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LATEST CASES (ILR Issue 12 of 2023) |
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SUBJECT INDEX CIVIL PROCEDURE Trial – Language – Claim at Industrial Court – Claimant dismissed from
employment due to poor performance – English language used throughout
examination-in-chief, cross-examination and re-examination – Allegation by
claimant that he was prevented from using Bahasa Melayu in court during
trial – Court recording system by Industrial Court – Industrial Court Practice
Note No. 1 of 2013 – Whether, since witnesses had taken oaths in English
and testified in English, cross-examination and re-examination would have
to be conducted in English CONTRACT Employmen t con tract – Breach – Re-assignment and transfer –
Employee issued with warning following multiple conduct issues –
Employee re-assigned to new role – Whether there was variation or
amendments to employment contract – Whether employer had right to reassign
employee under employment contract – Whether there was breach of
employment contract Employment contract – Breach – Terms – Working days and hours –
Employee re-assigned to new role due to failure to observe working hours,
tardiness and frequent taking of leaves – Allegations by employee that he was
entitled to flexible hours and there was verbal agreement – Whether there
was verbal variation/amendment to employment contract – Whether verbal
variation/amendment put into writing – Whether there was breach of terms
of contract Employment contract – Breach – Transfer and re-designation – Change in
employee’s job scope – Material changes in working days and hours and
duties and responsibilities – Whether changes went to root of contract of
employment – Discrepancies in employment terms – Whether employer had
driven employee out of employment – Whether actions of employer tainted
with motive and mala fide – Whether employee victimised – Whether
employee had right to refuse offer – Whether option should be given and
consent should be obtained from employee – Whether employer’s act
cumulatively amounted to breach of fundamental and essential terms of
employment contract INDUSTRIAL COURT Jurisdiction – Claim for unlawful termination – Real and actual employer of
claimant when he was terminated – Whether claimant’s real and actual
employer made party to action – Whether Industrial Court seized with
jurisdiction to hear matter – Whether Industrial Court could give award
against party that was not made party to suit – Whether award by Industrial
Court could be binding to non-party – Industrial Relations Act 1967,
ss. 32(1)(a) & 52(1) LABOUR LAW Dismissal – Constructive dismissal – Re-assignment – Employee issued with
warning following multiple conduct issues – Employee
re-assigned to new role – Whether employer had right to re-assign employee
under employment contract – Whether re-assignment amounted to
constructive dismissal Dismissal – Poor performance – Employee dismissed from employment due
to poor performance – Whether employee warned about poor performance
– Whether there were show cause letters of written/verbal warnings issued
to employee – Whether employee accorded sufficient opportunity to
improve – Whether employer took measures to aid in improvement of
employee – Whether notwithstanding steps taken by employer, employee
failed to sufficiently improve performance – Whether poor performance
established – Whether dismissal with just cause or excuse Employment – Dismissal – Constructive dismissal – Non-payment of salary
– Company facing financial challenges – Claimant founder, shareholder and
director – Claimant not paid salary and considered himself constructively
dismissed – Whether claimant ‘workman’ – Whether there was constructive
dismissal Employment – Dismissal – Constructive dismissal – Notice – Non-payment
of salary – Company facing financial challenges – Claimant founder,
shareholder and director – Claimant not paid salary and considered himself
constructively dismissed – Whether there was sufficient notice given by
claimant to company in order for company to remedy situation Employment – Dismissal – Constructive dismissal – Transfer and
re-designation – Change in employee’s job scope – Employer failed to
provide employee with job description – Uncertainties and discrepancies
over tasks, duties and responsibilities expected of employee – Employee
refused to accept offer – Whether employee in defiance of company and in
wilful insubordination – Whether employee constructively dismissed Employment – Dismissal – Misconduct – Fighting at workplace – Employee
works in customer service at shopping mall – Employee approached and
reminded individuals for not wearing masks during COVID-19 pandemic –
Disagreement between employee and individuals turned into fight –
Employee dismissed from employment for misconduct of fighting at
workplace – Whether employee dismissed with just cause or excuse –
Whether employee acted in self-defence – Whether serious misconduct that
warranted dismissal – Whether punishment of dismissal manifestly harsh and
disproportionate to misconduct – Whether decision of employer to dismiss
employee mala fide Employment – Dismissal – Misconduct – Misrepresentation – Claimant
highest-ranking employee – Acting head of company – Discovery that
claimant had family relationship with Group Chief Financial Officer ('GCFO') – GCFO suspended due to investigation on allegations of possible
financial mismanagement and breach of fiduciary duty – Claimant dismissed
from employment after discovery of family relationship with GCFO –
Whether claimant dismissed with just cause and excuse Employment – Dismissal – Poor performance – Employee performed below
minimum expectation – Employee given eight chances and opportunities to
improve – Employee continued to perform poorly – Whether employee fully
aware of what was required of him – Whether employee fully capable of
judging himself whether he was performing satisfactorily – Whether
employee had been warned by employer about his poor work performance
and attitude – Whether employee accorded sufficient opportunity to improve
on work performance – Whether employee failed to sufficiently improve on
work performance despite opportunity given by employer – Whether
dismissal done with just cause and excuse – Whether dismissal tainted with
mala fide Employment – Probation – Forced resignation – Allegation by probationer
that he was forced to resign – Status of probationer – Whether confirmed as
permanent staff – Whether there was dismissal – Whether merely situation
where probationary period had come to end – Right of employer to terminate
during probationary period Employment – Resignation – Whether resignation takes effect on date letter
of resignation was submitted or after last date of employee’s working day Employment – Retrenchment – Employee retrenched from employment –
Employer cited financial difficulties and cost-cutting as reasons for
retrenchment – Whether there existed circumstances which justified
retrenchment exercise – Whether employer acted bona fide in retrenching
employee Employment – Salary – Non-payment – Company facing financial
challenges – Claimant founder, shareholder and director – Claimant not paid
salary and considered himself constructively dismissed – Whether claimant
‘workman’ – Whether there was permanent intention of company to deny
claimant his salary – Whether there was forfeiture of claimant’s salary –
Whether there was mere delay in payment of salary – Whether there was
constructive dismissal Employment – Dismissal – Victimisation – Claimant summarily terminated
just under two months during probation period – Whether claimant
victimised – Whether employer’s actions calculatedly oppressive, selective
and unfair – Whether employer’s actions premeditated and in bad faith –
Whether claimant denied of entitlement to livelihood that was originally
assured in employment letter TRADE DISPUTE Collective agreement – Bonus – Employee tendered resignation after
payment of bonus for financial year was effected – Employer reclaimed
annual bonus disbursed on employee by deducting amount from employee’s
salary to clawback annual bonus – Whether resignation took effect on date
letter of resignation was submitted or after last date of employee’s working
day – Whether employee still under employer’s employment after tendering
resignation – Whether employee served employer for 12 months of financial
year – Whether employee entitled to bonus – Whether employer’s action in
breach of collective agreement INDEKS PERKARA UNDANG-UNDANG BURUH Pekerjaan – Penamatan – Penamatan terancang – Gaji – Kegagalan majikan
membayar gaji selama empat bulan – Pekerja diarahkan oleh syarikat untuk
berhenti daripada meneruskan pekerjaan – Sama ada terdapat pemecatan –
Sama ada pemecatan dengan sebab dan alasan yang adil |
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