LATEST CASES (ILR Issue 2 of 2021)

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review – Certiorari – Public service – Application to quash decisions of Disciplinary Board ('DB') and/or Disciplinary Appeal Board ('DAB') – Public officer charged and found guilty of misconduct – DB pronounced punishment of reduction of three salary scales for period of 36 months ('first decision') – Public officer appealed to DAB against first decision – DAB remitted matter back to DB for re-consideration without setting aside first decision – DB re-pronounced same punishment and decision affirmed by DAB – Whether first punishment remained in force and still subsisted – Whether there was real likelihood that may be predisposed to affirm sentence that had not been set aside – Whether failure of DAB to set aside first punishment amounted to procedural impropriety – Whether procedural impropriety tainted proceedings of misconduct – Whether caused prejudice to public officer – Whether decisions of DB and/or DAB ought to be quashed – Rules of Court 2012, O. 53
Dato' Dr Mohamad Rameez Yahaya v. Lembaga Tatatertib Perkhidmatan Awam Kumpulan Pengurusan (No. 1) & Anor
(Badariah Sahamid, Suraya Othman, Lau Bee Lan JJCA) [2021] 1 ILR 301

Public officer – Disciplinary proceedings – Application for judicial review by public officer to quash decisions of Disciplinary Board ('DB') and/or Disciplinary Appeal Board ('DAB') – Public officer charged and found guilty of misconduct – Disciplinary Board ('DB') pronounced punishment of reduction of three salary scales for period of 36 months ('first decision') – Public officer appealed to Disciplinary Appeal Board ('DAB') against first decision – DAB remitted matter back to DB for re-consideration without setting aside first decision – DB re-pronounced same punishment and decision affirmed by DAB – Two proceedings by DB on same charge – Effective date of punishment not stated – Whether there was certainty in effective date of implementation and duration of punishment – Whether prejudicial to public officer considering severity of punishment – Whether decisions tainted with procedural impropriety – Whether decisions of DB and/or DAB ought to be quashed – Rules of Court 2012, O. 53
Dato' Dr Mohamad Rameez Yahaya v. Lembaga Tatatertib Perkhidmatan Awam Kumpulan Pengurusan (No. 1) & Anor
(Badariah Sahamid, Suraya Othman, Lau Bee Lan JJCA) [2021] 1 ILR 301

CONTRACT OF EMPLOYMENT

Terms and conditions – Whether the CIMB Fusion Programme had been a contract of employment between the company and the claimant – Claimant removed from the Programme – Effect of – Whether she had been dismissed by the company – Factors to consider – Evidence adduced – Effect of – Company's actions towards her – What it had shown – What her conduct had shown – Effect of – Where her recourse had lain – Whether her action brought under s. 20 of the IRA had been correct
Yong Pui Yee v. PricewaterhouseCoopers
(Paramalingam J Doraisamy) [2021] 1 ILR 387

Terms and conditions – Whether the CIMB Fusion Programme had been a contract of employment between the company and the claimant – Factors to consider – Evidence adduced – Evaluation of – Effect of – Intention of the parties – Claimant removed from the CIMB Fusion Programme – Whether the company had been obliged to re-employ her under a third employment contract
Yong Pui Yee v. PricewaterhouseCoopers
(Paramalingam J Doraisamy) [2021] 1 ILR 387

DISMISSAL

Breach of company rules and policies – Medical leave – Claimant accused of lying about her sickness and her inability to properly perform her duties that had been assigned to her by the company in order to attend the seminar – Whether successfully proven by the company against her – Factors to consider – Evidence adduced – Effect of – Claimant's explanations – Whether could be accepted – What being on medical leave had meant – Company's actions against her – What it had shown – Whether it had justified her dismissal – Whether dismissal without just cause and excuse
Jolene Lee Miao Chi v. Iflix Sdn Bhd
(Augustine Anthony) [2021] 1 ILR 436

Breach of company rules and policies – Negligence – Claimant accused of failing to complete her work by the given deadline, in serious neglect of her duties, by lying about being ill and needing a day of sick leave to attend the MyIPO seminar – Whether successfully proven by the company against her – Factors to consider – Evidence adduced – Effect of – Whether it had amounted to blatant dishonesty, breach of the trust that had been reposed in her and gross misconduct – Claimant submitting a valid medical certificate – What it had shown – Whether the company's allegations against her had been serious and unwarranted – Whether it had justified her dismissal – Whether dismissal without just cause and excuse
Jolene Lee Miao Chi v. Iflix Sdn Bhd
(Augustine Anthony) [2021] 1 ILR 436

Breach of company rules and policies – Negligence – Claimant not present when the Technician(s) had opened the ATM machines – Reasons for his absence – Technician(s) actions thereafter – Company robbed of cash from the ATM – Effect of – Whether the claimant had been in breach of the company's rules, procedures and/or SOPs – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the charge had been proven by the company against him – Whether it had justified his dismissal – Whether dismissal without just cause and excuse
Zamri Nil v. Safeguards G4S Sdn Bhd
(Teoh Chin Chong) [2021] 1 ILR 420

Breach of company rules and policies – Negligence – Claimant overriding the company's security procedures in relation to its Armoured Van, without its consent – Reasons for the same – Implications on the company – Whether serious – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had proven the charge on a balance of probability – Claimant's defence – Whether could be accepted – Whether the claimant's dismissal had been carried out with just cause and excuse
Mohd Khairul Nizam Othman v. Safeguards G4S Sdn Bhd
(Andersen Ong Wai Leong) [2021] 1 ILR 461

Breach of company rules and policies – Sexual harassment – Whether the claimant had committed workplace or sexual harassment by, amongst other things, using the words "Pishy Pia" on COW1 – Factors to consider – Evidence adduced – Effect of – Whether the charges had been proven by the company against him – Whether it had amounted to serious misconduct – Whether it had justified his dismissal
Harry Wong Wei Chen v. Petroliam Nasional Berhad (Petronas)
(Paramalingam J Doraisamy) [2021] 1 ILR 340

Breach of company rules and policies – Sexual harassment – Whether the claimant had sexually harassed COW1 on numerous occasions by his words and actions towards her – Factors to consider – Evidence adduced – Effect of – Whether the charges had been proven by the company against him – His defence – Whether acceptable – Whether his actions had amounted to serious misconduct – Whether it had justified his dismissal – Position held by the claimant in the company – Whether dismissal without just cause and excuse
Harry Wong Wei Chen v. Petroliam Nasional Berhad (Petronas)
(Paramalingam J Doraisamy) [2021] 1 ILR 340

Breach of company rules and policies – Sexual harassment – Whether the claimant had used crude, vulgar and abusive language towards COW1 on several occasions – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether it had constituted workplace harassment or bullying – Whether the charges had been proven by the company against him – Claimant's defence – Whether could be accepted – Whether supported by the evidence – Whose version of events had been more probable – COW1's conduct and actions after the incidents had taken place – Whether the claimant's conduct had justified his dismissal – Whether dismissal without just cause and excuse
Harry Wong Wei Chen v. Petroliam Nasional Berhad (Petronas)
(Paramalingam J Doraisamy) [2021] 1 ILR 340

Constructive dismissal – Demotion – Claimant demoted after being found guilty of the charge at the DI – Whether demotion had been justified under the circumstances – Whether the punishment of demotion had been provided for in the terms and conditions of his employment – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company, by its actions, had breached a fundamental term of his contract of employment – Whether it had justified him walking out of his employment and claiming constructive dismissal
Zamri Nil v. Safeguards G4S Sdn Bhd
(Teoh Chin Chong) [2021] 1 ILR 420

Criminal conviction – Claimant arrested by Australian authorities and questioned for smuggling activities – Company dismissing him before his case had been heard and a decision handed down – Whether it had acted hastily – Factors to consider – Evidence adduced – Effect of – Suspension, show cause and termination letters served at his last known address and acknowledged receipt of by his wife – Effect of – Whether the reasons stated in them had been ambiguous – What the company should have done instead – Whether his dismissal had been carried out with just cause and excuse
Macmillan Lawrence Solibun v. Malaysia Airlines Berhad
(Teoh Chin Chong) [2021] 1 ILR 409

Gross misconduct – Claimant accused of failing, refusing and/or neglecting to deliver a valid medical certificate in respect of her sickness on the day in question – Allegation not stated in the show cause letter and only brought up after the conclusion of the inquiry – Whether it had had any basis to it – Factors to consider – Effect of – Company's treatment towards her – What it had shown – Whether her dismissal had been without just cause and excuse
Jolene Lee Miao Chi v. Iflix Sdn Bhd
(Augustine Anthony) [2021] 1 ILR 436

Misconduct – Claimant accused of passing the 2nd CENCON Key and the password to the two ATM Machines to the Technician(s), in violation of the company's established procedures – Whether it had amounted to gross misconduct – This allegation not put to him in either the show cause letter or the DI – Effect of – Claimant demoted due to this allegation – Whether the company had successfully proven the allegation against him – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether he had been guilty of gross misconduct
Zamri Nil v. Safeguards G4S Sdn Bhd
(Teoh Chin Chong) [2021] 1 ILR 420

Misconduct – Claimant overriding the company's security procedures in relation to its Armoured Van, without its consent – Whether it had constituted serious misconduct – Factors to consider – Evidence adduced – Effect of – Whether there had been any written procedures in place – Whether the company had succeeded in proving these charges against him – Whether dismissal without just cause or excuse
Mohd Khairul Nizam Othman v. Safeguards G4S Sdn Bhd
(Andersen Ong Wai Leong) [2021] 1 ILR 461

Performance – Poor Performance – Trainee claimant allegedly not performing – No warning letters issued to her – Effect of – Performance appraisal done by CIMB – Whether there had been anything amiss in the company's stand – Factors to consider – Evidence adduced – Effect of – Whether it had been essential to issue warnings in cases involving trainees under a graduate programme
Yong Pui Yee v. PricewaterhouseCoopers
(Paramalingam J Doraisamy) [2021] 1 ILR 387

DOMESTIC INQUIRY

Charge – Amendment of charge against the claimant – Claimant aware of and agreeing to it – Whether the amendment had been prejudicial to him or had caused him injustice
Zamri Nil v. Safeguards G4S Sdn Bhd
(Teoh Chin Chong) [2021] 1 ILR 420

Procedural impropriety – Whether the DI had been conducted fairly – Factors to consider – Evidence adduced – Effect of – Claimant agreeing to the composition of the DI panel at the outset and only objecting to it during the hearing before Court – Whether it had gone to his credibility
Harry Wong Wei Chen v. Petroliam Nasional Berhad (Petronas)
(Paramalingam J Doraisamy) [2021] 1 ILR 340

Procedural impropriety – Whether the Panel of the DI had been biased against the claimant – Factors to consider – Evidence adduced – Effect of – Whether the DI had been conducted in breach of the rules of natural justice – Whether the company had succeeded in establishing a prima facie case against the claimant
Zamri Nil v. Safeguards G4S Sdn Bhd
(Teoh Chin Chong) [2021] 1 ILR 420

Procedural impropriety – Whether the proceedings had been conducted in compliance with the rules of natural justice – Factors to consider – Evidence adduced – Effect of – Whether fatal to the company's case – Whether the company had succeeded in establishing a prima facie case against the claimant
Jolene Lee Miao Chi v. Iflix Sdn Bhd
(Augustine Anthony) [2021] 1 ILR 436

EVIDENCE

Corroboration – Some of the charges against the claimant, as alleged by COW1, uncorroborated by anyone – Whether the absence of corroboration had defeated complainant's allegation of sexual harassment – COW1's contemporaneous conduct in relation to the incidents – What it had shown
Harry Wong Wei Chen v. Petroliam Nasional Berhad (Petronas)
(Paramalingam J Doraisamy) [2021] 1 ILR 340

Documentary evidence – Notes of the DI – Company failing to provide the DI notes – Whether an adverse inference ought to be drawn against it for such omission – Factors to consider – Evidence adduced – Effect of – Whether the company's failure aforesaid had been fatal to its case – How Industrial Court hearings are conducted
Harry Wong Wei Chen v. Petroliam Nasional Berhad (Petronas)
(Paramalingam J Doraisamy) [2021] 1 ILR 340

Witness – Credibility – The claimant's and COW1's version of events completely different – Whose version had been more believable – Factors to consider – Effect of – Conduct of COW1 after the incidents – What it had shown – Who had been a more credible witness – Claimant's demeanour in court – Claimants' evidence in Court riddled with inconsistencies – Effect of
Harry Wong Wei Chen v. Petroliam Nasional Berhad (Petronas)
(Paramalingam J Doraisamy) [2021] 1 ILR 340

INDUSTRIAL COURT

Jurisdiction – Whether the Industrial Court had jurisdiction to hear matters against the Mauritius High Commission – Factors to consider – Evidence adduced – Effect of – Doctrine of sovereign immunity – What it had meant – Whether the High Commission had unequivocally consented to being sued – Evidence adduced – Effect of – Whether its submitting to the jurisdiction of the court had equalled consent – Effect of – What the doctrine of restrictive immunity had meant – Claimant's functions with the High Commission – Whether it had been sovereign in nature – Factors to consider – Evidence adduced – Effect of – Whether the matter ought to be dismissed
Davinder Kaur v. Mauritius High Commission
(Andersen Ong Wai Leong) [2021] 1 ILR 472

Jurisdiction – Whether the Industrial Court has jurisdiction to hear the representation of a workman employed by the embassy of a foreign state if the workman was performing governmental and sovereign functions of the foreign state – Factors to consider – Evidence adduced – Effect of
Davinder Kaur v. Mauritius High Commission
(Andersen Ong Wai Leong) [2021] 1 ILR 472

Remedies – Punishment – Claimant found guilty of the charge against him and demoted – Correspondingly suffering a reduction in salary – Whether it had constituted double punishment for the same misconduct – Whether the punishment meted out on him had been excessive and had amounted to a fundamental breach of his contract of employment – What the claimant's conduct had shown – Whether he had been constructively dismissed or had walked out of his employment on his own accord
Mohd Khairul Nizam Othman v. Safeguards G4S Sdn Bhd
(Andersen Ong Wai Leong) [2021] 1 ILR 461

Remedies – Reinstatement – Whether suitable to award in this case – Factors to consider – Evidence adduced – Effect of
Macmillan Lawrence Solibun v. Malaysia Airlines Berhad
(Teoh Chin Chong) [2021] 1 ILR 409

LABOUR LAW

Employment – Dismissal – Whether with just cause or excuse – Misconduct – Participation in assembly of workers' union – Whether illegal picket – Whether participation in union activity immunise employees from disciplinary action – Whether punishment proportionate with misconduct – Whether misconduct proven – Whether warranted punishment of dismissal
Muhamad Sukeri Mahudin v. Hicom Automotive Manufacturers (Malaysia) Bhd & Anor And Other Appeals
(Kamardin Hashim, Azizah Nawawi, Lee Heng Cheong JJCA) [2021] 1 ILR 323

Trade Union – Collective agreement – Negotiation on proposed collective agreement – Whether there was deadlock – Whether there was trade dispute – Termination of employment for participation in assembly organised by worker's union – Whether proportionate with misconduct – Whether misconduct proven – Whether warranted punishment of dismissal
Muhamad Sukeri Mahudin v. Hicom Automotive Manufacturers (Malaysia) Bhd & Anor And Other Appeals
(Kamardin Hashim, Azizah Nawawi, Lee Heng Cheong JJCA) [2021] 1 ILR 323