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LATEST CASES (ILR Issue 12 of 2022) |
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SUBJECT INDEX ADMINISTRATIVE LAW Judicial review – Appeal against – Appeal against High Court decision
quashing award of Industrial Court – Industrial Court held dismissal of
employee with just cause and excuse – Whether findings of Industrial Court
in accordance with evidence adduced – Whether High Court Judge (‘HCJ’)
ought not to have interfered with findings of facts by Industrial Court – Whether HCJ took correct approach in evaluating evidence – Whether there
were appealable errors on HCJ’s part in allowing judicial review – Whether
appellate intervention warranted – Whether award of Industrial Court ought
to be re-instated Judicial review – Application for – Applicant suffered from panic disorder
and major depression – Applicant charged under reg. 37 of Public Officers (Conduct and Discipline) Regulations 1993 for absence without leave and
justification – Applicant dismissed from employment – Whether disciplinary
authority and appeal board considered medical documents on applicant’s
mental health – Whether disciplinary authority ought to have established
Committee of Investigation (‘CI’) – Whether failure to establish CI meant
that disciplinary procedure was unfair – Whether decision to dismiss was
illegal and irrational DISMISSAL Attendance – Lateness – Whether the claimant had been reporting to work
late – Factors to consider – Evidence adduced – Effect of – Whether proven
by the company against him – Whether it had justified his dismissal Breach of company rules and policies – Claimant lodging a police report
against a student without the company’s authorisation and/or approval – Whether it had been in breach of the company’s policies – Factors to
consider – Evidence adduced – Evaluation of – Effect of – Company’s
actions towards him – What it had shown – Claimant’s explanations for
lodging the police report – Effect of – Whether this charge had successfully
been proven by the company against him – Whether it had justified his
dismissal – Whether dismissal without just cause and excuse Breach of company rules and policies – Harassment – Whether the claimant
had harassed COW1 at the Club – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the charge had been successfully
proven by the company against him – Claimant denying the charge – Whether his denial could be accepted – Whether he had been in breach of
the company’s SoBC – Whether the SoBC had applied to events that had
transpired at the Club – Effect of – Whether his conduct had constituted
serious misconduct justifying his dismissal – Whether dismissal without just
cause and excuse Constructive dismissal – Humiliation – Claimant subjected to abusive and
vulgar words from COW1 and raising a grievance on it – Actions taken by
the company – What it had shown – Whether acceptable – What it should
have done instead – Whether it had practised unfair labour practices – Whether constructive dismissal proven by him successfully – Whether his
constructive dismissal claim ought to be allowed Constructive dismissal – Scope of employment – Whether the claimant had
been made to work beyond his scope of employment – Factors to consider – Evidence adduced – Evaluation of – Effect of – Position held by the
claimant as against what he had been asked to do – Effect of – Company’s
explanations – Whether acceptable – Whether it had amounted to a
fundamental breach of the contract of employment – Whether it had justified
him walking out of his employment and claiming constructive dismissal
Jegathisvararau Ramachandran v. Sem Siong Industries Sdn Bhd
Constructive dismissal – Transfer – Claimant transferred numerous times – Whether it had been in line with his contract of employment – Whether it
had constituted a fundamental breach of the contract of employment – Factors to consider – Evidence adduced – Effect of – Company’s
explanations – Whether acceptable – Whether it had justified him walking
out of his employment and claiming constructive dismissal Misconduct – Whether the claimant had been verbally abusive towards his
students and had mocked students of different nationalities – Company
relying on WhatsApp communications to prove the charges against him – Whether WhatsApp communications could be manipulated – Whether such evidence had been credible to rely on – Effect of – What the company should
have done instead – Whether the charge had been successfully proven against
him – Whether it had justified his dismissal Misconduct – Whether the claimant had been verbally abusive towards his
students and had mocked students of different nationalities – Factors to
consider – Evidence adduced – Effect of – Company relying on WhatsApp
communications – Whether such communications had been hearsay evidence – Company’s actions towards him – What it had shown – Whether the
charges had been successfully established against him – Whether it had
justified his dismissal – Whether dismissal without just cause and excuse Misconduct – Whether the claimant had harassed COW1 at the Club – Factors to consider – Evidence adduced – Effect of – COW1’s evidence on
it – What it had shown – Claimant’s defence – Whether acceptable – Whether the claimant had been in breach of the company’s SoBC – When
the SoBC had applied – Whether it had constituted serious misconduct
justifying his dismissal – Whether dismissal without just cause and excuse Notice of termination – Whether the Court could look into reasons, not
stated in the termination notice, for the dismissal – Factors to consider – Evaluation of the case laws – Effect of DOMESTIC INQUIRY Findings of – Panel finding that he could not have been guilty of the charge
and yet finding him guilty of it – Effect of – What it had shown – Whether
it had been irrational in its findings INDUSTRIAL COURT Procedure – Action – Company applying to tender a Redacted Confidential
Report into Court as evidence – Whether it ought to be allowed – Factors
to consider – Evidence adduced – Effect of – Industrial Relations Act 1967,
ss. 55, 29(e), (g) & 30(5) Procedure – Action – Striking out – Whether the union’s striking out
application ought to be allowed – Factors to consider – Evidence adduced – Effect of – Whether s. 22(1) of the Trade Unions Act 1959 gives the union
blanket statutory immunity from any liability in respect of any alleged
tortious acts done on its behalf – Whether immunity applied in this case – Effect of – Industrial Relations Act 1967, s. 29(fa) and Trade Unions Act
1959, s. 22(1) Procedure – Pleadings – Amendment of Rejoinder – Whether allowed by the
Rules – Effect of – When a Rejoinder could be filed and its contents – Company seeking to amend its Rejoinder – Whether the company, by its
proposed amendment, had sought to raise new issues – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether the Said
Application ought to be allowed – Whether it had been the company’s
attempt to have a “second bite of the cherry” – Whether there had been
unexplained inordinate delay by the company in filing the Said Application – Whether the union would be prejudiced by it – Industrial Relations Act
1967, ss. 26(2), 29(g) and the Industrial Court Rules 1967, r. 11(2) Procedure – Pleadings – Company seeking to amend its Rejoinder – Whether
the Said Application had been made bona fide – Factors to consider – Evidence adduced – Effect of – Whether it would be in accordance with
equity and good conscience to allow the Said Application – Effect of LABOUR LAW Employment – Re-designation of employee – Whether demotion – Whether
constituted constructive dismissal – Whether disproportionate and harsh – Whether dismissal with just cause and excuse TRADE DISPUTE Collective Agreement – Terms and conditions of service – Article on laundry
allowance – Union proposing this new article – Reasons for the company’s
objections – Whether it had merit – Whether this new article ought to be
allowed – Factors to consider – Evidence adduced – Effect of – Whether the
company had had the financial ability to pay Collective Agreement – Terms and conditions of service – Article on
maximum salaried employees not receiving an increment – Whether
redundant in view of union’s proposals for salary revision in Appendix I – Factors to consider – Evidence adduced – Effect of Collective Agreement – Terms and conditions of service – New article on
mode of implementation – Whether the union’s proposal(s) had been fair and
reasonable – Company also proposing provisions based on the Harun J
formula – Which proposal had been fairer – Factors to consider – Evidence
adduced – Effect of – Which proposal would be adopted Collective Agreement – Terms and conditions of service – Article on
overtime – Company seeking a revision of this article to distinguish between
employees covered under the Employment Act 1955 and those that are not – Reasons for the same – Whether it ought to be allowed – Factors to
consider – Evidence adduced – Effect of Collective Agreement – Terms and conditions of service – Article on
retirement benefit payments – Company seeking a revision of this article to
include non-management employees above 50, subject to restrictions – Reasons for the same – Whether it ought to be allowed – Factors to consider – Evidence adduced – Effect of – Whether the company had had the financial
standing to comply with the existing article Collective Agreement – Terms and conditions of service – Article on salary
adjustment guidelines – Union proposing a deletion of this article – Whether
it ought to be allowed – Factors to consider – Evidence adduced – Effect of Collective Agreement – Terms and conditions of service – Article on salary
adjustment guidelines for upgrade/promotions and annual salary review
guidelines – Union proposing a deletion of this article – Whether it ought to
be allowed – Factors to consider – Evidence adduced – Effect of – Company
insisting on maintaining the existing provisions – Reasons for the same Collective Agreement – Terms and conditions of service – Article on the
general character relating to the procedures or promotion of an employee – Union proposing a revision of the original article in the 1st CA – Whether
it ought to be allowed – Factors to consider – Evidence adduced – Effect of Collective Agreement – Terms and conditions of service – Article on the
revision of the maximum salary scale of the employees – Whether the
union’s proposal had been excessive – Company also proposing a revision
on the article – Which proposal had had more merit – Factors to consider – Evidence adduced – Effect of – Whether the company had been making
consistent profits to justify this revision by the union – Whether the union’s
proposal ought to be allowed Collective Agreement – Terms and conditions of service – Articles to be
incorporated into the 2nd CA – Whether the company had been on a strong
financial footing to meet the expectations of the union and continue its
business expansion, as projected by it and its holding company – Factors to
consider – Evidence adduced – Effect of – Industrial Relations Act 1967,
ss. 30(4), 30(5) and 30(6) Warning letter – Breach of IT Rules not mentioned in the company’s show
cause letter(s) to the Union President and mentioned for the first time in the
Warning Letter, based on his responses to the show cause letter(s) – Whether
he had been given an opportunity to put forward his defence or be heard on
it – Whether it had violated the principles of fairness – Industrial Relations
Act 1967, s. 6(1) Warning letter – Company audit focussed on Union President – What the
company’s real motive had been – Whether there had been an intention to
victimise him as a union member – Factors to consider – Evidence adduced – Effect of – Whether the company’s actions had been a bona fide disciplinary
action against him for his alleged breach of its policies and procedures – Whether the Warning Letter had been a bona fide exercise of the company’s
management rights and prerogative – Effect of – Industrial Relations Act
1967, ss. 5(2) Warning letter – Company issuing a Warning Letter to the Union President
for being in breach of its IT policies, rules and its Handbook – Whether the
Union President had been guilty of the misconduct – Factors to consider – Evidence adduced – Evaluation of – Effect of – What the company’s past
practice had shown – Whether it had discriminated against him – Industrial
Relations Act 1967, ss. 5(1), (2) WORDS & PHRASES Harassment – What it meant – Whether it had to be repetitive INDEKS PERKARA KETERANGAN Percanggahan keterangan – Sama ada terdapat percanggahan keterangan
dalam tarikh YM diberhentikan kerja di dalam plidingnya dan keterangan
dokumentari – Faktor-faktor yang harus diambil kira – Keterangan yang
dikemukakan – Kesannya – Sama ada beliau dibuang kerja pada 17 Disember
2019 atau 17 Mac 2020 MAHKAMAH PERUSAHAAN Prosedur – Tindakan – YM membuat rujukan kepada Ketua Pengarah
Perhubungan Perusahaan pada 17 Disember 2019 tetapi hanya ditamatkan
perkhidmatannya pada 17 Mac 2020 – Sama ada tindakan beliau disini
adalah pra-matang – Faktor-faktor yang harus diambil kira – Keterangan
yang dikemukakan – Kesannya – Akta Perhubungan Perusahaan 1967,
s. 20(1A) Prosedur – Tindakan – YM meninggal dunia akibat kemalangan jalanraya – Sama ada waris sahnya boleh meneruskan prosiding ini bagi pihaknya – Peruntukan undang-undang – Penilaian peruntukan – Kesannya – Akta
Perhubungan Perusahaan 1967, s. 29 (ea) PEMBUANGAN KERJA Penghematan – Sama ada pemilihan YM oleh pihak syarikat di bawah
langkah penghematan telah dilakukan secara bona fide – Faktor-faktor yang
harus diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada
jawatan serta kerja YM di dalam syarikat tidak wujud lagi – Sama ada pihak
syarikat perlu memaklumkan beliau mengenai langkah penghematan yang
bakal dilakukan olehnya – Tindakan pihak syarikat terhadapnya – Apa ia
menunjukkan – Sama ada penamatan perkhidmatan YM telah dilakukan
secara adil dan bersebab Penghematan – YM diberhentikan kerja atas alasan penghematan – Sama
ada berjaya dibuktikan oleh pihak syarikat – Faktor-faktor yang harus
diambil kira – Keterangan yang dikemukakan – Kesannya – Sama ada
syarikat mengalami masalah kewangan – Sama ada pihak syarikat telah
bertindak secara bona fide – Sama ada pemberhentian kerja YM telah
dilakukan secara adil dan bersebab |
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