LATEST CASES (ILR Issue 4 of 2021)

SUBJECT INDEX

CONTRACT OF EMPLOYMENT

Appeal process – Whether the claimant had been deprived of the right to be heard at the Grievance Procedure Inquiries and the appeal to the Board of Directors – Factors to consider – Evidence adduced – Effect of – Whether there had been a breach of the rules of natural justice
Sahathevan Narissaman v. International School Of Kuala Lumpur
(Teoh Chin Chong) [2021] 2 ILR 62

Type of – Whether the claimant had been employed on genuine fixed-term contract(s) – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether he had had a legitimate expectation to continue in employment – School’s conduct – Terms and conditions of his contract(s) of employment – Claimant’s conduct and its implications – What it had shown – Whether the claimant had been dismissed – Whether dismissal without just cause and excuse – Employment Act 1955, s. 11(1)
Sahathevan Narissaman v. International School Of Kuala Lumpur
(Teoh Chin Chong) [2021] 2 ILR 62

DISMISSAL

Abandonment – Claimant tendering his resignation after receiving the suspension notice from the company – Effect of – What his actions had shown – Whether he had acted prematurely – What he should have done – Whether he had voluntarily walked out and abandoned his employment in an attempt to escape the disciplinary process
Abdul Qadir Osman Mohd Aros v. Institut Darul Ridzuan Berhad
(Reihana Abd Razak) [2021] 2 ILR 162

Breach of company rules and policies – Confidential information – Whether the claimant had leaked confidential information to external parties in breach of the company’s NDA – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had been successfully proven against him – Whether his actions had constituted serious misconduct – Company’s actions towards him – What it had shown – Whether his actions had warranted his dismissal – Factors to consider – Whether his dismissal had been without just cause and excuse
Roald Jan Splinter v. HQ Pack Sdn Bhd
(Kalmizah Salleh) [2021] 2 ILR 1

Constructive dismissal – Denial of entry into company premises – Whether the claimant had been denied entry into the company’s premises to perform his job – Evidence adduced – Evaluation of – Effect of – Whether it had justified him walking out and claiming constructive dismissal
Abdul Qadir Osman Mohd Aros v. Institut Darul Ridzuan Berhad
(Reihana Abd Razak) [2021] 2 ILR 162

Constructive dismissal – Salary – Non-payment of – Claimant delaying taking action – Whether he had waived the breach – Factors to consider – Evidence adduced – Effect of – Reasons for the company’s non-payment unchallenged by the claimant – Effect of – Whether it had justified him walking out of his employment and claiming constructive dismissal
Abdul Qadir Osman Mohd Aros v. Institut Darul Ridzuan Berhad
(Reihana Abd Razak) [2021] 2 ILR 162

Constructive dismissal – Suspension – Claimant seeking reasons for the suspension and objecting to it by way of letters – Company not responding to the claimant’s letters – Effect of – Whether the claimant had been suspended at the material time – Factors to consider – Evidence adduced – Effect of – Whether his actions had been premature – What he should have done – Whether the company’s failure to respond to his letters had constituted a fundamental breach of the contract of employment – Whether the company had been aware of the letters – Effect of – Whether the claimant’s claim for constructive dismissal ought to be allowed
Abdul Qadir Osman Mohd Aros v. Institut Darul Ridzuan Berhad
(Reihana Abd Razak) [2021] 2 ILR 162

Constructive dismissal – Suspension – Whether the company had committed a fundamental breach of his contract of employment by suspending him – Factors to consider – Effect of – Claimant’s conduct – What it had shown – Whether it had justified him walking out of his employment and claiming constructive dismissal
Abdul Qadir Osman Mohd Aros v. Institut Darul Ridzuan Berhad
(Reihana Abd Razak) [2021] 2 ILR 162

Insubordination – Whether the claimant had raised her voice at her Line Manager, whilst making disparaging, derogatory, degrading as well as threatening remarks using profanity, against him – Factors to consider – Evidence adduced – Effect of – Whether her conduct had constituted insubordinate behaviour – Claimant’s defence – Whether could be accepted – Whether the charge had successfully been proven by the bank – Effect of – Whether it had constituted serious misconduct – Whether it had justified her dismissal – Whether dismissal without just cause and excuse
Kavitha Chakravarthy v. Malayan Banking Berhad
(Augustine Anthony) [2021] 2 ILR 112

Misconduct – Claimant arrested and investigated by the Malaysian Anti-Corruption Commission on charges of bribery – Whether he had been guilty of the misconduct – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had been successfully proven by the company against him – Company’s actions prior to dismissing him – What it had shown – Effect of – Whether the company’s decision to dismiss him had been correct – Whether dismissal without just cause and excuse
Zulkeflee Abdullah v. Malaysia Airports Holdings Berhad
(Gulam Muhiaddeen Abdul Aziz) [2021] 2 ILR 129

Misconduct – Whether the claimant’s arrest and investigation by the MACC had tarnished the image and reputation of the company – Whether the company had lost its trust and confidence in his integrity and credibility – Evidence adduced – Evaluation of – Effect of – Company not conducting an investigation and instead relying on hearsay evidence – Effect of – What it should have done instead – Whether it had successfully proven the misconduct against the claimant – Claimant subsequently released without charge – Whether the claimant’s dismissal had been carried out with just cause and excuse
Zulkeflee Abdullah v. Malaysia Airports Holdings Berhad
(Gulam Muhiaddeen Abdul Aziz) [2021] 2 ILR 129

Misconduct – Whether the claimant had influenced other parties to resign from their current job – Whether he had been in breach of the “Nonsolicitation of Employees” clause in his contract of employment – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether proven by the company against him – Whether his conduct had justified his dismissal
Roald Jan Splinter v. HQ Pack Sdn Bhd
(Kalmizah Salleh) [2021] 2 ILR 1

Notice of termination – Claimant suspended vide WhatsApp communication – Whether it had been an acceptable or sufficient mode of communication between the parties – Factors to consider – Evidence adduced – Effect of
Abdul Qadir Osman Mohd Aros v. Institut Darul Ridzuan Berhad
(Reihana Abd Razak) [2021] 2 ILR 162

Notice of termination – Company relying on grounds not stated in the termination letter as reasons for the claimant’s dismissal – Whether it ought to be allowed – Factors to consider
Zulkeflee Abdullah v. Malaysia Airports Holdings Berhad
(Gulam Muhiaddeen Abdul Aziz) [2021] 2 ILR 129

Notice of termination – No reasons stated therein for his dismissal – Six reasons stated in the company’s Statement in Reply – Whether successfully proven by the company – Effect of
Roald Jan Splinter v. HQ Pack Sdn Bhd
(Kalmizah Salleh) [2021] 2 ILR 1

DOMESTIC INQUIRY

Absence of – Whether fatal to the bank’s case – Whether there had been a breach of the rules of natural justice
Kavitha Chakravarthy v. Malayan Banking Berhad
(Augustine Anthony) [2021] 2 ILR 112

EVIDENCE

Audio recording – Tape recording of conversation without claimant’s knowledge – Whether illegal – Whether could be accepted into evidence – Factors to consider – Evidence adduced – Effect of
Kavitha Chakravarthy v. Malayan Banking Berhad
(Augustine Anthony) [2021] 2 ILR 112

Witness – Whether the claimant had been a credible witness – Factors to consider – Evidence adduced – Effect of – Whether she had shown remorse in Court – Effect of
Kavitha Chakravarthy v. Malayan Banking Berhad
(Augustine Anthony) [2021] 2 ILR 112

TRADE DISPUTE

Collective agreement – Article on transport – Whether the company had unilaterally altered the existing transportation arrangement to its workers – Factors to consider – Evidence adduced – Effect of – Whether the union had successfully made out its case – Effect of – Whether the union’s claim ought to be allowed
Kesatuan Kebangsaan Pekerja-pekerja Syarikat-syarikat Pembuat Keluaran Getah v. Harvik Rubber Industries Sdn Bhd
(Paramalingam J Doraisamy) [2021] 2 ILR 147

Collective agreement – Existing benefits – Whether the company had unilaterally varied the existing terms of the Attendance Incentive payment scheme under art. 36(2) of the Collective Agreement, without consulting with the union – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had merely revised it – Whether the company, by its actions, had been in contravention of art. 2(4) of the Collective Agreement – Effect of – Industrial Relations Act 1967, s. 17
Kesatuan Kebangsaan Pekerja-pekerja Syarikat-syarikat Pembuat Keluaran Getah v. Harvik Rubber Industries Sdn Bhd
(Paramalingam J Doraisamy) [2021] 2 ILR 147

Collective agreement – Profit-sharing – Whether the company had paid its non-unionised employees a higher profit-sharing payment – Factors to consider – Evidence adduced – Effect of – Whether the union’s contention had been supported by the evidence – Effect of – Whether the union’s claim ought to be allowed
Kesatuan Kebangsaan Pekerja-pekerja Syarikat-syarikat Pembuat Keluaran Getah v. Harvik Rubber Industries Sdn Bhd
(Paramalingam J Doraisamy) [2021] 2 ILR 147

Collective Agreement – Terms and conditions of service – Appendix 7 – Whether the company’s proposal for an increase of 20% in the minimum salary and an increase of 20% in the maximum salary as per the table should be allowed – Factors to consider – Evidence adduced – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. PEPS-JV (Melaka) Sdn Bhd
(Anna Ng Fui Choo) [2021] 2 ILR 85

Collective Agreement – Terms and conditions of service – Article on annual increment – Whether the proposal for an increase ought to be allowed – Factors to consider – Evidence adduced – Effect of – Whether the company had had the financial ability to pay
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. PEPS-JV (Melaka) Sdn Bhd
(Anna Ng Fui Choo) [2021] 2 ILR 85

Collective Agreement – Terms and conditions of service – Article on recognition of the union, probation, promotion, grades and salary range, hours of work, overtime meal allowance, subsistence allowances, gazetted public holidays, annual leave, prolonged illness, retirement, existing benefits, check-off, attendance allowance and pilgrimage leave – Whether the status quo of the 1st CA ought to be maintained – Factors to consider – Evidence adduced – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. PEPS-JV (Melaka) Sdn Bhd
(Anna Ng Fui Choo) [2021] 2 ILR 85

Collective Agreement – Terms and conditions of service – Article on salary adjustment – Whether the proposal for an increase ought to be allowed – Factors to consider – Evidence adduced – Effect of – Whether the company had had the financial ability to pay
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. PEPS-JV (Melaka) Sdn Bhd
(Anna Ng Fui Choo) [2021] 2 ILR 85

Collective Agreement – Terms and conditions of service – Article on scope of agreement – Whether the medically boarded out ought to be included within the scope of the 2nd CA – Factors to consider – Evidence adduced – Effect of
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. PEPS-JV (Melaka) Sdn Bhd
(Anna Ng Fui Choo) [2021] 2 ILR 85

Collective Agreement – Terms and conditions of service – Article on shift allowance – Whether the proposal for an increase ought to be allowed – Factors to consider – Evidence adduced – Effect of – Whether the company had had the financial ability to pay
Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. PEPS-JV (Melaka) Sdn Bhd
(Anna Ng Fui Choo) [2021] 2 ILR 85

INDEKS PERKARA

KETERANGAN

Keterangan dokumentari – Nota Prosiding SD – Sama ada harus diterima oleh Mahkamah – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya
Hafizudin Ali lwn. Langkawi Holiday Villa Sdn Bhd
(Domnic Selvam Gnanapragasam) [2021] 2 ILR 27

PEMBUANGAN KERJA

Salah laku – Sama ada YM telah bertindak secara kasar terhadap Pn. Joseph, seorang tetamu syarikat responden – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Pembelaan YM – Sama ada dapat diterima – Sama ada salah laku tersebut berjaya dibuktikan oleh syarikat responden terhadapnya – Sama ada kesalahan lampau boleh diambil kira di dalam mengenakan hukuman ke atas YM – Sama ada salah laku tersebut merupakan satu salah laku yang serius – Industri syarikat responden – Kesannya – Sama ada pembuangan kerja YM telah dilakukan secara adil dan bersebab – Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Hafizudin Ali lwn. Langkawi Holiday Villa Sdn Bhd
(Domnic Selvam Gnanapragasam) [2021] 2 ILR 27