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LATEST CASES (ILR Issue 4 of 2023) |
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SUBJECT INDEX ADMINISTRATIVE LAW Exercise of judicial functions – Certiorari – Application to quash decision of
Minister in refusing to refer applicant’s representation to Industrial Court for
adjudication under s. 20(3) of Industrial Relations Act 1967 – Dispute
between employee and employer – Whether within purview of Minister to
adjudicate on dispute – Whether tantamount to excess of power – Whether
dispute contained questions of facts and law which ought to be left to
Industrial Court to decide – Whether applicant ought to be afforded fair trial – Federal Constitution, art. 5(1)
CIVIL PROCEDURE Pleadings – Constructive dismissal – Employer paid employee Employee
Separation Scheme (‘ESS’) payment – Employee accepted without any
qualification and/or conditions but later lodged representations under s.
20(3) of Industrial Relations Act 1967 – Submission of constructive dismissal – Whether issue of constructive dismissal pleaded – Whether afterthought
Trial – Ex parte hearing – Claim by employee for reinstatement to original
position – Employee’s service terminated – Absence of employer during
hearing
CONTRACT Employment contract – Breach – Employee only attended work for eight
days and later failed to turn up without giving any reasons – Whether
employee in breach of employment contract – Whether employee dismissed
from employment – Whether employee proved claim – Whether employer’s
evidence ought to accepted as true due to employee’s constant absence at date
and time fixed by court – Employment Act 1955, s. 15(2)
Employment contract – Terms – Breach – Allegations by employee that he
was constructively dismissed – Victimisation – Whether allegations proven – Whether supported by evidence – Whether there was breach of
employment contract by employer
Employment contract – Wages – Non-payment by employer – Whether
presiding officer right in deciding employer had duty to pay wages to
employees
EVIDENCE Documentary evidence – Cessation of employment – Employee Separation
Scheme – Employer paid employee Employee Separation Scheme (‘ESS’)
payment – Employee accepted without any qualification and/or conditions
but later lodged representations under s. 20(3) of Industrial Relations Act
1967 – Allegations that ESS not signed on employee’s own freewill and
volition and obtained under duress – Whether allegations supported by
evidence – Whether documentary evidence pointed towards voluntariness of
employee
Documentary evidence – Employment – Retrenchment of employee due to
redundancy in position – Allegation of financial deterioration – Whether
retrenchment exercise by employer bona fide – Whether employer adduced
evidence to support claim of financial deterioration – Whether retrenchment
of employee justified
LABOUR LAW Dismissal – Constructive dismissal – Allegations by employee that he was
constructively dismissed – Victimisation – Whether allegations proven – Whether supported by evidence – Whether there was breach of employment
contract by employer – Whether employee constructively dismissed by
employer without just cause or excuse
Dismissal – Misconduct – Allegations of falsifying medical certificate – Employee dismissed from employment – Alteration to date of medical
certificate – Attestation and memo by medical officer who issued medical
certificate – Whether medical certificate illegally altered – Whether
dismissal tainted with mala fide – Whether unfair dismissal
Dismissal – Misconduct – Failure to provide reasonable explanation
regarding missing parts in inventory – Employee dismissed from
employment – Whether dismissal with just cause or excuse
Dismissal – Misconduct – Insubordination and failure to follow superior’s
instructions – Breach of fundamental duty to employer – Employee
dismissed from employment – Whether dismissal with just cause or excuse
Dismissal – Misconduct – Late-coming to work – Employee served
company as manager – Employee dismissed from employment – Whether
dismissal with just cause or excuse
Dismissal – Retrenchment – Department that employee/claimant was in had
to be closed down – Claimant offered alternative position in company and
asked to choose position offered – Allegations that claimant made to sign
resignation letters without knowing contents of letters – Whether proven – Whether claimant voluntarily resigned – Whether retrenched – Whether
dismissal done with just cause or excuse – Whether claimant came to court
with unclean hands – Management prerogative of transferring employee to
another place – Whether move to transfer claimant actuated by malice
Employment – Cessation – Employee Separation Scheme – Employer paid
employee Employee Separation Scheme (‘ESS’) payment – Employee
accepted without any qualification and/or conditions but later lodged
representations under s. 20(3) of Industrial Relations Act 1967 – Allegations
that ESS not signed on employee’s own freewill and volition and obtained
under duress – Whether there was duress – Whether there was consensus ad
idem between employee and employer when ESS was executed – Whether
allegations supported by evidence – Whether employee’s conduct and/or
actions consistent with voluntary acceptance of ESS
Employment – Employee – Claim under Employees’ Social Security Act
1969 (‘Act’) consequent to accident – Whether employee entered into
contract for service or of service – Whether fitted scope and definition of
word ‘employee’ under s. 2(5) of Act – Whether Social Security Organisation (‘SOCSO’) has power to decide status of employment – Whether decided
based on proper investigation – Whether SOCSO Appellate Board correctly
decided that employee was engaged under contract of service
Employment – Termination – Forced resignation – Allegation by employee
that he was forced to resign – Allegations that employer had embarked on
series of actions against claimant to force him out of company – Whether
proven – Claimant negotiated terms of resignation and received payment by
company – Whether claimant could be said to have been forced to resign
Industrial Court – Reference by Minister – Minister’s exercise of discretion – Dispute between employee and employer – Whether within purview of
Minister to adjudicate on dispute – Whether tantamount to excess of power – Whether dispute contained questions of facts and law which ought to be
left to Industrial Court to decide – Whether applicant ought to be afforded
fair trial – Federal Constitution, art. 5(1)
Jurisdiction – Director General of Labour – Employees Indian nationals – Non-payment of wages by employer – Several employees expressed wish to
return to home country expeditiously and forego complaints – Presiding
officer proceeded to inquire on complaints and ordered employer to pay
unpaid wages to employees – Whether presiding officer seized with
jurisdiction and power to further investigate and decide on complaints
despite withdrawal of complaints by several employees – Employment Act
1955, s. 69 Retrenchment – Redundancy in position – Claim by employee for
reinstatement to original position – Employee’s service terminated via phone
call and WhatsApp message – No prior notice – Whether retrenchment
exercise by employer bona fide – Whether reinstatement to original position
appropriate remedy
TRADE DISPUTE Collective agreement – Terms and conditions – Articles – Dispute on articles
pertaining to duration and termination of collective agreement, meal
allowance and salary revision – Proposals ought to be accepted – Factors
considered – Industrial Relations Act 1967, s. 14(2)(b)
INDEKS PERKARA KONTRAK Pelanggaran – Kontrak pekerjaan – Perpindahan jabatan – Pekerja tidak
bersetuju dipindahkan ke jabatan lain dan meletak jawatan – Sama ada
majikan mempunyai budi bicara membuat pertukaran/perpindahan pekerja – Sama ada pertukaran/perpindahan bertentangan dengan kontrak pekerjaan – Sama ada majikan perlu memaklumkan pekerja terlebih dahulu sebelum
pertukaran/perpindahan dilakukan
UNDANG-UNDANG BURUH Perkerjaan – Penamatan – Perpindahan jabatan – Pekerja tidak bersetuju
dipindahkan ke jabatan lain dan meletak jawatan – Sama ada pertukaran/perpindahan ke jabatan lain berbaur niat jahat atau penindasan – Sama ada
terdapat penamatan secara terancang
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