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LATEST CASES (ILR Issue 1 of 2023) |
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SUBJECT INDEX ADMINISTRATIVE LAW Judicial review – Appeal against – Employee tested positive for drug but
never prosecuted in court – Initiation of disciplinary action with view for
dismissal – Subsequent letter stating termination of service based on public
interest – Whether employee under legitimate expectation that dismissal
would ensue and not termination on public interest – Whether employee’s
legitimate expectation was reasonable – Whether requirements under r. 49
of Public Officers (Conduct and Discipline) Regulations 1993 (‘Regulations’)
complied with – Whether Regulations could be adopted with modifications – Administration of Islamic Religious Affairs (Terengganu) Enactment 2001,
s. 45 Judicial review – Appeal against – Termination of service based on public
interest – Employee tested positive for drugs but never prosecuted in court – Termination of service pursuant to r. 7 of Public Officers (Conduct and
Discipline) Regulations 1993 – Whether requirements for effective
termination complied with – Whether requirement for medical certification
mandatory – Whether non-compliance with procedure amounted to illegality
and procedural impropriety Judicial review – Application for – Application for judicial review against
decisions made in disciplinary proceedings – Applicant found guilty of act
amounting to ‘professional conduct’ within meaning under r. 2 of Malaysian
Institute of Accountants (Disciplinary) Rules 2002 made under Accountants
Act 1967 – Challenge against decisions of Disciplinary Committee and
Disciplinary Appeal Board – Whether decisions tainted with illegality,
procedural impropriety, irrationality and disproportionality – Whether
decisions ought to be quashed DISMISSAL Absenteeism – Whether the claimant had been absent from work – Factors
to consider – Evidence adduced – Effect of – Whether proven by the
company against her – Whether it had justified her dismissal Constructive dismissal – Claimant issued a show cause letter by SGB, the
parent company, and not his employer – Whether he had been under an
obligation to respond to it – His actions thereafter and the company’s
responses – What it had shown – Whether the company’s actions/inaction
had amounted to a breach of the fundamental terms of the employment
contract that had entitled him to walk out claiming constructive dismissal – Whether he had successfully proven that he had been constructively
dismissed – Whether dismissal without just cause and excuse Misconduct – Claimant failing to alert and/or notify the company of the
news article – Whether she had been under an obligation to do so – Whether
it had amounted to misconduct – Factors to consider – Evidence adduced – Effect of – Position held by the claimant in the company – Effect of – Whether the allegation had successfully been established against her – This
ground not being relied on by the company to terminate her – Effect of – Whether it had justified her dismissal – Whether dismissal without just cause
and excuse Misconduct – Claimant refusing to hand over the land title documents for
the Said Land – Whether it had constituted misconduct on his part – Factors
to consider – Evidence adduced – Effect of – His explanations – Whether
acceptable – Whether it had justified his termination from employment Misconduct – Whether the claimant had been recalcitrant or uncooperative
with the Interim Liquidators – Factors to consider – Evidence adduced – Effect of – Company’s actions towards her – What it had shown – Whether
the claimant, as an employee, had any power to make any decision on behalf
of the company – Whether the allegation had successfully been proven
against her – Whether it had justified her dismissal Misconduct – Whether the claimant had been uncooperative in assisting the
company to resolve the WRO issue – Factors to consider – Evidence
adduced – Effect of – Actions taken by the company – What it had shown – Position of the claimant in the company – Effect of – Whether the company
had suffered loss – Claimant possessing a pristine disciplinary record – Whether the allegation had successfully been established against her – Whether it had justified her dismissal Misconduct – Whether the claimant had intentionally defrauded the
company by tendering false credentials of his academic qualifications to
secure the job – Factors to consider – Evidence adduced – Effect of – Claimant’s explanations and defence – Whether could be accepted – Effect
of – Company’s actions towards him – Whether the company had delayed
doing the necessary on its part – What it had shown – Whether the charge
had been successfully proven against him – Whether it had amounted to a
material breach of his employment contract – Whether it had warranted his
dismissal Misconduct – Whether the claimant had intentionally defrauded the
company by tendering false credentials of his academic qualifications to
secure the job – The way in which the company had conducted the
investigation – Whether it had left a lot to be desired – What it should have
done instead – Effect of – Whether the charge had been proven against the
claimant – Whether it had warranted his dismissal – Whether dismissal
without just cause or excuse Misconduct – Whether the claimant had taken active steps to obstruct the
Interim Liquidator’s efforts to resuscitate the company’s business – Factors
to consider – Evidence adduced – Effect of – Her position in the company Notice of termination – Forced resignation – Whether the 217 former
employees, who had all been unionised members, had been forced to resign
by the company – Factors to consider – Evidence adduced – Effect of – What
the conduct of the 217 former employees had shown – Company’s actions
towards them – Effect of – Whether forced resignation successfully proven
by the union Retrenchment – Redundancy – Whether the 217 former employees had been
made redundant by the company – Factors to consider – Evidence adduced – Effect of – The effect of their voluntary resignations – Whether they had
been retrenched by the company and entitled to the retrenchment benefits
under art. 33 of the CA DOMESTIC INQUIRY Absence of – Whether it had rendered the company’s decision to terminate
her illegal – Factors to consider – Effect of EVIDENCE Documentary evidence – Findings of the DI – Whether it ought to be
produced in evidence – Factors to consider – Evidence adduced – Effect of – Company proceeding with the case de novo – Effect of – Whether the
claimant’s application for the production of the DI Notes ought to be allowed INDUSTRIAL COURT Procedure – Action – Setting aside – The Applicant applying to set aside the
subpoena issued against for mental health reasons – Whether it ought to be
allowed – Factors to consider – Evidence adduced – Effect of – Claimant’s
actions – What it had shown – Whether the Applicant had been a material
witness – Effect of – Industrial Relations Act 1967, s. 29 Remedies – Backwages – Claimant had 17 more months to complete on his
contract of employment – What would be a suitable amount to award him – Factors to consider – Industrial Relations Act 1967, Second Schedule Remedies – Compensation in lieu of reinstatement – Whether it ought to be
allowed – Factors to consider – Evidence adduced – Effect of TRADE DISPUTE Collective Agreement – Determination of whether the 217 former employees
had been entitled to the retrenchment benefits under art. 33 of the CA – Whether it had constituted a trade dispute – Factors to consider – Evidence
adduced – Effect of – Industrial Relations Act 1967, s. 30(4) Collective Agreement – Interpretation of article on retrenchment benefits – Whether awarding the 217 former employees retrenchment benefits would
unjustly enrich them – What unjust enrichment meant – Whether awarding
them the retrenchment benefits would be giving them double benefits, at the company’s expense – Factors to consider – Evidence adduced – Effect of – Whether it would be unconscionable and run contrary to ss. 30(4) and 30(5)
of the Act – Industrial Relations Act 1967, ss. 30(4) & 30(5) Collective Agreement – Terms and conditions of service – Articles on salary
structure and salary increment and on annual increment – Whether the
union’s proposal’s ought to be allowed – Factors to consider – Evidence
adduced – Effect of – Company’s financial performance – What it had
indicated – Companies’ actions towards its employees – Effect of INDEKS PERKARA PERTIKAIAN PERUSAHAAN Perjanjian Kolektif Pertama – Terma dan syarat – Artikel berkaitan dengan
cuti atas urusan kesatuan sekerja – Sama ada cadangan syarikat responden
harus dibenarkan – Faktor-faktor yang harus diambil kira – Keterangan yang
dikemukakan – Kesannya – Akta Perhubungan Perusahaan 1967, s. 6 Perjanjian Kolektif Pertama – Terma dan syarat – Artikel berkaitan dengan
jawatankuasa keselamatan dan kesihatan pekerjaan – Sama ada cadangan
pihak kesatuan harus dibenarkan – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Akta Keselamatan Kesihatan
Pekerja 1994, s. 30 Perjanjian Kolektif Pertama – Terma dan syarat – Artikel-artikel berkaitan
dengan kewangan seperti penyelarasan gaji dan elaun insentif – Sama ada
cadangan pihak kesatuan harus dibenarkan – Faktor-faktor yang harus
diambil kira – Keterangan yang dikemukakan – Kesannya – Akta
Perhubungan Perusahaan, s. 30(4) Perjanjian Kolektif Pertama – Terma dan syarat – Artikel berkaitan dengan
pengiktirafan kesatuan – Sama ada cadangan pihak kesatuan harus
dibenarkan – Faktor-faktor yang harus diambil kira – Keterangan yang
dikemukakan – Kesannya – Akta Perhubungan Perusahaan 1967, ss. 4(1)
& 5(1) Perjanjian Kolektif Pertama – Terma dan syarat – Artikel berkaitan dengan
prosedur rungutan am – Sama ada cadangan pihak kesatuan harus dibenarkan – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya Perjanjian Kolektif Pertama – Terma dan syarat – Artikel berkaitan dengan
tarikh kuatkuasa, tempoh dan perlaksanaan – Sama ada cadangan syarikat
responden harus dibenarkan – Faktor-faktor yang harus diambil kira – Keterangan yang dikemukakan – Kesannya – Akta Perhubungan Perusahaan,
s. 30(7) |
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