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LATEST CASES (ILR Issue 10 of 2022) |
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SUBJECT INDEX ADMINISTRATIVE LAW Judicial review – Appeal against – Dismissal – Public officer dismissed from
service – Use of public position for personal advantage – Judicial review
against decision of Disciplinary Authority and Disciplinary Appeal Board – Whether charges valid and sufficiently particularised – Whether there was
limitation period for disciplinary proceedings to be instituted – Whether
decision-makers obliged to provide reasons for dismissal – Whether
punishment proportionate to charge – Whether there was passive
condonation – Whether presence of interested parties caused disciplinary
proceedings to be defective – Rules of Court 2012, O. 53 Public officer – Dismissal – Public officer dismissed from service – Use of
public position for personal advantage – Judicial review against decision of
Disciplinary Authority and Disciplinary Appeal Board – Whether charges
valid and sufficiently particularised – Whether there was limitation period
for disciplinary proceedings to be instituted – Whether decision-makers
obliged to provide reasons for dismissal – Whether punishment
proportionate to charge – Whether there was passive condonation – Whether
presence of interested parties caused disciplinary proceedings to be defective – Public Officers (Conduct and Discipline) Regulations 1993, regs. 15,
37(2)(a), (b), 37D(a), (b) & 37(5) DISMISSAL Abandonment – Claimant failing to report for work despite numerous
reminders from the company – What it had indicated – Whether, by her
actions, she had abandoned her employment with the company – Her reasons
for the same – Whether acceptable – Factors to consider – Evidence adduced – Effect of – Whether she had been dismissed Absenteeism – Claimant absent from work without leave for a month – Company not terminating her – What it had shown – Company advising her
to return to work instead – Effect of – Whether she had, by her actions,
indicated her intention of no longer continuing in the company’s employ – Effect of Breach of company rules and policies – Claimant in breach of the company’s
health and safety policies – Whether successfully proven by the company
against him – Factors to consider – Evidence adduced – Evaluation of – Effect of – Claimant either admitting to the charges or failing to respond to
them until the trial or failing to back it up with the evidence – Effect of – Whether his explanations had been an afterthought and ought to be accepted – Whether the company, by its conduct, had acted mala fide towards him – Whether the company had successfully proven the charges against him – Whether it had justified his dismissal – Whether dismissal without just cause
and excuse Constructive dismissal – Demotion – Whether the claimant’s transfer to the
Nilai Factory had amounted to a demotion – Factors to consider – Evidence
adduced – Effect of – Change in the Finance Department’s organisation chart – What it had indicated – Reasons for her transfer – Whether justified – Whether her transfer had been carried out bona fide – Whether it had justified
her walking out of her employment and claiming constructive dismissal – Whether she had delayed in walking out of her employment – Whether
dismissal without just cause and excuse Constructive dismissal – Indefinite and prolonged unpaid leave – Claimant
placed on extension upon extension of unpaid leave – Whether it had been
justified – Whether it had been done with her consent and agreement – Factors to consider – Evidence adduced – Effect of – Whether it had been
imposed by the company unilaterally and had amounted to a breach of the
fundamental terms of her contract of employment – The company’s actions
thereafter – What it had shown – Whether the claimant had been victimised
and mistreated – Whether her constructive dismissal claim ought to be
allowed Constructive dismissal – Salary – Claimant’s salary remaining unpaid
indefinitely – Whether it had constituted a fundamental breach of her
contract of employment – Factors to consider – Evidence adduced – Effect
of – Company’s justifications – Whether acceptable – Whether she had acted
soon after the breach – Whether it had justified the claimant walking out of
her employment and claiming constructive dismissal Constructive dismissal – Transfer – Claimant transferred to the Nilai
Factory despite objecting to the same – Whether she had been suitable for
the job at the Nilai Factory – Whether she had been the only person that
could have resolved the problem there – Effect of – Claimant’s suggestions
on alternative resolutions for the Nilai Factory issue, neither considered nor
adopted – What the company’s actions had shown – Whether the company’s
action had been a fundamental breach that had gone to the root of her
contract of employment – Whether the transfer had been carried out bona fide – Whether the claimant had been constructively dismissed – Whether
dismissal without just cause and excuse Misconduct – Claimant failing to respond to the company’s show cause
letters – Whether it had constituted insolent behaviour that had been
detrimental to the company’s discipline – Factors to consider – Evidence
adduced – Effect of – Whether it had proven his guilt to the charges against him Notice of termination – Forced resignation – Whether the claimant had been
forced to resign by the company – Factors to consider – Evidence adduced – Effect of – Whether she had successfully made out her case against the
company Victimisation – Company withdrawing transportation privileges given to the
claimant – Whether it had constituted a fundamental breach of her
employment contract – Whether it had entitled her to stop reporting for work – Whether she had been entitled to those privileges contractually – Factors
to consider – Evidence adduced – Effect of – Perusal of the employment
contract – Whether by the withdrawal of those privileges, she had been
entitled to consider herself dismissed by the company – Company’s actions
towards her – What it had shown – Whether the claimant had been dismissed
by the company – Whether dismissal without just cause and excuse EVIDENCE Witness – Credibility – Whether the claimant had been a truthful and
credible witness – Factors to consider – Evidence adduced – Effect of LABOUR LAW Industrial Court – Jurisdiction – Claim for unlawful dismissal – Claimants
employee of Binational Commission – Matters referred to Industrial Court – Industrial Court ruled that it had no jurisdiction to hear and determine
matters – Whether employee workman employed by Government – Whether service with employer considered form of Government service – Industrial Relations Act 1967, ss. 20(1A), 20(3) & 52(1) Industrial Court – Jurisdiction – Claim for unlawful dismissal – Claimants
employee of Binational Commission – Matters referred to Industrial Court – Industrial Court ruled that it had no jurisdiction to hear and determine
matters – Whether Industrial Court could disregard decision made by
Minister to refer matters to it – Whether Industrial Court’s jurisdiction could
be challenged without having attacked Minister’s act of referring dispute to
it – Industrial Relations Act 1967, ss. 20(1A), 20(3) & 52(1) INDEKS PERKARA KETERANGAN Keterangan dokumentari – Sama ada YM merupakan seorang pekerja pihak
syarikat – Faktor-faktor yang harus diambil kira – Keterangan yang
dikemukakan – Kesannya – Akta Perhubungan Perusahaan 1967, s. 2 KETIDAKPATUHAN Award – Pengetepian Award – Award Persetujuan direkodkan dengan
kehadiran Chow Chuan Fat, yang bukan Pengarah syarikat dan tiada mandat
melalui resolusi Lembaga Pengarah syarikat – Kesannya – Tindakan syarikat – Apa ia menunjukkan – Syarikat diwakili peguam – Implikasi – Sama ada
permohonan pihak syarikat untuk mengetepikan Award tersebut harus
dibenarkan – Faktor-faktor yang harus diambil kira – Keterangan yang
dikemukakan – Kesannya – Akta Perhubungan Perusahaan 1967, s. 56(2)(c) PEMBUANGAN KERJA Hak meninggalkan – Sama ada YM telah meninggalkan perkhidmatan
beliau dengan pihak syarikat melalui kegagalannya menjalankan ujian
saringan Covid-19 – Faktor-faktor yang harus diambil kira – Keterangan
yang dikemukakan – Penilaiannya – Kesannya – Sebab mengapa beliau gagal
menjalankan ujian saringan tersebut – Sama ada dapat diterima – Kelakuan
dan tindakan YM – Apa ianya menunjukkan – Kesannya – Sama ada beliau
telah meninggalkan perkhidmatan beliau dengan pihak syarikat – Sama ada
syarikat wajib membayar bagi ujian saringan beliau – Kesannya – Sama ada
pembuangan kerja YM telah dilakukan secara adil dan bersebab Salah laku – Sama ada YM telah terlibat dalam pergaduhan dan ingkar
arahan majikan – Faktor-faktor yang harus diambil kira – Keterangan yang
dikemukakan – Penilaian keterangan – Kesannya – Sama ada pihak syarikat
telah berjaya membuktikan salah laku – salah laku ini terhadap beliau – Kesannya – Sama ada pembuangan kerjanya telah dilakukan secara adil dan
bersebab |
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