NATIONAL UNION OF TRANSPORT EQUIPMENT AND ALLIED INDUSTRIES WORKERS v. PEPS-JV (MELAKA) SDN BHD
INDUSTRIAL COURT, KUALA LUMPUR
ANNA NG FUI CHOO
EMPLOYEES’ PANEL: NG SOO SEONG
EMPLOYERS’ PANEL: MURUGAHIA TIRUGANASAMBANTHAN
AWARD NO. 1479 OF 2020 [CASE NO: 3/3-2088/19]
6 OCTOBER 2020

TRADE DISPUTE: Collective Agreement – Terms and conditions of service – Article on overtime payment for work done on rest days and public holidays – Company unilaterally changing the benefits under the two articles of the CA by way of its Circular – Whether the company’s actions had contravened the articles in the CA – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, ss. 17 & 30(5)

YANG MEE ENG v. MALAYSIA DIGITAL ECONOMY CORPORATION SDN BHD
INDUSTRIAL COURT, KUALA LUMPUR
NOR AFIZAH HANUM MOKHTAR
AWARD NO. 1640 of 2020 [CASE NO: 20/4-1801/18]
9 NOVEMBER 2020

DISMISSAL: Constructive dismissal – Transfer – Claimant transferred – Whether she had delayed in claiming constructive dismissal – Factors to consider – Evidence adduced – Effect of – Whether she had given reasonable explanation for her delay – Whether her claim ought to be allowed

DISMISSAL: Constructive dismissal – Transfer – Claimant transferred – Reasons for the same – Whether the company had been justified in its actions towards her – Factors to consider – Evidence adduced – Effect of – Whether its actions had been a fundamental breach that had gone to the root of her contract of employment – Whether the transfer had been carried out bona fide – Whether the claimant had been constructively dismissed – Whether dismissal without just cause and excuse

INDUSTRIAL COURT CITES COVID-19 TO DENY WAGE REVISION IN CA DISPUTE
Unions fear Industrial Court award in collective agreement dispute sets bad precedent
A recent Industrial Court (IC) award in a collective agreement (CA) dispute that used Covid-19 as a reason to deny any salary revision has set a bad precedent for future negotiations, say unions. Another blow in the same decision was limiting the backdating of revised benefits to six months from the date the dispute was referred to the court by the human resources minister although the CA negotiations began in January 2018. In the written decision handed down by Penang Industrial Court chairman Domnic Selvam Gnanapragasam on Nov 26, the new CA became effective only in July last year after the dispute was referred to the IC the previous December by former human resources minister M Kula Segaran.

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UNFAIR DISMISSAL CASE RULED TO BE “ENTIRELY WITHOUT MERIT” AFTER EMPLOYEE REFUSED TO WORK FROM HOME AND THEN RESIGNED
Employee who refused to WFH and then resigned had not been constructively dismissed
In order to access the unfair dismissal jurisdiction, an employee must be ‘dismissed’ from their employment by the employer. One of the instances in which an employee may be ‘dismissed’ from their employment is if they were forced to resign because of the employer’s conduct or course of conduct. This is referred to as “constructive dismissal”. This can often be a contentious issue as employees may perceive that they have no option but to resign in certain situations when in fact there are other options available to them rather than resignation. In McKean v Red Energy Pty Ltd [2020] FWC 5688, the Fair Work Commission (FWC) rejected an employee’s claim that he was forced to resign because of his employer’s actions and upheld the employer’s jurisdictional objection to the employee’s unfair dismissal application that he was not ‘dismissed’.

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