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LATEST CASES (ILR Issue 5 of 2022) |
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SUBJECT INDEX CIVIL PROCEDURE Judicial review – Industrial Court – Judicial review against Industrial Court's
award – Bank's employee dismissed following charges of misconduct – Employee engaged in private business without bank's consent – Matter
referred to Industrial Court – Industrial Court dismissed employee's claim – Employee's application for judicial review of Industrial Court's award
dismissed by High Court – Whether judicial review proceedings mere
challenge to findings of fact and conclusions made by Industrial Court – Whether findings reviewable by way of judicial review proceedings – Whether judicial review proceedings initiated by employee essentially
appeal in disguise DISMISSAL Attendance – Lateness – Whether the claimant had been a habitual latecomer
to work – Factors to consider – Evidence adduced – Evaluation of – Effect
of – Claimant given warning and show cause letters but failing to improve – What it had shown – Whether he had possessed a negative work attitude – Effect of – Whether his poor disciplinary record had justified his
non-confirmation in employment – Whether his non-confirmation had been
carried out bona fide Breach of company rules and policies – Confidential information – Whether
the claimant had leaked the company's confidential information to third
parties – Factors to consider – Evidence adduced – Effect of – Her defence
and explanations – Whether could be accepted – What constituted
"confidential information" – Whether the charge(s) had successfully been
proven against her – Whether it had constituted serious misconduct – Whether it had justified her dismissal Breach of company rules and policies – Negligence – Claimant approving
NT's full attendance claims despite there not being full attendance – Whether
it had been in breach of the company's SOPs – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the company had
successfully proven the charge against him – Whether it had justified his
dismissal – Whether dismissal without just cause and excuse Breach of company rules and policies – Workplace harassment – Claimant
questioning COW4 on personal matters during working hours and displaying
a motive of wanting more than just a working relationship with her – Whether he had, by his actions, harassed her – Factors to consider – Evidence adduced – Effect of – Claimant was COW4's immediate superior – Whether he had been in breach of the company's policy on harassment – His defence – Whether could be accepted – Whether his actions had
constituted serious misconduct justifying his dismissal – How he should have
behaved as her immediate superior – Whether COW4's delay in lodging a
complaint against him should be used against her – Effect of – Whether
dismissal without just cause and excuse Insubordination – Claimant failing to take her superior's calls and answer
his messages over the weekend – Whether it had constituted insubordinate
behaviour – Factors to consider – Evidence adduced – Effect of – Her
explanations – Whether acceptable – Whether the charge had been proven
by the company against her – Whether it had justified her dismissal – Effect
of – Whether dismissal without just cause and excuse Misconduct – Claimant verifying full attendance for all operational and
mechanical workers supplied by NT despite there not being full attendance – Replacement workers then signing NT's attendance book – Effect of – Whether it had been in breach of health and safety requirements – Whether
it had constituted serious misconduct – Factors to consider – Evidence
adduced – Effect of – Whether it had justified his dismissal Misconduct – Harassment – Claimant persistently messaging COW4 on
unprofessional, intimate and emotional matters unrelated to work – Whether, by his actions, he had harassed her – Factors to consider – Evidence adduced – Effect of – His defence – Whether acceptable – COW4's
responses to them – Whether the misconduct had successfully been proven
against him – Whether it had constituted serious misconduct – Whether it
had justified his dismissal Misconduct – Harassment – Claimant stalking COW4's Facebook account,
taking her late mother's photo, using it as his WhatsApp profile picture and
refusing to remove it immediately – Whether it had constituted workplace
harassment and serious misconduct – His explanations – Whether acceptable – COW4's response to his actions – Effect of – Whether the charge had
successfully been proven against him – Whether it had justified his dismissal – Whether dismissal without just cause and excuse Misconduct – Whether the claimant had shared her subordinate's
performance appraisal with third parties outside the company – Factors to
consider – Evidence adduced – Effect of – Whether it had constituted serious
misconduct – Whether her actions had been a breach of her express and/or
implied duty of confidentiality to the company – Whether the company had
acted reasonably in dismissing her – Whether dismissal with just cause and
excuse Performance – Poor performance – Whether the claimant had failed to
perform satisfactorily – Factors to consider – Evidence adduced – Evaluation
of – Effect of – Yearly sales target not in her appointment letter – Effect of – Period of her evaluation – Whether premature to terminate her based on
it – Whether poor performance successfully proven by the company against
her – What the real reason for her termination had been – Whether dismissal
without just cause and excuse Performance – Unsatisfactory performance – Whether the claimant had
performed poorly – Whether proven by the bank – Evidence adduced – Evaluation of – Effect of – Position held by him in the bank – Whether the
claimant had been informed of his shortcomings and given opportunity to
improve – Whether he had been given guidance – Claimant's actions and
conduct – What it had shown – Effect of – Claimant's attitude – What it had
reflected – Claimant's experience in the industry – What had been expected
of him – Whether the bank's actions towards him had been reasonable – Whether he had been victimised – Whether dismissal without just cause or
excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5) Probation – Non-confirmation of the claimant at the end of his probation
period – Whether it had been carried out bona fide – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether it had been carried
out with just cause and excuse DOMESTIC INQUIRY Absence of – Whether the bank had flouted its own disciplinary rules – Factors to consider – Evidence adduced – Effect of – Whether fatal to its case EVIDENCE Audio evidence – Claimant producing a clandestine recording between
herself and her superior – Whether it had been admissible in evidence – Factors to consider – Evidence adduced – Evaluation of case laws – Effect
of INDUSTRIAL COURT Jurisdiction – Extraterritorial jurisdiction – Whether the IC could join
parties who resided outside its territorial jurisdiction – Factors to consider – Evaluation of case laws and legislation – Effect of – Whether the 2nd
Joinee and 3rd Joinee ought to be joined to these proceedings Procedure – Action – Claimant passed away after the completion of the
hearing but before the handing down of the Award – Whether the matter had
abated upon his death – Factors to consider – Evidence adduced – Effect of – Whether the provisions of the Industrial Relations Act (Amended) 2020
had applied in this case – Industrial Relations Act 1967, ss. 28, 29(fa), 29(g),
30(2), (3), (5) & (6) and Industrial Relations Act (Amended) 2020, s. 29(ea) Procedure – Parties – Joinder – Joinder of the Proposed Joinees to the
non-compliance proceedings – Whether it ought to be allowed – Factors to
consider – Evidence adduced – Test to be applied – Effect of – Industrial
Relations Act 1967, ss. 29(a), (g) & 56(1) Procedure – Pleadings – Claimant seeking to refile her SOC afresh after the
close of pleadings – Reasons for the same – Whether it had been an abuse
of process – Factors to consider – Evidence adduced – Evaluation of – Effect
of – Whether the Said Application ought to be allowed – Industrial Relations
Act 1967, s. 29(g) Procedure – Pleadings – Filing of Surrejoinder by the company – Whether
it ought to be allowed – Factors to consider – Evidence adduced – Effect of – Whether the Industrial Court had inherent powers like the civil courts – Industrial Relations Act 1967, ss. 29(g) & 30(5) and Rules of Court 2012,
O. 18 r. 4 Procedure – Representation – Claimant seeking to refile pleadings on the
basis that the MTUC representative had been a non-lawyer – Whether any
merit to her application – Factors to consider – Evidence adduced – Effect
of – Whether the MTUC representative had been competent to represent her
in the Industrial Court – Industrial Relations Act 1967, s. 27(1)(d) Remedies – Compensation in lieu of reinstatement – Whether the claimant
had been entitled to it – Factors to consider – Evidence adduced – Effect of – Her length of service with the company
Tan Wei Sin v. Tanchem Ingredients Sdn Bhd
INDEKS PERKARA MAHKAMAH PERUSAHAAN Prosedur – Tindakan – Bantahan awal syarikat – Syarikat mendakwa bahawa
tarikh pemberhentian YM yang dinyatakan di dalam plidingnya adalah salah – Sama ada penentuan tarikh pemberhentian YM harus diputuskan di akhir
perbicaraan – Faktor-faktor yang harus diambil kira – Penilaian kes yang
dikemukakan – Kesannya – Sama ada bantahan awal tersebut harus
dibenarkan – Akta Perhubungan Perusahaan, s. 29(da) Prosedur – Tindakan – Bantahan awal syarikat – YM mengemukakan
keterangan berkenaan proses perundingan di Jabatan Perhubungan
Perusahaan di dalam Penyataan Kes dan Ikatan Dokumennya – Sama ada
keterangan tersebut harus dibuang – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada bantahan awal
tersebut harus dibenarkan – Akta Perhubungan Perusahaan, s. 54(1) |
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