LATEST CASES (ILR Issue 8 of 2021)

SUBJECT INDEX

CIVIL PROCEDURE

Jurisdiction – High Court – Respondent's application to set aside the Petitioner's winding-up Petition – Whether an abuse of process – Factors to consider – Effect of
Cheah Aei Ling v. HKS Infra & Earthwork Sdn Bhd
(Nadzarin Wok Nordin JC) [2021] 3 ILR 161

COMPANIES AND CORPORATIONS

Winding-up – Advertisement of Petition – Whether there had been bad faith on the Petitioner's part in bringing the Petition – Factors to consider – Evidence adduced – Effect of – Whether the Petition had been advertised in compliance with the rules – Effect of – Whether the defect had been curable – Companies (Winding-Up) Rules 1972, rr. 24 and 194
Cheah Aei Ling v. HKS Infra & Earthwork Sdn Bhd
(Nadzarin Wok Nordin JC) [2021] 3 ILR 161

Winding-up – Disputed debts – Respondent disputing the Award and compensation – Whether the Petitioner had been a creditor under the Companies Act 2016 – Factors to consider – Evidence adduced – Effect of
Cheah Aei Ling v. HKS Infra & Earthwork Sdn Bhd
(Nadzarin Wok Nordin JC) [2021] 3 ILR 161

Winding-up – Inability to pay debts – Respondent disputing the Award and filing a judicial review application against it – Whether the respondent had been unable to pay its debts – Factors to consider – Evidence adduced – Effect of – Whether the Petition had been premature and bad in law
Cheah Aei Ling v. HKS Infra & Earthwork Sdn Bhd
(Nadzarin Wok Nordin JC) [2021] 3 ILR 161

Winding-up – Locus standi – Whether the Petitioner had had the locus standi to commence the Petition based on the strength of the Award – Factors to consider – Evidence adduced – Effect of
Cheah Aei Ling v. HKS Infra & Earthwork Sdn Bhd
(Nadzarin Wok Nordin JC) [2021] 3 ILR 161

Winding-up – Respondent's application to set aside the Winding-up Petition – Whether it ought to be allowed – Factors to consider – Evidence adduced – Effect of – Whether the Petition had been 'obviously unsustainable' in the circumstances
Cheah Aei Ling v. HKS Infra & Earthwork Sdn Bhd
(Nadzarin Wok Nordin JC) [2021] 3 ILR 161

CONTRACT OF EMPLOYMENT

Terms and conditions – Notice of termination – Whether the bank's decision to take her off the training programme should be interfered with – Factors to consider – Effect of – Whether the claimant had had behavioural and performance expectation issues – Whether there had been a necessity to give her prior written warning about her performance or behaviour
Yong Pui Yee v. CIMB Investment Bank Berhad
(Paramalingam J Doraisamy) [2021] 3 ILR 216

Terms and conditions – Resignation – Forced resignation – Whether the claimant had been forced to resign – Factors to consider – Evidence adduced – Effect of – Position held by the claimant – What he had been deemed to know – Claimant's actions – What it had shown – What he should have done – Whether he had been barred entry and access into the office – Whether it had led to him being forced to resign – Whether he had resigned voluntarily
Navein Palani v. 7-Eleven Malaysia Sdn Bhd
(Reihana Abd Razak) [2021] 3 ILR 333

Terms and conditions – Resignation – Whether the claimant had been forced or induced to resign – Factors to consider – Evidence adduced – Effect of – Claimant's actions post-resignation – What it had shown – Whether he had resigned voluntarily
Azffanizam Abd Halim v. Prince Court Medical Centre Sdn Bhd
(Augustine Anthony) [2021] 3 ILR 238

Type of – Whether the claimant's Employment Contract with the bank had been a genuine fixed-term contract – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the Employment Contract had come to an end due to the effluxion of time – Effect of – Whether she had been dismissed – Whether dismissal without just cause and excuse – Whether her claim under the Industrial Relations Act 1967 had been correctly brought – Industrial Relations Act 1967, s. 20(1)
Yong Pui Yee v. CIMB Investment Bank Berhad
(Paramalingam J Doraisamy) [2021] 3 ILR 216

DISMISSAL

Breach of company rules and policies – Negligence – Gross negligence – Whether the claimant had been grossly negligent for failing to ensure that the Outstanding Amount Report had been prepared on a daily basis – Factors to consider – Evidence adduced – Effect of – Whether he had been aware of such a requirement – Claimant holding a senior position in the company – Whether by his failure aforesaid, he had failed to act in the company's best interests – Company suffering financial loss as a result – Effect of – Whether it had justified his dismissal – Whether his dismissal had been without just cause and excuse
Tobias Lim Chin Hong v. Measat Broadcast Network Systems Sdn Bhd
(Reihana Abd Razak) [2021] 3 ILR 252

Breach of company rules and policies – Negligence – Gross negligence – Whether the claimant had failed to ensure that the clauses in the IFSP Delivery SOW had been adhered to and reviewed by the Legal Department – Factors to consider – Evidence adduced – Evaluation of – Effect of – Defence of ignorance – Whether supported by the evidence – Whether he had been responsible for the IDEx operations – Claimant's position in the company – Effect of – Whether he could shift responsibility – Whether the charges had been successfully proven by the company against him – Whether it had justified his dismissal – Whether he had been made a scapegoat – Effect of – Whether the company had condoned his actions – Factors to consider – Whether his dismissal had been carried out with just cause and excuse
Tobias Lim Chin Hong v. Measat Broadcast Network Systems Sdn Bhd
(Reihana Abd Razak) [2021] 3 ILR 252

Constructive dismissal – Benefits – Claimant moved from a private room and asked to operate at an open work station – Reasons for the same – Whether she had been victimised by such a directive – Factors to consider – Evidence adduced – Effect of – Whether it had constituted a fundamental breach of her contract of employment
Azura Norden v. Small Medium Enterprise Development Bank Malaysia Berhad
(Syed Noh Said Nazir) [2021] 3 ILR 297

Constructive dismissal – Change in job function – Whether her re-designation to Head of Section had been a demotion – Factors to consider – Evidence adduced – Effect of – Whether feelings of embarrassment, humiliation or disgrace are grounds for claiming constructive dismissal – No change to her workload – What it had indicated – Effect of – Claimant only walking out a month later – What it had shown
Azura Norden v. Small Medium Enterprise Development Bank Malaysia Berhad
(Syed Noh Said Nazir) [2021] 3 ILR 297

Constructive dismissal – Change in status – Claimant who previously excelled in her performance put on a Performance Improvement Plan – Reasons for the same – Whether she had been victimised by such an action – Factors to consider – Evidence adduced – Effect of – Whether the bank's assessment of her and/or her dissatisfaction with it had been a breach that had gone to the root of her contract of employment – Whether the bank had acted reasonably – Whether it had justified her walking out of her employment and claiming constructive dismissal
Azura Norden v. Small Medium Enterprise Development Bank Malaysia Berhad
(Syed Noh Said Nazir) [2021] 3 ILR 297

Constructive dismissal – Status – Change in her reporting line – Whether it had constituted a fundamental breach of her contract of employment – Whether an employee has a lien to a reporting line – Effect of – Whether it had justified her walking out of her employment and claiming constructive dismissal – Whether her claim for constructive dismissal ought to be allowed
Azura Norden v. Small Medium Enterprise Development Bank Malaysia Berhad
(Syed Noh Said Nazir) [2021] 3 ILR 297

Constructive dismissal – Status – Claimant re-designated from Head of Department to Head of Section due to the restructuring of her department – Whether it had been carried out bona fide – Factors to consider – Evidence adduced – Effect of – Whether it had been carried out to drive her out of her employment – Effect of – Whether her claim for constructive dismissal ought to be allowed
Azura Norden v. Small Medium Enterprise Development Bank Malaysia Berhad
(Syed Noh Said Nazir) [2021] 3 ILR 297

Constructive dismissal – Status – Removal of the claimant's reporting subordinate – Whether she had had any contractual entitlement to subordinate staff – Factors to consider – Evidence adduced – Effect of – Whether it had constituted a fundamental breach of her contract of employment – Whether her claim for constructive dismissal ought to be allowed
Azura Norden v. Small Medium Enterprise Development Bank Malaysia Berhad
(Syed Noh Said Nazir) [2021] 3 ILR 297

Notice of termination – Forced resignation – Whether the claimant had been forced to resign – Factors to consider – Evidence adduced – Effect of – Whether successfully proven by him – Effect of – Whether he had been dismissed – Whether dismissal with just cause and excuse
Azffanizam Abd Halim v. Prince Court Medical Centre Sdn Bhd
(Augustine Anthony) [2021] 3 ILR 238

Notice of termination – Forced resignation – Whether the claimant had been forced to resign – Factors to consider – Evidence adduced – Effect of – Whether the evidence had supported his contention of forced resignation – Effect of – Whether there had been a dismissal – Whether dismissal without just cause and excuse
Navein Palani v. 7-Eleven Malaysia Sdn Bhd
(Reihana Abd Razak) [2021] 3 ILR 333

Retrenchment – Redundancy – Claimant's role in the company – Whether held by anyone else – Whether LIFO had been applicable – Factors to consider – Evidence adduced – Effect of
Premalata Vincent Ramesh v. Nestle Products Sdn Bhd
(Augustine Anthony) [2021] 3 ILR 277

Retrenchment – Redundancy – Whether the claimant's role had been redundant – Factors to consider – Evidence adduced – Effect of – Whether she had been victimised by the company – What her conduct pre and post-redundancy notice had shown – Effect of – Whether the company had exercised its managerial prerogative in a bona fide manner – Effect of – Whether dismissal without just cause and excuse
Premalata Vincent Ramesh v. Nestle Products Sdn Bhd
(Augustine Anthony) [2021] 3 ILR 277

Retrenchment – Redundancy – Whether the company had acted in compliance with the Code of Conduct for Industrial Harmony – Factors to consider – Evidence adduced – Effect of
Premalata Vincent Ramesh v. Nestle Products Sdn Bhd
(Augustine Anthony) [2021] 3 ILR 277

LABOUR LAW

Industrial Court – Award – When enforceable – Factors to consider – Effect of – Steps that need to be taken to make it enforceable – Whether the Petitioner's Award here had been enforceable – Industrial Relations Act 1967, s. 56
Cheah Aei Ling v. HKS Infra & Earthwork Sdn Bhd
(Nadzarin Wok Nordin JC) [2021] 3 ILR 161

Industrial Court – Dismissal – Whether lawful – Employee was President of National Union of Flight Attendants Malaysia ('NUFAM') – Dismissal on ground of misconduct for issuing press statement against employer – Whether there was trade dispute between NUFAM and employer – Whether procedure for settlement of dispute exhausted – Whether employee breached implied duty and express regulations of employer – Whether membership in union immunised employee from dismissal – Whether immunity only in relation to tortious acts – Trade Unions Act 1959, s. 22(1)
Malaysian Airline System Bhd v. Ismail Nasaruddin Abdul Wahab
(Hanipah Farikullah, Lee Heng Cheong & Gunalan Muniandy JJCA) [2021] 3 ILR 172

INDEKS PERKARA

KETIDAKPATUHAN

Award – Award No. 1628 tahun 2019 gagal dipatuhi oleh pihak hotel – Sama ada terdapat keadaan khas yang tidak mewajibkannya mematuhi Award tersebut – Kewujudan keadaan khas gagal diplidkan oleh pihak hotel – Kesannya – Sama ada alasan tersebut dapat diterima – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada permohonan kesatuan harus dibenarkan – Akta Perhubungan Perusahaan 1967, s. 56(1)
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran Semenanjung Malaysia lwn. Ramada Plaza Melaka (MTB Realty Sdn Bhd)
(Rasidah Chik) [2021] 3 ILR 343

Perjanjian Kolektif – Sama ada pihak hotel telah gagal mematuhi art. 11 Perjanjian Kolektif tersebut berkenaan dengan pembayaran bonus pro-rata kepada semua pekerjanya – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Pihak hotel memberhentikan semua pekerja-pekerjanya sewaktu PKP kerana mengalami kesan negatif kepada perniagaannya – Kesannya – Sama ada permohonan kesatuan harus dibenarkan – Akta Perhubungan Perusahaan 1967, s. 56(1)
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar Dan Restoran Semenanjung Malaysia lwn. Ramada Plaza Melaka (MTB Realty Sdn Bhd)
(Rasidah Chik) [2021] 3 ILR 343

MAHKAMAH PERUSAHAAN

Prosedur – Tindakan – Locus standi – Sama ada kesatuan mempunyai locus standi untuk mewakili pekerja dalam tindakan ini – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Akta Perhubungan Perusahaan, ss. 9, 13, 26(2) dan 29(fa)
Kesatuan Sekerja Pembuatan Barangan Galian Bukan Logam lwn. Lhoist (Malaysia) Sdn Bhd
(Mohd Zulbahrin Zainuddin) [2021] 3 ILR 326