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LATEST CASES (ILR Issue 3 of 2022) |
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SUBJECT INDEX CONTRACT OF EMPLOYMENT Notice of termination – Absence of – Whether the claimant had been
terminated on the spot without a termination letter – Factors to consider – Evidence adduced – Effect of – His actions – What it had shown – Whether
CLW2’s version of events and testimony had supported his contentions – Company’s version as against the claimant’s – Which version had been more
believable – Evaluation of the evidence – Effect of – Whether the claimant
had been dismissed – Whether dismissal without just cause and excuse Notice of termination – Forced resignation – Claimant asked to resubmit her
3rd resignation letter – Reasons for the same – Whether by such instructions
she had been forced to resign – Factors to consider – Evidence adduced – Effect of – Claimant’s actions and requests to the company – What it had
indicated – Whether she had made out her case against the company Terms and conditions – Resignation – Whether the claimant had been forced
to resign – Factors to consider – Evidence adduced – Effect of – Claimant’s
actions – What it had shown – Whether she had resigned voluntarily – Claimant being asked to leave the company’s premises – Reasons for the
same – Whether it had supported her forced resignation claim Terms and conditions – Resignation – Whether the claimant had resigned on
her own accord – Factors to consider – Evidence adduced – Effect of – What
her actions had shown Terms and conditions – Validity of – Claimant signing a Letter of Offer (‘LO’) with the company – Status of a Letter of Offer – Whether the
execution of the Employment Contract had been vital to seal the relationship
of employer-employee – Factors to consider – Evidence adduced – Effect of – Claimant refusing to sign the Employment Contract – Reasons for the same – Whether reasonable – What the intentions of the parties had been at the
material time – Effect of – Whether the LO had constituted a binding
agreement between the parties – Industrial Relations Act 1967, s. 2 DISMISSAL Abandonment – Whether the claimant had failed to turn up for work
without the company’s consent – Effect of – Whether he had abandoned his
employment with it – Whether he had been in breach of his contract of
service Attendance – Lateness – Whether the claimant had been late in coming into
the office – Factors to consider – Evidence adduced – Effect of – Claimant
admitting to receiving verbal warnings on it – Whether the charge had
successfully been proven against her – Whether it had justified her dismissal – Whether her dismissal had been with just cause and excuse Breach of company rules and policies – Bribery – Acceptance of – Whether
the claimant had accepted the gift hampers in breach of the company’s No
Gift Policy and taken them home without management’s approval – Factors
to consider – Evidence adduced – Effect of – Whether the charge(s) had been
successfully proven by the company against him – Claimant’s defence – Whether could be accepted – Claimant aware of the policy – Effect of – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5) Constructive dismissal – Demotion – Whether the claimant had been
demoted – Factors to consider – Evidence adduced – Effect of – Whether she
had satisfied the contract test in claiming constructive dismissal – Whether
dismissal without just cause and excuse Constructive dismissal – Humiliation – Whether the claimant had been
shouted at and scolded in front of the company’s staff and customers – Evidence adduced – Effect of – Whether proven by her successfully – Whether her constructive dismissal claim ought to be allowed Constructive dismissal – Job scope – Whether her job scope had grown
exponentially with her transfers – Factors to consider – Evidence adduced – Effect of – Whether it had justified her receiving an increase in salary – Claimant’s performance in her designations – Effect of – What kind of
employee she had been – Company’s actions towards her – What it had shown – Whether it had amounted to a fundamental breach of her contract
of employment – Whether it had justified her walking out claiming
constructive dismissal Constructive dismissal – Performance – Claimant put on a PIP – Whether
she had been placed on it with justification – Whether the company’s actions
of delaying her appraisals had been a fundamental breach that had gone to
the root of her contract of employment – Factors to consider – Evidence
adduced – Effect of – Company sending her a reinstatement notice but
subsequently withdrawing it – Whether it had justified her walking out
claiming constructive dismissal – Whether dismissal without just cause and
excuse Constructive dismissal – Salary – Claimant’s salary reduced by 35% – Whether it had been carried out by the company unilaterally – Factors to
consider – Evidence adduced – Effect of – Whether there had been undue
delay on her part in taking action – What she should have done – Whether
it had justified her walking out of her employment and claiming constructive
dismissal Constructive dismissal – Transfer – Claimant transferred twice within a span
of 9 months – Reasons for the same – Whether the transfer had amounted
to a fundamental breach of her contract of employment – Factors to consider – Evidence adduced – Evaluation of – Effect of – Perusal of her Letter of
Appointment – Effect of – Whether it had justified her walking out of her
employment and claiming constructive dismissal Insubordination – Whether the company had successfully made out the
charge against her – Company failing to call an important witness – Whether
it had made this charge a non-issue Misconduct – Claimant neglecting to keep the originals or copies of letters
of appointments, signed on behalf of the company – Whether it had
amounted to serious misconduct – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – Whether it had justified
his dismissal – Whether dismissal without just cause and excuse Misconduct – Whether the claimant, by signing the Letter of Appointment
with KW-JWEE Marketing Sdn Bhd, had acted beyond his scope of
authority – Factors to consider – Evidence adduced – Effect of – His
explanations – Whether could be accepted – Whether he had committed
serious misconduct justifying his dismissal Performance – Poor performance – Claimant failing to achieve the fixed
target demo set by the company – Such a requirement absent in her letter of
appointment and/or employment contract – Effect of – Whether she had
been bound by the target demo set – Factors to consider – Evidence adduced – Effect of – Claimant issued warning letters on it – Whether the company
had successfully proven poor performance against her – Whether it had
justified her dismissal – Whether her dismissal had been with just cause and
excuse Probation – Whether the claimant had been a probationer at the time of his
dismissal – Factors to consider – Evidence adduced – Evaluation of – Effect
of – Conduct of the parties – What it had shown Retrenchment – Redundancy – Claimants applying for VSS – Whether it had
been done voluntarily – Factors to consider – Evidence adduced – Evaluation of – Whether they had executed the VSS under duress and
coercion – What their conduct had shown – Effect of – Whether the
claimants had been dismissed by the First Company – Whether dismissals
without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) &
30(5) Retrenchment – Redundancy – Difference between a MSS and VSS – Effect
of – Rights of the parties in relation thereto DOMESTIC INQUIRY Procedural impropriety – Whether there had been miscarriages of justice in
the way it had been carried out – Factors to consider – Evidence adduced – Effect of – Whether fatal to the company’s case – Whether there had been
a lack of procedural fairness in the way the company had inquired and
investigated the matter – Whether it had made her dismissal unjust despite
her being guilty of the charges – Effect of EVIDENCE Burden of proof – Dismissal in dispute – Who bore the burden to prove that
there had been a dismissal Documentary evidence – Determination of who the claimants’ employer had
been – Whether they had been employed by the Second Company – Factors
to consider – Evidence adduced – Effect of Documentary evidence – Whether the claimant had successfully established
that he had been dismissed – Factors to consider – Evidence adduced – Effect
of – Whether dismissal without just cause and excuse Witness – Conflicting evidence – Claimant’s evidence in SOC contradicting
his witness statement and his testimony in Court – Effect of Witness – Credibility – Whether CLW2 had been a reliable and credible
witness – Factors to consider – Evidence adduced – Effect of INDUSTRIAL COURT Jurisdiction – Whether the Industrial Court had had the threshold
jurisdiction to hear the matter – Factors to consider – Evidence adduced – Effect of – Whether the respondent company had been a government agency
under the Industrial Relations Act 1967 – Evaluation of the evidence – Effect
of – Industrial Relations Act 1967, ss. 29(fa), 29(g) & 52(1) Procedure – Action – Who starts the case – Dismissal in dispute INDEKS PERKARA KETERANGAN Keterangan dokumentari – Sama ada YM merupakan seorang pekerja
syarikat – Faktor-faktor yang harus diambil kira – Keterangan yang
dikemukakan – Kesannya – Keterangan YM – Sama ada beliau menganggap
dirinya sebagai seorang pekerja syarikat – Sama ada YM telah dibuang kerja
oleh syarikat – Sama ada pembuangan kerjanya telah dilakukan secara adil
dan bersebab – Akta Perhubungan Perusahaan 1967, s. 2 MAHKAMAH PERUSAHAAN Prosedur – Tindakan – Menghidupkan semula kes – Sama ada permohonan
YM yang dibuat 7 bulan dari tarikh Award pembatalan dan 5 bulan selepas
tamat tempoh kebenaran untuk menghidupkan semula kes, harus dibenarkan – Faktor-faktor yang harus diambil – Penilaian keterangan – Kesannya – Akta Perhubungan Perusahaan, ss. 29(fa), (g) dan 30(5) PEMBUANGAN KERJA Penghematan – YM diberhentikan kerja atas alasan penghematan – Sama
ada tindakan syarikat responden telah dilakukan secara bona fide – Faktor-faktor
yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada syarikat responden mengalami masalah kewangan – Sama ada
pemberhentian kerja YM atas alasan penghematan telah dilakukan secara adil
dan bersebab Penghematan – YM diberhentikan kerja atas alasan pengurangan pekerja – Sama ada pihak syarikat telah bertindak secara bona fide – Faktor-faktor yang
harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada
syarikat mengalami masalah kewangan – Sama ada pemberhentian kerja YM
telah dilakukan secara adil dan bersebab |
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