave – Factors to consider – Evidence adduced – Effect of – Whether the company had succeeded in proving this charge against her – Claimant admitting to the same but justifying it – Whether her justification could be accepted – Effect of – Whether the company had been justified in dismissing her – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Tini Syeed Sultan v. Petroliam Nasional Berhad (Petronas)
(Paramalingam J Doraisamy) [2019] 4 ILR 268

Constructive dismissal – Change in job functions – Whether the claimant's change in job functions, from handling three portfolios to a single one, had been a fundamental breach of her contract of employment – Factors to consider – Evidence adduced – Effect of – Whether her claim for constructive dismissal ought to be allowed
Sharifah Faridah M.A.G. Abdul Rasheed v. Malaysia Smelting Corporation Berhad
(Sarojini Kandasamy) [2019] 4 ILR 360

Constructive dismissal – Demotion – Whether the claimant's re-designation to the position of Head of Legal had been a demotion and a reduction in her status – Factors to consider – Evidence adduced – Evaluation of – Effect of – Cumulative actions of the company towards her – Whether reasonable – Whether it had acted with mala fide intent – Whether it had justified her walking out of her employment and claiming constructive dismissal
Sharifah Faridah M.A.G. Abdul Rasheed v. Malaysia Smelting Corporation Berhad
(Sarojini Kandasamy) [2019] 4 ILR 360

Insubordination – Whether the claimant had been insubordinate – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the allegation had been proven by the company against him – His explanations – Whether could be accepted – Whether his performance had been affected – Whether his actions had justified his dismissal – Whether his dismissal had been with just cause and excuse
Mahmud Redza Arbee v. Gartner Research & Advisory (Malaysia) Sdn Bhd
(Noor Hayati Haji Mat) [2019] 4 ILR 431

Misconduct – Whether the claimant had assisted RSH to obtain gratuity in the Said Sum without the Board's approval, knowing that the former had not been entitled to it – Factors to consider – Evidence adduced – Effect of – Position held by the claimant in the company – What his responsibilities to the company had been – What his conduct had shown – What his defence had been – Whether acceptable – Whether his conduct had justified his dismissal – Factors to consider – Effect of – Whether dismissal with just cause and excuse
Mohd Isa Mujani v. Eastern Pacific Industrial Corporation Berhad
(Jalaldin Hussain) [2019] 4 ILR 291

Misconduct – Whether the claimant had colluded and conspired to deceive the company and abet RSH, by not informing and concealing the payment of gratuity through 5 cheques totalling the Said Sum for the benefit of RSH, from the knowledge of COW5, the Chairman and the Board – Evidence adduced – Evaluation of – Effect of – Whether the charge had successfully been proven against him
Mohd Isa Mujani v. Eastern Pacific Industrial Corporation Berhad
(Jalaldin Hussain) [2019] 4 ILR 291

Misconduct – Whether the claimant had colluded and conspired to deceive the company by abetting RSH and abusing his authority and/or position and dishonestly instructing the employees of the company to prepare and issue a letter of award for dredging at Pulau Kucing, without the Board of TI's approval – Evidence adduced – Evaluation of – Effect of – Whether the charge had been proven against him
Mohd Isa Mujani v. Eastern Pacific Industrial Corporation Berhad
(Jalaldin Hussain) [2019] 4 ILR 291

Misconduct – Whether the claimant had colluded and conspired to deceive the company, by abetting RSH and manipulating the Board by not highlighting or explaining the exorbitant and unacceptable formula on gratuity for RSH – Evidence adduced – Evaluation of – Effect of – Whether the claimant had acted well beyond his powers – Factors to consider – Effect of – Whether his actions had been serious enough to justify his dismissal – Whether dismissal without just cause and excuse
Mohd Isa Mujani v. Eastern Pacific Industrial Corporation Berhad
(Jalaldin Hussain) [2019] 4 ILR 291

Misconduct – Whether the claimant had failed in his responsibilities as the GM of Group Human Resources, Administration & Procurement when he had failed to take action against RSH for the return of the Said Sum despite being instructed by the company to do so – Evidence adduced – Evaluation of – Effect of – What his actions had shown
Mohd Isa Mujani v. Eastern Pacific Industrial Corporation Berhad
(Jalaldin Hussain) [2019] 4 ILR 291

Misconduct – Whether the claimant had made wrongful allegations on the closure of the restaurant – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether successfully proven by the company
Albert Maximillian Marino Parlanti v. Grand Palazzo Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 4 ILR 395

Misconduct – Whether the claimant had persistently left work early without permission – Factors to consider – Evidence adduced – Effect of – Whether the company had succeeded in proving this charge against her – Claimant admitting to the same but justifying it – Whether her justification had been reasonable – What it had shown – What her obligations towards the company, as an employee, had been – Claimant's years of service in the company – Whether dismissal without just cause or excuse
Tini Syeed Sultan v. Petroliam Nasional Berhad (Petronas)
(Paramalingam J Doraisamy) [2019] 4 ILR 268

Performance – Whether the claimant had been unable to deliver the results promised to the company, within the time frame agreed – Factors to consider – Evidence adduced – Effect of – Whether successfully proven by the company – Whether it had justified his dismissal – Claimant's defence – Whether could be accepted
Albert Maximillian Marino Parlanti v. Grand Palazzo Sdn Bhd
(P Iruthayaraj D Pappusamy) [2019] 4 ILR 395

Retirement – Whether the claimant had been retired by the company – Factors to consider – Evidence adduced – Effect of – Whether he had been subject to the Minimum Retirement Age Act 2012
Tham Kah Fook v. MOL Accessportal Sdn Bhd
(Franklin Goonting) [2019] 4 ILR 351

EVIDENCE

Witness – Material contradictions and inconsistencies – Whether COW1 had been a credible witness – His evidence and demeanour – What it had shown – Whether his testimony had to be viewed with caution
Sharifah Faridah M.A.G. Abdul Rasheed v. Malaysia Smelting Corporation Berhad
(Sarojini Kandasamy) [2019] 4 ILR 360

INDUSTRIAL COURT

Award – Appeal against – Industrial Court found dismissal of employee without just cause and excuse – Employer appealed to High Court – High Court quashed decision of Industrial Court – Whether threshold to be satisfied by employer resisting claim for dismissal high – Whether industrial jurisprudence leaned towards employee – Whether cases of poor performance technical and required many issues to be considered – Whether finding fell into realm of Industrial Court – Whether High Court ought to be slow to intervene – Whether decision of Industrial Court ought not to be disturbed
Andrew Chuah Khim Peik v. HLG Capital Bhd
(Hamid Sultan Abu Backer, Mary Lim & Hanipah Farikullah JJCA) [2019] 4 ILR 226

Jurisdiction – Whether the claimant had abandoned the remedy of reinstatement – Evaluation of the pleadings and submissions by her – Effect of – Whether the Industrial Court had jurisdiction to hear the matter
Sharifah Faridah M.A.G. Abdul Rasheed v. Malaysia Smelting Corporation Berhad
(Sarojini Kandasamy) [2019] 4 ILR 360

Remedies – Backwages – What would be a suitable figure to award – Factors to consider – Evidence adduced – Effect of
Tham Kah Fook v. MOL Accessportal Sdn Bhd
(Franklin Goonting) [2019] 4 ILR 351

Remedies – Punishment – Claimant being insubordinate to his employer – Whether the punishment of dismissal had been proportionate to his alleged misconduct – Factors to consider – Effect of – What the company should have done instead – Whether dismissal too harsh under the circumstances of the case
Mahmud Redza Arbee v. Gartner Research & Advisory (Malaysia) Sdn Bhd
(Noor Hayati Haji Mat) [2019] 4 ILR 431

Remedies – Punishment – Factors to consider when contemplating whether to dismiss an employee from service – Whether the claimant had shown remorse for his actions – Effect of – Claimant's position in the company – His subsequent actions after committing the misconduct – Company suffering loss in the Said Sum – Effect of – Whether the punishment of dismissal had been proportionate to his misconduct – Whether dismissal without just cause and excuse
Mohd Isa Mujani v. Eastern Pacific Industrial Corporation Berhad
(Jalaldin Hussain) [2019] 4 ILR 291

Remedies – Reinstatement – Whether appropriate to award the nonresident claimant – Factors to consider – Evidence adduced – Effect of – What would be a suitable remedy to award instead
Tham Kah Fook v. MOL Accessportal Sdn Bhd
(Franklin Goonting) [2019] 4 ILR 351

LABOUR LAW

Employment – Dismissal – High ranking employee – Industrial Court found dismissal of employee without just cause and excuse – Employer appealed to High Court – High Court quashed decision of Industrial Court – Employee appealed against High Court decision – Whether threshold to be satisfied by employer resisting claim for dismissal high – Whether industrial jurisprudence leaned towards employee – Whether cases of poor performance technical and required many issues to be considered – Whether finding fell into realm of Industrial Court – Whether High Court ought to be slow to intervene – Whether decision of Industrial Court ought not to be disturbed
Andrew Chuah Khim Peik v. HLG Capital Bhd
(Hamid Sultan Abu Backer, Mary Lim & Hanipah Farikullah JJCA) [2019] 4 ILR 226

TRADE DISPUTE

Collective Agreement – Terms and conditions of service – Whether the company could be compelled to promote Kannan from the non-clerical staff to the Clerical staff category of employees – Factors to consider – Evidence adduced – Effect of – What Kannan's job specifications had been – Effect of – Industrial Relations Act 1967, ss. 13(3) & 30(5)
All Malayan Estates Staff Union v. IOI Research Centre Gemencheh
(Franklin Goonting) [2019] 4 ILR 262