 |
||
|
||
LATEST CASES (ILR Issue 3 of 2023) |
||
|
SUBJECT INDEX ADMINISTRATIVE LAW Judicial review – Certiorari – Application for – Application for leave to apply
for order of certiorari to quash awards – Whether applicant correctly utilised
judicial review proceedings or ought to have filed appeal under s. 33C of
Industrial Relations Act 1967 (‘IRA’) – Whether representation referred to
Industrial Court by Minister – Whether reference made pursuant to s. 20(3)
of IRA as unamended – Industrial Relations (Amendment) Act 2020, s. 35 – Rules of Court 2012, O. 53 r. 3(2)
CIVIL PROCEDURE Stay of execution – Application for – Industrial awards handed down in
favour of employees – Whether employees have legitimate fear they may not
recover award sums from company – Whether granting of stay would
deprive employees of fruits of litigation – Whether conditional stay most
appropriate and fair order
CONTRACT Employment contract – Terms – Expatriation – Employee/claimant foreign
national employed by foreign company – Claimant entered into expatriate
agreement and placed in foreign company’s branch subsidiary in Malaysia – Claimant’s services terminated – Whether claimant employee of foreign
company or branch subsidiary – Whether payment of salary indicator of real
employer
Employment contract – Terms – Salary – Pay cut – Variation of term
pertaining to payment of salary – Consent of employee not obtained – Whether fundamental breach of employment contract by employer
Employment contract – Terms – Salary – Pay cut – Variation of term
pertaining to payment of salary – Consent of employee not obtained – Whether fundamental breach of employment contract by employer
Employment contract – Terms – Salary – Pay cut – Variation of term
pertaining to payment of salary – Consent of employee not obtained – Whether fundamental breach of employment contract by employer
Employment contract – Terms – Salary – Pay cut – Variation of term
pertaining to payment of salary – Consent of employee not obtained – Whether fundamental breach of employment contract by employer
INDUSTRIAL COURT Jurisdiction – Jurisdiction to hear matter – Employee/claimant foreign
national employed by foreign company – Claimant entered into expatriate
agreement and placed in foreign company’s branch subsidiary in Malaysia – Claimant’s services terminated – Whether contracts/agreements entered into
subject to Malaysian or foreign laws – Whether Industrial Court seized with
jurisdiction to hear matter
LABOUR LAW Constructive dismissal – Claim – Employee allegedly dismissed without just
cause and excuse by being forced to resign – Employee entered into
negotiations with employer and agreed on severance terms before tendering
resignation – Employer honoured terms agreed between parties – Employee
commenced claim at Industrial Court – Whether there was constructive
dismissal – Whether employee barred from claiming at Industrial Court – Whether employee could enter into severance package agreement with
employer and later claim for constructive dismissal at Industrial Court
Dismissal – Dismissal without just cause or excuse – Employee/claimant’s
employment contract terminated due to economic downturn – Downsized
operations in company – Whether employer adduced evidence that could be
deemed as just cause or excuse for termination of claimant’s employment – Whether employer discharged burden of proof on balance of probabilities – Whether claimant established dismissal without just cause or excuse – Whether claimant to be re-instated to former position
Dismissal – Misconduct – Sleeping during working hours while on duty – Employee/claimant found sleeping on two separate occasions – Claimant
cited health issues as reason – Claimant dismissed from employment – Whether medical evidence produced to support allegations of health issues – Whether sleeping during working hours serious misconduct – Whether
warrants dismissal – Whether punishment of dismissal appropriate and
proportionate
Dismissal – Reinstatement – Employee/claimant terminated from
employment – Status of claimant during termination – Whether probationer
or permanent staff – Whether employer proved on balance of probabilities
that dismissal was for just cause and fair reason – Whether reinstatement to
original position appropriate
Dismissal – Retrenchment – Employee/claimant retrenched from
employment due to redundancy – Employer’s restructuring exercise of
business – Allegations that department in which claimant had worked
continued to exist – Job scope and position taken over by junior employee
after claimant’s dismissal – Whether retrenchment exercise bona fide and fair
labour practice – Whether company observed ‘last in first out’ (LIFO)
principle – Whether claimant dismissed with just cause or excuse – Whether
reinstatement proper remedy
Dismissal – Retrenchment – Employee/claimant retrenched from position
due to closure of company – Claimant given condition to resign from current
position to join successor company with lower salary – Offer to join
successor company would be invalid should claimant refuse to resign – Claimant given RM1,000 as consolation money for serving 19 years with
company – Whether retrenchment justified – Whether grounds for
retrenchment true – Whether retrenchment motivated by bad faith – Whether claimant entitled to compensation – Whether dismissal with just
cause or excuse
Dismissal – Retrenchment – Redundancy – Restructuring exercise of
business – Allegations that department in which claimant had worked
continued to exist – Job scope and position taken over by junior employee
after claimant’s dismissal – Whether retrenchment exercise bona fide and fair
labour practice – Whether health reasons actual reasons why claimant was
dismissed – Whether company observed ‘last in first out’ (LIFO) principle – Whether reason of COVID-19 pandemic justified retrenchment – Whether
claimant dismissed with just cause or excuse – Whether reinstatement proper
remedy
Employment – Termination – Notice – Employee/claimant terminated
without any notice – Whether termination lawful – Whether with just cause
and reason – Whether in accordance with employment contract – Whether
employer successful in rebutting claimant’s claim of unfair dismissal
TRADE DISPUTE Pay cut – Unilateral decision by employer/company – Pay cut of 50% for
one month and cancellation of all allowances previously paid to workers – Whether workers consulted – Whether consent of workers obtained before
pay cut implemented – Whether pay cut measures justified – Whether there
was fundamental breach of terms of employment
Pay cut – Unilateral decision by employer/company – Pay cut of 50% for
one month and cancellation of all allowances previously paid to workers – Whether workers consulted – Whether consent of workers obtained before
pay cut was implemented – Whether pay cut measures justified – Whether
there was fundamental breach of terms of employment
Pay cut – Unilateral decision by employer/company – Pay cut of 50% for
one month and cancellation of all allowances previously paid to workers – Whether workers consulted – Whether consent of workers obtained before
pay cut was implemented – Whether pay cut measures justified – Whether
there was fundamental breach of terms of employment
Pay cut – Unilateral decision by employer/company – Allegation that
workers/trade union members coerced and intimidated by company to sign
letter of consent for salary and allowance deduction – Whether workers
consulted – Whether consent of workers obtained before pay cut was
implemented – Whether pay cut measures justified – Whether there was
fundamental breach of terms of employment
INDEKS PERKARA UNDANG-UNDANG BURUH Pekerjaan – Lebihan – Penamatan pekerjaan susulan lebihan tenaga kerja – Penstrukturan semula syarikat – Pihak menuntut memohon dilantik semula
pada jawatan asal sebelum jawatan terakhir tanpa kehilangan apa-apa gaji,
perkhidmatan kekananan, keistimewaan atau manfaat – Sama ada jawatan
asal telah diisi – Sama ada jawatan terakhir masih wujud – Sama ada syarikat
wajar melaksanakan penamatan perkhidmatan mengikut prinsip ‘last in first
out’ (LIFO) – Sama ada syarikat mematuhi prosedur menurut etika
keharmonian industri – Sama ada penamatan pekerjaan pihak menuntut
dibuat secara bona fide
|
||
|
