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LATEST CASES (ILR Issue 9 of 2022) |
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SUBJECT INDEX ADMINISTRATIVE LAW Judicial review – Application – Disciplinary proceedings pursuant to
complaints against applicant – Validity of decision of Disciplinary
Committee of Malaysian Institute of Accountants ('DC') – Whether issues
in both complaints same – Whether final determination of one complaint
rendered continuation of proceeding in second complaint invalid – Whether
DC allowed to refer dismissal application back to investigation committee
after IC framed charges against applicant – Whether DC's action tainted with
procedural impropriety – Whether DC acted independently and
autonomously CONTRACT OF EMPLOYMENT Existence of – Whether there had existed a contract of employment between
the claimant and the company – Factors to consider – Evidence adduced – Effect of – Whether the claimant had been a volunteer rendering service to
the company – Industrial Relations Act 1967, s. 2 Terms and conditions – Medical Boarding Out – Factors to consider when
determining – Effect of – Whether the claimant had been unfit to work – Whether his assessment had been done in compliance with the 9th CA – Factors to consider – Evidence adduced – Effect of – Whether the medical
evidence had supported the company's case – Whether the company had
acted bona fide – Claimant a long serving employee of the company with no
disciplinary issues – Whether the company had been justified in dismissing
him Terms and conditions – Medical Boarding Out – SOCSO medical board and
its medical appeal board certifying the claimant's healthy status – Findings
disregarded by the company – What it had indicated – Reliance placed by
company on the sole medical report of COW1 – Whether COW1's
assessment had been accurate – Factors to consider – Evidence adduced – Effect of – Whether COW1 had been a qualified and correct person to assess
the claimant – Whether he had exceeded his powers here – What the
provisions of the 9th CA had provided – Whether complied with by the company – Claimant's immediate superior not consulted – Effect of – Whether the company had acted in haste in dismissing him – Whether
dismissal without just cause and excuse Terms and conditions – Resignation – Claimant resigning – Whether he had
been forced to resign – Factors to consider – Evidence adduced – Effect of – Claimant's actions – What it had shown – Whether he had resigned
voluntarily – Position held by him in the company – Whether his resignation
had effectively been a dismissal – Whether dismissal without just cause and
excuse DISMISSAL Breach of company rules and policies – Claimant charged under the COCD
but punished under COBE, which had not been in force when he had
allegedly committed the misconduct – Whether it had been against the rule
of law – Factors to consider – Evidence adduced – Evaluation of – Effect
of – Whether the application of COBE on him retrospectively, had been
against public policy and had prejudiced him – Effect of – Whether the
company had proven the charges against him on a balance of probability – Claimant's contributory conduct – What it had shown – The position he had
held and the years of service he had had in the company – Effect of – Whether his actions had justified his termination – Whether dismissal
without just cause and excuse Misconduct – Whether the claimant had committed misconduct that had
justified his dismissal – Factors to consider – Evidence adduced – Effect of – Whether the claimant had been accorded an opportunity to be heard before
being dismissed – Powers of the sole Director over him – What it had
indicated – Director acting as the complainant, investigator and judge – Effect of – Whether the company had successfully proven the allegations
against him – Whether it had justified his dismissal – Whether dismissal
without just cause and excuse Notice of termination – Forced resignation – Claimant signing resignation
letter when confronted with his default on the Settlement Agreement – His
actions thereafter – What it had shown – Whether he had been forced to
resign – Factors to consider – Evidence adduced – Effect of – Whether he
had made out his case against the company DOMESTIC INQUIRY Charges – Whether the criminal or semi-criminal charges against the
claimant had been defective for want of particulars – Factors to consider – Evidence adduced – Effect of – Perusal of the contents of the charges – Whether the charges against the claimant had been null and void EVIDENCE Admissibility – Whether the letters written subsequent to the filing of the
claimant's representation and upon the IRD taking steps for the expeditious
settlement of the matter, could be admitted into evidence – Factors to
consider – Evidence adduced – Effect of – Industrial Relations Act 1967, ss. 20(2) and 54 Documentary evidence – Determination of who had been the claimant's
employer – Factors to consider – Evidence adduced – Effect of Documentary evidence – Findings of the Domestic Inquiry – Company
stating its intention not to rely on DI findings and to conduct the matter de novo in Court – Effect of – Whether fatal to the company's case – Whether
there had been any procedural breach on the company's part in deciding not
to rely on its DI findings Documentary evidence – Whether the claimant had been a workman – Factors to consider – Evidence adduced – Effect of – Degree of control the
Director of the company had had over him – What it had indicated – Whether the claimant had been the company's employee – Industrial
Relations Act 1967 s. 2 INDUSTRIAL COURT Jurisdiction – Extra-territorial jurisdiction – Parties executing an
Employment Agreement agreeing to be bound and governed by the laws of
the Republic of Singapore, for dispute resolution – Perusal of the contents
of the Agreement – Intention of the parties – Whether the Industrial Court
had extra-territorial jurisdiction to hear the matter – Factors to consider – Evidence adduced – Effect of – Whether the company's application to strike
out the case ought to be allowed – Industrial Relations Act 1967, ss. 29(a)
& 29(fa) Procedure – Action – Striking out the claimant's claim – Which provision
of the Industrial Relations Act 1967 had to be used – Evaluation of the
legislation – Effect of – Whether an error made therein had merely been
technical and could be cured – Effect of – Industrial Relations Act 1967, ss. 29(a) & 29(fa) Procedure – Action – Whether the claimant had filed his claim within the
requisite 60 days stipulated in the Act – Factors to consider – Evidence
adduced – Evaluation of the evidence – Effect of – Determination of when
he had been dismissed – Industrial Relations Act 1967, s. 20(1A) Procedure – Parties – Joinder – Joinder of AirAsia Berhad to the proceedings – Claimant employed by AirAsia Berhad but transferred to the company and
then made redundant whilst on long hospitalisation leave – She never
actually reported to the company – Effect of – What would need to be
established at the substantive hearing of the matter – Whether the joinder
application here ought to be allowed at this juncture – Whether it had been
premature – What "effective and enforceable adjudication" had related to Procedure – Parties – Joinder – Joinder of AirAsia Berhad to the proceedings – Whether it ought to be allowed – Factors to consider – Evidence adduced – Effect of – Test to be applied – Whether sufficient legal nexus between the
parties established – Industrial Relations Act 1967, s. 29(a) & (g) Procedure – Pleadings – Amendment of pleadings – Company applying to
expunge its Case Reply and file a fresh Statement in Reply – Reasons for the
same – Whether it ought to be allowed – Factors to consider – Effect of – Industrial Relations Act 1967, s. 29(g) and Industrial Court Rules 1967,
r. 10(3) & (4) Procedure – Pleadings – Whether the parties had complied with the rules on
pleadings, as provided under the Industrial Court Rules 1967 – Factors to
consider – Perusal of the pleadings – Effect of – Whether the objections by
the respective parties ought to be allowed – Industrial Court Rules 1967,
rr. 9(3) & 10(3) Remedies – Backwages – Determination of a suitable amount to award – Factors to consider – Effect of Remedies – Compensation in lieu of reinstatement – Whether suitable to
award – Age of the claimant at the conclusion of the hearing – Effect of Remedies – Punishment – Whether the punishment imposed upon him had
been disproportionate to the charges against him – Factors to consider – Evidence adduced – Effect of – Whether the company had complied with the
proper procedure on sentencing – Whether there had been a lack of
procedural fairness and a breach of natural justice in the way he had been
punished by the company LABOUR LAW Dismissal – Claim – Claimant employee of hotel and member of trade union – Claimant retrenched from employment but continued being member and
officer of trade union – Claimant committed serious misconduct and expelled
from membership of trade union – Whether dismissal without just cause or
excuse – Claimant prayed for reinstatement to former position – Whether
claimant 'workman' within definition of s. 2 of Industrial Relations Act 1967 – Whether Industrial Court clothed with jurisdiction to determine matter
involving expulsion of trade union memberships – Trade Unions Act 1959, s. 2 Trade union – Member – Claimant employee of hotel and member of trade
union – Claimant retrenched from employment but continued being member
and officer of trade union – Claimant committed serious misconduct and
expelled from membership of trade union – Whether dismissal without just
cause or excuse – Claimant prayed for reinstatement to former position – Whether claimant 'workman' within definition of s. 2 of Industrial Relations
Act 1967 – Whether Industrial Court clothed with jurisdiction to determine
matter involving expulsion of trade union memberships – Trade Unions Act
1959, s. 2 NON-COMPLIANCE Collective Agreement – Article on bonus payments – Whether the payments
had been contractual or discretionary in nature – Companies not paying
bonus citing deteriorating financial conditions caused by the Covid-19
pandemic – Whether proven – Whether the companies had exercised their
discretion in good faith – Factors to consider – Evidence adduced – Effect
of – Whether there had been non-compliance by the companies of art. 30 in
the 11th CA Collective Agreement – Article on bonus payments – Whether there had been
non-compliance by the companies of the said article in the 11th CA – Factors
to consider – Evidence adduced – Effect of – Perusal of the article and its
contents – Whether the wording had been lucid and unambiguous – Past
practice of the companies – Whether it had created a legitimate expectation
that it would be paid every year – Effect of – Industrial Relations Act 1967, s. 56(1) & Industrial Court Rules 1967, r. 24A INDEKS PERKARA MAHKAMAH PERUSAHAAN Prosedur – Representasi – Pihak syarikat memohon untuk mendapatkan
representasi peguam – YM membantah – Alasan-alasan beliau – Sama ada
Permohonan ini harus dibenarkan – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Akta Perhubungan Perusahaan
1967, s. 27(1)(d) |
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