LATEST CASES (ILR Issue 7 of 2021)

SUBJECT INDEX

ADMINISTRATIVE LAW

Remedies – Certiorari – Award No. 1819 of 2019 quashed – Whether the matter ought to be remitted to the IC for determination of the relief – Factors to consider – Evidence adduced – Effect of
Tai Chin Yee v. Tong San Chan Distributors Sdn Bhd & Anor
(Su Tiang Joo JC) [2021] 3 ILR 29

Remedies – Damages – Post dismissal earnings – Whether needs to be taken into account to reduce the monetary compensation awarded – Factors to consider – Effect of – Charges of misconduct, involving breach of trust, later admitted to be false
Tai Chin Yee v. Tong San Chan Distributors Sdn Bhd & Anor
(Su Tiang Joo JC) [2021] 3 ILR 29

CIVIL PROCEDURE

Certiorari – Application for – Whether the IC’s decision had been illegal and irrational and ought to be quashed – Review of the same – Effect of
Tai Chin Yee v. Tong San Chan Distributors Sdn Bhd & Anor
(Su Tiang Joo JC) [2021] 3 ILR 29

Certiorari – Application for an order of certiorari to quash the IC Award – Applicant applying for the quashing of Award No. 1819 of 2019 – Whether it ought to be allowed – Factors to consider – Evidence adduced – Effect of – R1 admitting that the cheques had not been forged in this Court – Effect of
Tai Chin Yee v. Tong San Chan Distributors Sdn Bhd & Anor
(Su Tiang Joo JC) [2021] 3 ILR 29

CONTRACT OF EMPLOYMENT

Terms and conditions – Notice of termination – Trespass of project site sole ground for terminating the claimant – Whether the company had investigated the matter before taking the decision to dismiss him – Whether it had suspended him and informed him of the same – Effect of – Claimant kept in the dark in relation to the status of his employment – Whether it had constituted victimisation against him – Whether the decision to terminate him was reasonable – Whether his dismissal had been carried out with just cause and excuse
Mohd Zulkifli Mohd Jusoh v. Hyundai Engineering Malaysia Sdn Bhd
(Augustine Anthony) [2021] 3 ILR 75

DISMISSAL

Absenteeism – Whether the claimant had been absent from work and had failed to adhere to the company’s working hours – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant’s defence and explanations – Whether could be accepted – Whether his actions had constituted misconduct warranting his dismissal – Factors to consider – Whether his dismissal had been without just cause and excuse
Lim Soo Aun v. Sin Soon Hock Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2021] 3 ILR 90

Breach of company rules and policies – Dishonesty – Whether the claimant had submitted a false claim to the company through the “Refer A Friend Policy” – Factors to consider – Evidence adduced – Effect of – Whether proven by the company against him – Claimant’s explanations – Whether it had merits – Whether his actions had constituted gross misconduct – Position held by the claimant in the company – Whether he had been in breach of his fiduciary duties – Whether his dismissal had been without just cause and excuse
Lim Soo Aun v. Sin Soon Hock Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2021] 3 ILR 90

Insubordination – Whether the claimant had been disrespectful towards the Directors and had raised his voice and used vulgar words against his subordinates, thereby demoralising them and creating a disharmonious working environment – Factors to consider – Evidence adduced – Effect of – What the evidence had shown – Whether the charge had been proven against him – Whether it had warranted his dismissal
Lim Soo Aun v. Sin Soon Hock Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2021] 3 ILR 90

Insubordination – Whether the claimant had been insubordinate to the company’s instructions in relation to the Maybank loan – Factors to consider – Evidence adduced – Effect of – What the evidence had shown – Whether the charge had been proven against him – Whether it had warranted his dismissal
Lim Soo Aun v. Sin Soon Hock Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2021] 3 ILR 90

Misconduct – Whether the claimant had deleted data and the company’s records from his laptop – Factors to consider – Evidence adduced – Effect of – Claimant’s explanations – Whether could be accepted – Effect of – Whether the charge had been proven against him – Whether it had warranted his dismissal
Lim Soo Aun v. Sin Soon Hock Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2021] 3 ILR 90

Misconduct – Whether the claimant had made KES and KEO transfer their shares under duress/misrepresentation – Factors to consider – Evidence adduced – Effect of – Actions taken by KES and KEO – What it had shown – Both KES and KEO experienced Directors – Effect of – Whether the charge had been proven against him – Whether it had warranted his dismissal – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Lim Soo Aun v. Sin Soon Hock Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2021] 3 ILR 90

Misconduct – Whether the claimant had practised favouritism towards CSC in relation to the company’s loan to him – Factors to consider – Evidence adduced – Effect of – What the evidence had shown – What KES and KEO’s admissions had shown – Whether the charge had been proven against him – Whether it had warranted his dismissal
Lim Soo Aun v. Sin Soon Hock Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2021] 3 ILR 90

Misconduct – Whether the claimant had trespassed on the project site on the date in question – Factors to consider – Evidence adduced – Effect of – Whether the misconduct had been successfully proven by the company – Company’s actions towards him – What it had shown – What it should have done instead – Whether the claimant’s actions had been reasonable – Effect of – Whether the company had acted reasonably in dismissing him – Whether the company’s actions towards him had smacked of unfair labour practice – Whether dismissal with just cause and excuse – Protected Areas and Protected Places Act 1959, s. 5
Mohd Zulkifli Mohd Jusoh v. Hyundai Engineering Malaysia Sdn Bhd
(Augustine Anthony) [2021] 3 ILR 75

Misconduct – Whether the claimant had wasted the company’s money by buying new computers – Factors to consider – Evidence adduced – Effect of – Claimant’s explanations – Whether could be accepted – Effect of – Whether the charge had been proven against him – Whether it had warranted his dismissal
Lim Soo Aun v. Sin Soon Hock Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2021] 3 ILR 90

Performance – Poor performance – Whether the claimant’s performance in the company had been wanting – Factors to consider – Evidence adduced – Effect of – What the evidence had shown – Claimant given a merit and performance-based bonus five months into his employment – What it had indicated – Whether the charge had been proven against him – Whether it had warranted his dismissal
Lim Soo Aun v. Sin Soon Hock Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2021] 3 ILR 90

Probation – Probationer claimant not confirmed in her employment – Whether the decision to not confirm her had been carried out bona fide – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the School had victimised her – Whether the claimant had been someone who could be bullied – Effect of – Whether her non-confirmation of employment had been carried out with just cause and excuse
Suhaila Kentong Osman v. The Alice Smith Schools Association
(Anna Ng Fui Choo) [2021] 3 ILR 45

Retrenchment – Cessation of business – Payment of retrenchment benefits – When are such benefits payable – Whether such benefits had been designed for circumstances where the company is active and operational and where the retrenchment exercise affects only a group or some employees, undertaken for the reorganizational purposes of the company – Whether the claimants had been entitled to them – Factors to consider – Effect of
Mok Sook Lian v. PYO Travel (MY) Sdn Bhd
(Reihana Abd Razak) [2021] 3 ILR 118

Retrenchment – Cessation of business – Respondent companies suffering severe financial loss – Claimants’ employments terminated – Whether retrenchments had been carried out bona fide – Whether the respondent companies’ business operations had no longer been viable – Factors to consider – Evidence adduced – Effect of – Claimants failing to challenge the respondent companies’ audited accounts, amongst other things – Effect of – Whether there had been a genuine redundancy situation in the respondent companies – Whether the claimants had been fully aware of the reason for their terminations – Positions held by them in the respondent companies – Effect of – Claimants not given prior warning before being terminated – Effect of – Whether the claimants’ terminations had been carried out with just cause and excuse
Mok Sook Lian v. PYO Travel (MY) Sdn Bhd
(Reihana Abd Razak) [2021] 3 ILR 118

Retrenchment – Redundancy – Claimant terminated based on redundancy – Whether a genuine redundancy or surplus of labour had existed in the company – Factors to consider – Evidence adduced – Effect of – Whether it had justified the claimant’s retrenchment – Company’s actions against him – What it had shown – Whether dismissal without just cause and excuse
Joseph Lim Chien Shiuh v. Dancom TT&L Telecommunications (M) Sdn Bhd
(Augustine Anthony) [2021] 3 ILR 139

Retrenchment – Reorganisation – Claimant retrenched based on redundancy – Whether a genuine redundancy had existed in the company – Whether the company had been facing financial constraints due to the Covid-19 pandemic – Factors to consider – Evidence adduced – Effect of – Actions of the company – What it had shown – Whether the reorganisation exercise had been carried out bona fide – Effect of – Whether it had displayed unfair labour practices – Effect of – Whether dismissal without just cause or excuse
Joseph Lim Chien Shiuh v. Dancom TT&L Telecommunications (M) Sdn Bhd
(Augustine Anthony) [2021] 3 ILR 139

EMPLOYMENT LAW

Employment – Wrongful dismissal – Employee worked as bank teller – Discovery of cash shortage – Employee summarily dismissed – Whether dismissal wrongful – Whether employee caused cash shortage – Damages that could be awarded for wrongful dismissal
Malayan Banking Bhd v. Prabanah Manogaran Sultan
(Wong Hok Chong JC) [2021] 3 ILR 1

EVIDENCE

Admissibility – Notebook Computer – Whether the chain of custody, care, control and use of the said Notebook Computer, from the time it had been handed over by the claimant to COW3, until it had been given to COW1, for the purported examination, had been established – Company’s actions – Effect of
Lim Soo Aun v. Sin Soon Hock Sdn Bhd
(Sitarun Nisa Abdul Aziz) [2021] 3 ILR 90

Burden of proof – Civil matter – Employee summarily dismissed from employment – Employee commenced civil suit at Sessions Court for wrongful dismissal at common law – Burden of proof applicable
Malayan Banking Bhd v. Prabanah Manogaran Sultan
(Wong Hok Chong JC) [2021] 3 ILR 1

Standard of proof – Civil matter – Employee summarily dismissed from employment – Employee commenced civil suit at Sessions Court for wrongful dismissal at common law – Standard of proof applicable
Malayan Banking Bhd v. Prabanah Manogaran Sultan
(Wong Hok Chong JC) [2021] 3 ILR 1

INDUSTRIAL COURT

Jurisdiction – Whether the IC had the jurisdiction to hear this claim – Whether the reference had been filed within the 60-day mandatory period as provided in s. 20(1A) of the Industrial Relations Act 1967 – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, s. 20(1A)
Wong Yoon Foong v. Protech Jewel Sdn Bhd
(Gulam Muhiaddeen Abdul Aziz) [2021] 3 ILR 132

Procedure – Action – Company in liquidation – Whether the claimant had had to obtain the leave of the High Court pursuant to ss. 451(2) and/or 471(1) and (2) of the Companies Act 2016, before proceeding with the matter – Factors to consider – Evidence adduced – Effect of – Companies Act 2016, ss. 451(2), 471(1) and (2), Companies Act 1965, ss. 263(2), 226 (2) and (3) & Industrial Relations Act 1967, s. 29
Elizabeth Martina Behan v. Express Venture Sdn Bhd
(Augustine Anthony) [2021] 3 ILR 155

Remedies – Backwages – Calculation of – How determined – Factors to consider
Mohd Zulkifli Mohd Jusoh v. Hyundai Engineering Malaysia Sdn Bhd
(Augustine Anthony) [2021] 3 ILR 75

Remedies – Wrongful dismissal – Remedies available upon finding of wrongful dismissal – Whether remedies statutory creation available at Industrial Court only – Whether available under common law and at civil courts – Industrial Relations Act 1967, s. 20
Malayan Banking Bhd v. Prabanah Manogaran Sultan
(Wong Hok Chong JC) [2021] 3 ILR 1

JURISDICTION

Industrial Court – Dismissal – Constructive dismissal – Employee claiming monetary award but not reinstatement – Whether Industrial Court ceased to have jurisdiction over dispute – Threshold jurisdiction – Substantive jurisdiction – Industrial Relations Act 1967 (Revised 1976), ss. 20 & 30
Sanbos (Malaysia) Sdn Bhd v. Gan Soon Huat
(Ab Karim Ab Jalil, Nor Bee Ariffin & Ravinthran Paramaguru JJCA) [2021] 3 ILR 11

LABOUR LAW

Dismissal – Constructive dismissal – Proof – Payment of commission to employee – Rate varied by employer – Whether employee adversely affected by variation – Whether fundamental breach – Delay in terminating employment – Whether unduly long – Whether breach condoned by employee – Industrial Relations Act 1967 (Revised 1976), s. 20
Sanbos (Malaysia) Sdn Bhd v. Gan Soon Huat
(Ab Karim Ab Jalil, Nor Bee Ariffin & Ravinthran Paramaguru JJCA) [2021] 3 ILR 11

Employment – Contract of employment – Terms and conditions – Commission – Payment of commission to employee – Rate varied by employer – Whether fundamental breach – Whether going to root of contract of employment – Constructive dismissal – Whether justified
Sanbos (Malaysia) Sdn Bhd v. Gan Soon Huat
(Ab Karim Ab Jalil, Nor Bee Ariffin & Ravinthran Paramaguru JJCA) [2021] 3 ILR 11

Industrial Court – Claim for backwages – Whether post dismissal earnings need to be taken into account to reduce the monetary compensation awarded – Factors to consider – Effect of – Charges against the applicant, involving breach of trust, later admitted to be false – Effect of
Tai Chin Yee v. Tong San Chan Distributors Sdn Bhd & Anor
(Su Tiang Joo JC) [2021] 3 ILR 29