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LATEST CASES (ILR Issue 9 of 2021)
SUBJECT INDEX
ADMINISTRATIVE LAW
Judicial review – Application for – Judicial review against dismissal from post – Applicant served with two show cause letters one after another – First show cause letter cancelled – Applicant found guilty of charges borne in second show cause letter and dismissed from post – Whether there was double jeopardy in consequent to two show cause letters – Whether there was breach of natural justice – Whether there was serious flaw in decision-making process – Whether there was procedural impropriety – Whether there was statutory non-compliance – Whether decision of disciplinary authority proportionate and reasonable – Public Officers (Conduct and Discipline) Regulations 1993, regs. 37 & 38(g) – Public Services Disciplinary Board Regulation 1993, regs. 15(3) & (4)
Mohamad Faisal Anudin Azmi v. Dato’ Mustafa Hj Ibrahim, Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No. 1) Jabatan Imigresen Malaysia, Putrajaya & Ors
(Ahmad Murad Abdul Aziz JC) [2021] 3 ILR 353  
Judicial review – Certiorari – Whether Minister wrong in law to refer dispute to Industrial Court – Workman working as security guard dismissed by USA Embassy (‘USA’) – Whether there was undue delay on Minister’s part in making reference – Whether long lapse of time caused serious prejudice to USA – Whether USA’s decision to dismissal workman made in its governmental function as sovereign state – Whether sovereign immunity applied – Whether issues ought to be determined by Industrial Court – Whether judicial review application premature – Whether ran contrary to scheme of Industrial Relations Act 1967 and basic principles of judicial review – Whether Minister’s reference tainted with illegality, irrationality or procedural impropriety
Subramaniam Letchimanan v. The United States Of America & Another Appeal
(Kamaludin Md Said, Lee Swee Seng & Gunalan Muniandy JJCA) [2021] 3 ILR 369
DISMISSAL
Absenteeism – Whether the claimant had been absent without leave – Whether the charge had successfully been proven by the respondent companies against him – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – Whether the company had condoned his actions – Whether it had justified his dismissal – Whether dismissal without just cause and excuse
Asriel Jason Arul A Arulpakiam v. S P Setia Bhd (Eco Meridian Sdn Bhd)
(Domnic Selvam S Gnanapragasam) [2021] 3 ILR 430
Attendance – Lateness – Whether the claimant had been late to work on numerous occasions – Whether the charge had successfully been proven by the respondent companies against him – Factors to consider – Evidence adduced – Effect of – Whether the company had condoned his actions – Whether it had justified his dismissal – Whether dismissal without just cause and excuse
Asriel Jason Arul A Arulpakiam v. S P Setia Bhd (Eco Meridian Sdn Bhd)
(Domnic Selvam S Gnanapragasam) [2021] 3 ILR 430
Breach of company rules and policies – Medical leave – Failure to submit MCs – Whether the charge had successfully been proven by the respondent companies against him – Factors to consider – Evidence adduced – Effect of – Whether the company had condoned his actions – Whether it had justified his dismissal – Whether dismissal without just cause and excuse
Asriel Jason Arul A Arulpakiam v. S P Setia Bhd (Eco Meridian Sdn Bhd)
(Domnic Selvam S Gnanapragasam) [2021] 3 ILR 430
Breach of company rules and policies – Theft – Whether the claimant had misappropriated the Sum – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the misconduct had been proven against him – Bank’s actions – What it had shown – Whether it had constituted serious misconduct – His explanations, conduct and defence – Whether substantiated by the evidence – Whether could be accepted – Whether it had justified his dismissal – Claimant serving the bank for 35 years – Effect of – Whether dismissal without just cause and excuse
Jingan Anak Aron v. AmBank (M) Berhad
(Ani Ak Solep) [2021] 3 ILR 469
Misconduct – Claimant failing to report substance abuse by one of the employees of the company and instead trying to cover it up – Whether the charges had been proven against her – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether it had constituted serious misconduct – Whether the company had acted reasonably in dismissing her – Whether dismissal with just cause and excuse
Tamilselvi Veloo v. Huhtamaki Foodservice Malaysia Sdn Bhd
(Domnic Selvam Gnanapragasam) [2021] 3 ILR 414
Misconduct – Whether the claimant had been involved in corrupt and fraudulent activities – Factors to consider – Evidence adduced – Effect of – Claimant’s explanations and defence – Whether could be accepted – Effect of – Whether the charge had been proven against him – Whether it had warranted his dismissal
Shaharul Miza Muhamad v. Serba Dinamik International Ltd
(Anna Ng Fui Choo) [2021] 3 ILR 540
Notice of termination – Reasons for his dismissal in his termination letter different from the charge in the show cause letter and at the DI – Effect of – Whether the charge had been proven against him – Claimant’s defence – Company’s actions towards him – What it had shown – Whether his dismissal had been warranted – Whether dismissal without just cause or excuse
Shaharul Miza Muhamad v. Serba Dinamik International Ltd
(Anna Ng Fui Choo) [2021] 3 ILR 540
DOMESTIC INQUIRY
Absence of – Whether fatal to the bank’s case – Factors to consider – Whether the claimant had been given a reasonable opportunity to be heard – Effect of
Jingan Anak Aron v. AmBank (M) Berhad
(Ani Ak Solep) [2021] 3 ILR 469
Charges – Whether the charge brought against the claimant had been defective for want of material particulars – Factors to consider – Evidence adduced – Effect of
Shaharul Miza Muhamad v. Serba Dinamik International Ltd
(Anna Ng Fui Choo) [2021] 3 ILR 540
Procedural impropriety – Chairman of the DI involved in the investigation against the claimant – Whether there had been a real likelihood of bias against the claimant – Factors to consider – Evidence adduced – Effect of
Shaharul Miza Muhamad v. Serba Dinamik International Ltd
(Anna Ng Fui Choo) [2021] 3 ILR 540
Procedural impropriety – Whether the DI had been more of a question and answer session, with the panel members participating actively – Factors to consider – Evidence adduced – Effect of – Whether it had been a fishing expedition – Whether valid
Shaharul Miza Muhamad v. Serba Dinamik International Ltd
(Anna Ng Fui Choo) [2021] 3 ILR 540
EVIDENCE
Documentary evidence – DI Notes of proceedings – Whether it ought to be accepted into evidence – Factors to consider – Effect of
Asriel Jason Arul A Arulpakiam v. S P Setia Bhd (Eco Meridian Sdn Bhd)
(Domnic Selvam S Gnanapragasam) [2021] 3 ILR 430
Documentary evidence – Findings of the DI – Whether could be accepted – Factors to consider – Evidence adduced – Effect of
Shaharul Miza Muhamad v. Serba Dinamik International Ltd
(Anna Ng Fui Choo) [2021] 3 ILR 540
Documentary evidence – Notes of the DI – Whether it had been accurate and reliable – Factors to consider – Evidence adduced – Effect of – Whether it had been safe to rely on
Tamilselvi Veloo v. Huhtamaki Foodservice Malaysia Sdn Bhd
(Domnic Selvam Gnanapragasam) [2021] 3 ILR 414
Documentary evidence – Whether the claimant had been workman within the definition of the Industrial Relations Act – Factors to consider – Evidence adduced – Effect of – Evaluation of – What it had shown – What the intention of the parties had been – Conduct and actions of the company towards her – What it had shown – Whether the Agreement had indicated a contract for service as opposed to a contract of service – Effect of – Industrial Relations Act 1967, s. 2
Lim Bee Hoon v. Eduseeds (M) Sdn Bhd
(Paramalingam J Doraisamy) [2021] 3 ILR 506
INDUSTRIAL COURT
Jurisdiction – Applicant claiming for deductions of contractual payments from the Respondent – Whether this Court had been the proper forum to determine the issue – Factors to consider – Evidence adduced – Effect of – What the said Award had stipulated and the intention of the Learned Chairman
Zainol Rashid Norddin v. Malaysia Building Society Berhad
(Noor Ruwena Mohd Nurdin) [2021] 3 ILR 553
Procedure – Parties – Disjoinder – Whether the 1st respondent had been liable – Factors to consider – Evidence adduced – Effect of
Asriel Jason Arul A Arulpakiam v. S P Setia Bhd (Eco Meridian Sdn Bhd)
(Domnic Selvam S Gnanapragasam) [2021] 3 ILR 430
Remedies – Punishment – Proportionality of – Claimant guilty of misconduct – Whether the punishment of dismissal meted out by the company on him had been too harsh – Factors to consider – Evidence adduced – Effect of
Asriel Jason Arul A Arulpakiam v. S P Setia Bhd (Eco Meridian Sdn Bhd)
(Domnic Selvam S Gnanapragasam) [2021] 3 ILR 430
Remedies – Punishment – Whether had been too harsh under the circumstances – Factors to consider – Evidence adduced – Effect of
Jingan Anak Aron v. AmBank (M) Berhad
(Ani Ak Solep) [2021] 3 ILR 469
INTERPRETATION
Award – Whether the phrase “less statutory deductions (if any)” had attracted EPF contributions and income tax payments – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, ss. 33(1) and Employees Provident Fund Act 1991, s. 2
Zainol Rashid Norddin v. Malaysia Building Society Berhad
(Noor Ruwena Mohd Nurdin) [2021] 3 ILR 553
Award – Whether the phrase “less statutory deductions (if any)” had attracted Staff Provident Fund (SPF) contributions, Retirement Gratuity, Service Gratuity and Subordinate Staff Gratuity payable by the Respondent – Factors to consider – Evidence adduced – Effect of – Whether this Court had been the proper forum to determine the issue – Industrial Relations Act 1967, ss. 33(1) and Employees Provident Fund Act 1991, s. 2
Zainol Rashid Norddin v. Malaysia Building Society Berhad
(Noor Ruwena Mohd Nurdin) [2021] 3 ILR 553
LABOUR LAW
Employment – Dismissal – Workman working as security guard dismissed by USA Embassy (‘USA’) – Whether USA’s decision to dismissal workman made in its governmental function as sovereign state – Whether sovereign immunity applied – Whether issues ought to be determined by Industrial Court – Industrial Relations Act 1967, s. 29(g)
Subramaniam Letchimanan v. The United States Of America & Another Appeal
(Kamaludin Md Said, Lee Swee Seng & Gunalan Muniandy JJCA) [2021] 3 ILR 369
Industrial Court – Jurisdiction – Workman working as security guard dismissed by USA Embassy (‘USA’) – Whether USA’s decision to dismissal workman made in its governmental function as sovereign state – Whether sovereign immunity applied – Whether issues ought to be determined by Industrial Court – Industrial Relations Act 1967, s. 29(g)
Subramaniam Letchimanan v. The United States Of America & Another Appeal
(Kamaludin Md Said, Lee Swee Seng & Gunalan Muniandy JJCA) [2021] 3 ILR 369
WORDS & PHRASES
“less statutory deductions (if any)” – What deductions it attracted – Factors to consider – Evidence adduced – Effect of
Zainol Rashid Norddin v. Malaysia Building Society Berhad
(Noor Ruwena Mohd Nurdin) [2021] 3 ILR 553
INDEKS PERKARA
KETERANGAN
Bantahan awal – Sama ada Pengadu-Pengadu mempunyai locus standi untuk memfailkan aduan ini – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada bantahan awal Syarikat harus dibenarkan – Akta Perhubungan Perusahaan 1967, ss. 17(1)(b) dan s. 56(1)
Airi Laxman Singh lwn. Goodyear Malaysia Berhad
(Rasidah Chik) [2021] 3 ILR 515
KETIDAKPATUHAN
Perjanjian Kolektif – Sama ada Pengadu-Pengadu, yang merupakan pekerja warganegara asing, terjatuh di bawah skop Perjanjian Kolektif – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Prosedur yang terpakai untuk pekerja-pekerja yang tidak menjadi ahli kesatuan untuk mengemukakan aduan ketidakpatuhan Perjanjian Kolektif – Kesannya – Pendirian yang diambil oleh Syarikat di dalam plidingnya – Sama ada tepat – Sama ada Pengadu-Pengadu mempunyai locus standi untuk memfailkan aduan ini – Akta Perhubungan Perusahaan 1967, ss. 17(1)(b) dan s. 56(1)
Airi Laxman Singh lwn. Goodyear Malaysia Berhad
(Rasidah Chik) [2021] 3 ILR 515
Perjanjian Kolektif – Sama ada Perjanjian Kolektif tersebut merangkumi Pengadu-Pengadu – Penilaian artikel-artikel di dalam Perjanjian Kolektif – Sama ada mereka layak untuk menerima faedah-faedah yang diperuntukkan di bawahnya – Kesannya – Kontrak Perkhidmatan Pengadu-Pengadu tidak mengandungi apa-apa klausa berkaitan dengan pembayaran elaun syif, bonus tahunan atau pelarasan gaji – Kesannya – Syarikat mengakui bahawa ianya tidak mematuhi Perjanjian Kolektif – Sama ada wujud diskriminasi, dari segi undang-undang, terhadap pekerja-pekerja yang tidak menjadi ahli kesatuan, seorang pelatih (apprentice), pekerja percubaan, pekerja yang telah disahkan, pekerja warga asing atau mereka yang diambil bekerja di bawah satu kontrak pekerjaan untuk tempoh tetap – Sama ada Syarikat gagal untuk mematuhi artikel di dalam PK tersebut – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Akta Perhubungan Perusahaan 1967, ss. 17(1) dan 30(7)
Airi Laxman Singh lwn. Goodyear Malaysia Berhad
(Rasidah Chik) [2021] 3 ILR 515
MAHKAMAH PERUSAHAAN
Bidang kuasa – Sama ada Mahkamah Perusahaan, dalam menentukan sama ada terdapat ketidakpatuhan award atau perjanjian kolektif, mempunyai kuasa untuk membuat interpretasi berkaitan dengan aduan yang dibuat – Faktor-faktor yang harus diambil kira – Penilaian peruntukan undang-undang – Kesannya – Akta Perhubungan Perusahaan 1967, ss. 56(1), (2A)
Airi Laxman Singh lwn. Goodyear Malaysia Berhad
(Rasidah Chik) [2021] 3 ILR 515
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