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LATEST CASES (ILR Issue 9 of 2023) |
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SUBJECT INDEX ADMINISTRATIVE LAW Judicial review – Challenge against decision of Industrial Court –
Proportionality of punishment – Employee charged with 13 charges
pertaining to abuse of position and authority, violation of employer’s policy
and failing to act in best interest of employer – Domestic inquiry found
employee guilty of charges – Employee dismissed with immediate effect –
Industrial Court found that although employee guilty of certain charges,
punishment of dismissal was not warranted – Industrial Court held that
employee was dismissed without just cause and excuse – Whether
misconduct grave and serious – Whether punishment proportionate to
misconduct of employee Judicial Review – Challenge against decision of Industrial Court – Employee
charged with 13 charges pertaining to abuse of position and authority,
violation of employer’s policy and failing to act in best interest of employer
– Domestic inquiry found employee guilty of charges – Employee dismissed
with immediate effect – Industrial Court found that although employee guilty
of certain charges, punishment of dismissal was not warranted – Industrial
Court held that employee was dismissed without just cause and excuse –
Whether Industrial Court asked itself wrong questions – Whether Industrial
Court considered irrelevant matters and failed to consider relevant matters
– Whether Industrial Court applied proper principles of law – Whether
Industrial Court reached decision that was so perverse that no reasonable
tribunal under similar circumstances would have reached – Whether
decision of Industrial Court tainted with error of law, irrationality and/or
unreasonableness CONTRACT Employment contract – Contract for services – Company entered into
contract with third party for provision of general and specialist manpower
services for company – Third party to provide individuals as contractors to
perform certain functions for company – Claimant provided by third party
to company and was emplaced in company – Claimant’s performance below
expectations and company ceased claimant’s emplacement – Whether
contract for services entered between claimant and company or claimant and
third party – Whether claimant workman/employee of company – Whether claimant independent contractor under contract for services with third party
– Whether claimant ought to pursue action against company or third party
– Industrial Relations Act 1967, s. 2 Employment contract – Dispute – Contractual dispute – Oral collateral
contract – Change of position from general manager to consultant of
company – Deduction of salary – Whether contemporaneous documents
supported or collaborated existence of oral contact – Whether there existed
any representation or promises made by company to return or refund
deducted salaries – Whether plaintiff accepted designation as consultant and
ad hoc consultant fees without objection – Whether there was undue influence
or coercion – Doctrine of estoppel – Whether applicable – Whether claim
time-barred by doctrine of limitation Employment contract – Fixed term contract – Claimant entered into fixed
term contract with company and contract renewed several times without
break – Claimant’s contract not renewed – Whether employment contract
between parties genuine fixed term employment contract – Whether
contract came to natural end – Whether claimant aware and agreed to terms
of employment contract – Whether there was break between renewal of
contracts – Whether cooling-off period between contract renewal sham –
Whether employment permanent employment dressed up as fixed term
employment Employment contract – Fixed term contract – Termination – Claimant
employed by Malaysian company and was based in Vietnam – Claimant
enjoyed two salary packages before being terminated on account of effluxion
of time – Real and main employer – Whether claimant employed by
Malaysian company or company based in Vietnam – Whether Malaysian
company had control over claimant’s employment – Whether employment
permanent – Whether fixed term contracts genuine fixed term contracts –
Whether cloaked in guise of fixed term contract – Whether employment
ended by way of effluxion of time LABOUR LAW Dismissal – Constructive dismissal – Date of alleged constructive dismissal
– Employee claimed to be constructively dismissed by employer – Court
faced with five different dates of alleged dismissal – Preliminary issue raised
as to whether there was ambiguity and/or uncertainty as to claimant’s actual
date of dismissal from employment with company – Whether preliminary
issue ought to be allowed Dismissal – Employer held mandatory health screening for all employees –
Domestic inquiry – Domestic inquiry commenced against employee –
Employee dismissed from employment for misconduct of using illicit drugs
– Whether dismissal done with just cause or excuse – Whether employee’s
misconduct severe enough to warrant dismissal – Whether employer
adduced convincing evidence for dismissal Dismissal – Retrenchment – Redundancy – Whether dismissal done with just
cause or excuse – Whether retrenched – Whether there were existing
circumstances justifying termination – Whether retrenchment exercise bona fide and fair labour practice – Whether reinstatement proper remedy Employment – Dismissal – Allegations of – Company entered into contract
with third party for provision of general and specialist manpower services for
company – Third party to provide individuals as contractors to perform
certain functions for company – Claimant provided by third party to
company and was emplaced in company – Claimant’s performance below
expectations and company ceased claimant’s emplacement – Whether there
was dismissal by company Employment – Dismissal – Claimant employed by Malaysian company and
was based in Vietnam – Claimant enjoyed two salary packages before being
terminated on account of effluxion of time – Whether fixed term contracts
genuine fixed term contracts – Whether cloaked in guise of fixed term
contract – Whether employment ended by way of effluxion of time –
Whether dismissal with just cause and excuse Employment – Dismissal – Claimant entered into fixed term contract with
company and contract renewed several times – Claimant’s contract not
renewed – Whether employment contract between parties genuine fixed term
employment contract – Whether contract came to natural end – Whether
claimant dismissed from employment Employment – Dismissal – Misconduct – Bribery and corruption –
Employee discovered to have received unauthorised commissions and
‘angpow’ from third party vendors – Employee dismissed from employment
– Whether charges proven – Whether employee dismissed with just cause or
excuse – Whether punishment of dismissal proportionate to misconduct INDUSTRIAL COURT Award – Non-compliance – Complainant dismissed by employer –
Industrial Court handed down award in favour of complainant – Complaint
on non-compliance of award ordering company to pay sums to complainant
– Whether non-compliance of award established – Industrial Relations Act
1967, s. 56(1) TRADE DISPUTE Collective agreement – Terms and conditions – Dispute – Change of working
hours of two categories of workers without discussing with and obtaining
consent of trade union – Change from split shift to double shift – Split shift
overtime allowance – Allegation that change of working hours caused
affected members to lose out on income INDEKS PERKARA UNDANG-UNDANG BURUH Pekerjaan – Pembuangan kerja – Pihak menuntut bekerja di China atas
arahan majikan – Pihak menuntut gagal/enggan kembali ke China usai
kembali ke Malaysia – Sama ada terdapat kebenaran/persetujuan oleh
majikan agar pihak menuntut menjalankan kerja secara talian dari Malaysia
dengan syarikat di China – Sama ada sifat kerja pihak menuntut
mengkehendaki keberadaannya secara fizikal di China – Sama ada terdapat
pembuangan kerja oleh syarikat – Sama ada pihak menuntut sendiri yang
meninggalkan perkhidmatannya |
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