SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review – Dismissal – Challenge by public servant against decision of Public Services Commission – Public servant charged and found guilty by Public Services Commission for absence from duty, failing to register movements in/or out of office and coming in late for duty to office without leave or without reasonable cause – Public servant dismissed from service – Whether charges against public servant defective – Whether there was requirement for prior internal investigation before public servant was charged and disciplinary action taken – Whether punishment meted out disproportionate and too severe
Sam Maark Verak v. Dato' Zainal Abidin Ahmad & Ors
(Hanipah Farikullah, Lee Swee Seng & Darryl Goon Siew Chye JJCA) [2022] 2 ILR 1

CONTRACT OF EMPLOYMENT

Terms and conditions – Notice of termination – Company terminating the claimant based solely on clause in his fixed-term contract which stated “Notis Penamatan – tertakluk kepada arahan Kerajaan Negeri Melaka” – Whether it had constituted a termination simpliciter – Whether it had been unlawful – Position of termination simpliciter in Malaysian industrial jurisprudence – Effect of – Whether he had been dismissed with just cause and excuse
Zailan Hashim v. Maim Holdings Berhad
(Augustine Anthony) [2022] 2 ILR 150

DISMISSAL

Attendance – Lateness – Whether the claimant had been tardy in attending work – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant given warning letters but unwilling and/or failing to improve – What it had shown – Whether it had been due to her pregnancy – Factors to consider – Effect of – Whether it had justified her dismissal – Employment Act 1955, Part IX
Nor Hafizah Yahaya v. Shukor Baljit & Partners
(Teoh Chin Chong) [2022] 2 ILR 36

Breach of company rules and policies – Medical leave – Whether the claimant had taken excessive medical leave – Factors to consider – Evidence adduced – Effect of – Whether it had been due to her pregnancy – Whether she had suffered pregnancy symptoms – Effect of – Company's actions towards her – What it had shown
Nor Hafizah Yahaya v. Shukor Baljit & Partners
(Teoh Chin Chong) [2022] 2 ILR 36

Notice of termination – Forced resignation – Whether the claimant had been forced to resign – Evidence adduced – Evaluation of – Effect of – Whether proven by the claimant – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Tan Shun Sheng v. V Capital Sdn Bhd
(Paramalingam J Doraisamy) [2022] 2 ILR 135

Performance – Unsatisfactory performance – Claimant's probation period extended accordingly – Whether poor performance successfully proven by the company – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the claimant had been informed of her shortcomings and given opportunities to improve – Whether she had improved – Whether the company's actions towards her had been bona fide – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Afzalini Tajudin v. Inhesion Sales & Marketing Sdn Bhd
(Teoh Chin Chong) [2022] 2 ILR 25

Performance – Unsatisfactory performance – Whether the claimant had performed poorly – Whether proven by the company – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the claimant had been informed of her shortcomings and given an opportunity to improve – Claimant's attitude – What it had reflected – Whether her poor performance had been due to her pregnancy – Factors to consider – Effect of – Whether the company's actions towards her had been reasonable – Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5)
Nor Hafizah Yahaya v. Shukor Baljit & Partners
(Teoh Chin Chong) [2022] 2 ILR 36

Retrenchment – Redundancy – Claimants retrenched – Whether it had been carried out bona fide – Factors to consider – Evidence adduced – Effect of – Whether the claimants had been victimised – Whether the claimants' claims had been supported by the evidence – Effect of – Whether the company had been under an obligation to consult or warn them of their impending retrenchments – Effect of – Whether the claimants had been dismissed without just cause and excuse
Wong Choy Pheng & Ors v. Taylor's University Sdn Bhd
(Reihana Abd Razak) [2022] 2 ILR 88

Retrenchment – Redundancy – Claimants retrenched – Whether their positions had become redundant post-restructuring – Factors to consider – Evidence adduced – Effect of – Whether the LIFO principle and the Code of Conduct for Industrial Harmony had had legal force and been complied with – Effect of – Some of the claimants had been subjected to an independent selection matrix and had the lowest score – Effect of – Whether their selection for retrenchment had been carried out bona fide – Whether their positions had become redundant to the company's requirements – Whether the company had had an obligation to offer them alternative employment either within it or with third parties – Effect of – Whether they had been suitable or qualified to fill the positions of the job vacancies advertised by the company – What their actions had shown – Effect of – Whether dismissals without just cause and excuse
Wong Choy Pheng & Ors v. Taylor's University Sdn Bhd
(Reihana Abd Razak) [2022] 2 ILR 88

Retrenchment – Redundancy – Claimants retrenched – Whether they had been given sufficient notice of their retrenchments – Factors to consider – Evidence adduced – Effect of
Wong Choy Pheng & Ors v. Taylor's University Sdn Bhd
(Reihana Abd Razak) [2022] 2 ILR 88

Retrenchment – Redundancy – Claimant signing the Mutual Separation Agreement (MSA) – Effect of the MSA – Whether it had been executed by her voluntarily – Factors to consider – Evidence adduced – Effect of – What her actions had shown – Whether she had successfully proven that she had been dismissed – Whether dismissal without just cause or excuse
Rukumany Devi S Raghavan v. Ralph Lauren (Malaysia) Sdn Bhd
(Paramalingam J Doraisamy) [2022] 2 ILR 140

Retrenchment – Redundancy – Claimant terminated based on redundancy – Whether a genuine redundancy had existed in the company – Factors to consider – Evidence adduced – Effect of – Whether the company had successfully proven that it had been suffering financially – Whether any measures had been taken by it to cut costs – What its actions had shown – Whether dismissal without just cause and excuse
Tan Lay Goon v. Agensi Pekerjaan Bitara Ulung Sdn Bhd
(Noor Azzah Abdul Aziz) [2022] 2 ILR 124

Retrenchment – Reorganisation – Whether the company's reorganisation exercise had been carried out in a bona fide manner – Factors to consider – Evidence adduced – Effect of – Whether the claimant had been victimised by the company – Effect of – Whether the company had acted in compliance with the LIFO principle – Claimant the company's latest hire – Effect of – Whether dismissal without just cause and excuse
Sharon Lee Nim Chee v. The Edge Property Sdn Bhd
(Zulhelmy Hasan) [2022] 2 ILR 161

Retrenchment – Reorganisation – Whether there had been a genuine need by the company to reorganise its business – Factors to consider – Evidence adduced – Effect of – Claimant sole employee retrenched – Effect of
Tan Lay Goon v. Agensi Pekerjaan Bitara Ulung Sdn Bhd
(Noor Azzah Abdul Aziz) [2022] 2 ILR 124

Retrenchment – Restructuring – Whether the company had undertaken cost-cutting measures – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether its expenditure had been justified – Whether it had carried out its restructuring process bona fide – What its actions had shown
Wong Choy Pheng & Ors v. Taylor's University Sdn Bhd
(Reihana Abd Razak) [2022] 2 ILR 88

Retrenchment – Restructuring – Whether the company's restructuring exercise had been carried out bona fide – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had been suffering financially – Whether it had been within the claimants' knowledge – Company's spending and its justification for the same – Whether acceptable – Whether there had been a genuine need on the part of the company to restructure its workforce – Whether the claimants' positions had become redundant justifying their terminations – Whether their terminations from employment had been carried out with just cause and excuse
Wong Choy Pheng & Ors v. Taylor's University Sdn Bhd
(Reihana Abd Razak) [2022] 2 ILR 88

INDUSTRIAL COURT

Remedies – Compensation – Backwages – What would be a reasonable amount to award to him – Factors to consider – Evidence adduced – Effect of – Industrial Relations Act 1967, Second Schedule
Zailan Hashim v. Maim Holdings Berhad
(Augustine Anthony) [2022] 2 ILR 150

INDEKS PERKARA

KETERANGAN

Inferens bertentangan – COW5 tidak memberikan keterangan di SD syarikat – Kesannya – Sama ada beliau merupakan seorang saksi yang material – Sama ada inferens bertentangan harus dibuat terhadap syarikat – Akta Keterangan 1950, s. 114(g)
Muhammad Afiq Ahlami Azman lwn. SWM Environment Sdn Bhd
(Zulhelmy Hasan) [2022] 2 ILR 55

Keterangan dokumentari – Rakaman CCTV syarikat – Sama ada ia memadai untuk membuktikan salah laku YM – Faktor-faktor yang harus diambil kira – Kesannya
Muhammad Afiq Ahlami Azman lwn. SWM Environment Sdn Bhd
(Zulhelmy Hasan) [2022] 2 ILR 55

PEMBUANGAN KERJA

Salah laku – Sama ada YM telah menghendap, mengintai dan merakam video/gambar terhadap COW2 ketika beliau berada di dalam tandas – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Pembelaan YM – Sama ada dapat diterima – Sama ada pertuduhan in berjaya dibuktikan oleh syarikat terhadapnya – Kesannya – Sama ada kes syarikat terhadap beliau hanya berdasarkan andaian, kebarangkalian dan kemungkinan – Apa yang syarikat sepatutnya lakukan – Sama ada pertuduhan ini berjaya dibuktikan oleh syarikat terhadapnya – Sama ada ia mewajarkan pembuangan kerjanya – Akta Perhubungan Perusahaan 1967, ss. 20(3) & 30(5)
Muhammad Afiq Ahlami Azman lwn. SWM Environment Sdn Bhd
(Zulhelmy Hasan) [2022] 2 ILR 55

SIASATAN DALAMAN

Kesilapan prosedur – Sama ada SD tersebut telah dijalankan mengikut prinsip keadilan asasi – Faktor-faktor yang harus diambil kira – Kesannya
Muhammad Afiq Ahlami Azman lwn. SWM Environment Sdn Bhd
(Zulhelmy Hasan) [2022] 2 ILR 55