ILR Bulletin, Vol 05 2007
22 March 2007

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INDUSTRIAL LAW REPORTS ISSUE 2 of 2007

ADMINISTRATIVE LAW

Judicial review - Industrial Court award - Certiorari - Consequential order made remitting case for re-adjudication before another chairman of Industrial Court - Whether High Court could grant relief when it was not prayed for in application - Whether High Court entitled to grant relief pursuant to O. 53 r. 2(3) Rules of the High Court 1980
K A Sanduran Nehru Ratnam v. I-Berhad
Denis Ong (Court Of Appeal, Putrajaya) [2007] 1 ILR 257

Remedies - Certiorari, application for - Alleged dismissal of 2nd respondent by appellant - Appellant initially notified that 2nd respondent’s representations not referred to Industrial Court but subsequently informed that reference was to be made - Whether minister had made two decisions - Whether first letter contained a wrong decision and second letter was sent to correct that administrative slip - Whether minister at fault
Shelter Christian Fellowship For Aid And Welfare v. Menteri Sumber Manusia Malaysia & Anor
Siti Norma Yaakob (Court Of Appeal, Putrajaya) [2007] 1 ILR 299

Remedies - Certiorari and prohibition - Whether minister correctly exercised his discretion in referring claimant’s representations of unjust dismissal to Industrial Court for an award - Whether minister erred in law and acted in excess of jurisdiction - Jurisdiction of Industrial Court - Whether judge wrong in issuing orders of certiorari and prohibition
Menteri Sumber Manusia v. John Hancock Life Insurance (Malaysia) Bhd & Another Appeal
Mokhtar Sidin (Court Of Appeal, Putrajaya) [2007] 1 ILR 274

DISMISSAL

Abandonment - Claimant facing corruption charges - Orally told to go on leave pending completion of trial - Claimant subsequently acquitted - No evidence of instructions to take leave in company files - Company disputing that such instructions given - Both claimant and company failing to adduce any documentary or substantial evidence - Company failing to charge claimant with abandonment of employment - Effect of - Whether claimant had abandoned employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Pempena Sdn Bhd v. Ahmad Zubaidee Yusof Omar
(Tan Yeak Hui) [2007] 1 ILR 320

Breach of company rules and policies - Carelessness - Claimant not following company’s operating procedures - Cheques being issued to wrong parties - Claimant’s actions based on superior’s instructions - Effect of - Whether any financial gain by claimant - Whether company could prove embezzlement - Whether company’s reputation had been tarnished - Whether punishment meted out by company on claimant too harsh under the circumstances - Whether claimant’s previous clean record with the company for 20 years should have been taken into account - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mohd Shakri Mohamad v. Hong Leong Bank Bhd
(Syed Ahmad Radzi Syed Omar) [2007] 1 ILR 448

Constructive dismissal - Salary - Company failing to pay claimant outstanding dues - Company failing to respond to claimant’s queries with regards to his future in the company - Whether proper - Whether company acted reasonably - Whether constructive dismissal proven - Whether fundamental breach of terms of employment - Whether claimant waived breach - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Ravi Chanthran S Sithambaram v. Pelita Akademi Sdn Bhd
(Fredrick Indran X A Nicholas) [2007] 1 ILR 475

Constructive dismissal - Status - Claimant holding shares in 3rd party company - Reasons for - Whether holding of shares for benefit of company - Intention of claimant - Whether a conflict of interest arose - Memo on conflict not circulated to claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Ravi Chanthran S Sithambaram v. Pelita Akademi Sdn Bhd
(Fredrick Indran X A Nicholas) [2007] 1 ILR 475

Misconduct - Claimant counter staff - Ignoring customer at counter to help co-worker - Giggling and talking to co-worker whilst keeping customer waiting - Contrary to training given by company - Query raised by customer within claimant’s knowledge - Whether claimant’s action of referring customer to the information counter was a relegation of her duty - Claimant claiming that she was busy - Whether proven - Effect of - Whether claimant’s co-worker partly to blame - Conduct of co-worker - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Resort World Berhad v. Normah Yakub
(Soo Ai Lin) [2007] 1 ILR 507

Misconduct - Claimant giving input on financial matters of competitor company - Prior written approval of company not obtained - Effect of - Whether input of claimant was pursuant to a job evaluation with a view of securing a job in the competitor company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Kvaerner Petrominco Engineering Sdn Bhd v. Virginia Jaqueline Chan
(Siti Saleha Abu Bakar) [2007] 1 ILR 494

Misconduct - Claimant submitting her CV to advance company’s competitors business - Claimant still in employ of company at the material time - Whether fundamental breach of term and conditions of service by claimant - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Kvaerner Petrominco Engineering Sdn Bhd v. Virginia Jaqueline Chan
(Siti Saleha Abu Bakar) [2007] 1 ILR 494

Misconduct - Proven by company - Whether the punishment of dismissal was too harsh under circumstances - Whether contributory conduct of the claimant’s co-worker glossed over by company - Whether should have been taken into account - Claimant was a first time offender - Whether claimant’s previous clean record with the company should have been taken into account - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Resort World Berhad v. Normah Yakub
(Soo Ai Lin) [2007] 1 ILR 507

Insubordination - Failure to follow company’s instructions in filling up of time sheets - Resulting in losses to the company - Company unable to seek reimbursements from contractual party - Company advising claimant numerous times - Going unheeded - Effect of - Claimant failing to comply despite advise - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Intraline Resources Sdn Bhd v. Mohamad Shah Gubah Ahmad
(Chew Soo Ho) [2007] 1 ILR 393

Insubordination - Whether claimant came under definition of employee under Employment Act 1955 - Interpretation of claimant and company on number of working hours per day different - Claimant agreeing to be bound by terms in addendum - Claimant had previously done work for third party contractor before - Whether claimant deemed to have knowledge of working hours of third party - Working hours of claimant consistently 10 hours per day except for one or two occasions - Whether claimant’s argument that he was subject to 8 hour days was valid - Whether fundamental breach of terms of contract by claimant - Whether dismissal without just cause and excuse - Paragraph 2(3) First Schedule, ss. 2, 60A (1)(a), 60A (1)(b), 60A(1)(c) and 60A(1)(d) Employment Act 1955
Intraline Resources Sdn Bhd v. Mohamad Shah Gubah Ahmad
(Chew Soo Ho) [2007] 1 ILR 393

Performance - Unsatisfactory performance - Claimant told to buck-up vide e-mails - Going unheeded - Warning letter issued - Effect of - Claimant contending insufficient training given - Claimant with unit for over a year - Many review appraisals conducted - Claimant failing to improve performance - Effect of - Whether claimant was victimised - Intention of immediate superior - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Citibank Berhad v. Cheng Kam Choy
(Amelia Tee Hong Geok Abdullah) [2007] 1 ILR 332

Retrenchment - Redundancy - Company outsourcing IT business of company to third parties to be more cost effective - Effect of - Whether done bona fide - Company suffering losses - Whether claimant could determine management prerogative - Claimant sole staff in EDP department - Whether her services were essential - Whether her position had become redundant - No replacement of the claimant’s position todate - Whether claimant’s job functions still in existence - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mechmar Corporation (Malaysia) Bhd v. Elizabeth Kamalam Tegaraj
(Sauffee Afandi Mohamad) [2007] 1 ILR 367

Retrenchment - Redundancy - Whether company under an obligation to give prior warning to staff prior to retrenchment - Company policy - Effect of - Claimant holding a position of high risk - Previous actions of company in prior retrenchment exercises - Effect of - Whether company obliged to find claimant alternative employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mechmar Corporation (Malaysia) Bhd v. Elizabeth Kamalam Tegaraj
(Sauffee Afandi Mohamad) [2007] 1 ILR 367

Retrenchment - Restructuring - Claimants accepting retrenchment benefits without objection - Then bringing reference to court - Whether claimants had come to court with clean hands - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Alfred Ak Galin & 10 Ors v. The Sarawak Club
(Muniandy Kannyappan) [2007] 1 ILR 304

Retrenchment - Restructuring - Claimant outsourcing business of company to third parties - Whether job functions of claimants were surplus to requirements of the company - Effect of - Whether restructuring done bona fide - Whether victimization by company - Code of Conduct for Industrial Harmony not adhered to - Whether Code of Conduct For Industrial Harmony had to be adhered to - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Natseven TV Sdn Bhd v. Shahirman Sahalan & 21 Ors
(Soo Ai Lin) [2007] 1 ILR 413

Retrenchment - Restructuring - Club outsourcing and privatising bar business to third parties - Claimants offered new terms of employment in new company - Rejection of such offer - Effect of - Whether claimants contributed to the redundancy of their positions - Whether restructuring done bona fide - Whether victimization by company - Code of Conduct for Industrial Harmony - Whether adhered to - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Alfred Ak Galin & 10 Ors v. The Sarawak Club
(Muniandy Kannyappan) [2007] 1 ILR 304

Retrenchment - Restructuring - Company retaining expatriate staff who were more costly to maintain - Intention of company in taking in expatriate staff - Fixed term contract - Whether reasonable for company to allow those contracts to come to conclusion - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Natseven TV Sdn Bhd v. Shahirman Sahalan & 21 Ors
(Soo Ai Lin) [2007] 1 ILR 413

Retrenchment - Redundancy - Reorganization of business - Right of company to reorganize business - Company not facing financial difficulties - Claimant’s performance not in issue - Claimant not issued with verbal or written warning prior to retrenchment letter - Effect of - No reasons advanced by company as to why reorganization exercise carried out - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Otis Elevator Company (M) Sdn Bhd v. Sim Ah Geok
(Amelia Tee Hong Geok Abdullah) [2007] 1 ILR 433

EVIDENCE

Burden of proof - On company to prove redundancy - Whether evidence of company re-organization sufficient to satisfy burden - Whether re-organization was done bona fide - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Otis Elevator Company (M) Sdn Bhd v. Sim Ah Geok
(Amelia Tee Hong Geok Abdullah) [2007] 1 ILR 433

Burden of proof - Whether on claimant to prove that he was instructed to go on leave or on company to prove abandonment of job - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & Evidence Act 1950 ss. 101, 102 and 103
Pempena Sdn Bhd v. Ahmad Zubaidee Yusof Omar
(Tan Yeak Hui) [2007] 1 ILR 320

Witness - Conflicting evidence by claimant - Whether to be taken into account - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mechmar Corporation (Malaysia) Bhd v. Elizabeth Kamalam Tegaraj
(Sauffee Afandi Mohamad) [2007] 1 ILR 367

INDUSTRIAL COURT

Jurisdiction - Whether court had jurisdiction to hear the matter - Whether challenge to threshold jurisdiction could be made by way of preliminary objection - Intention of legislature - No application for certiorari to quash Minister’s reference - Effect of - Industrial Relations Act 1967 s. 20(1)
Muhammad Rafek Izzat Jamaluddin & Anor v. Azman Hamzah Plastik Sdn Bhd
(Amelia Tee Hong Geok Abdullah) [2007] 1 ILR 315

Procedure - Parties - Joinder - Application to join managing director in personal capacity to proceedings - Whether the managing director was the alter ego of the company - Who was the employer of the claimant - Whether corporate veil could be lifted - In what capacity did the managing director represent the interests of the company - Industrial Relations Act 1967, s. 20(3)
Wasaru Sdn Bhd v. Lee Lem
(Sauffee Afandi Mohamad) [2007] 1 ILR 389

Remedies - Compensation in lieu of reinstatement - Backwages - How computed - Factors to take into account - Post dismissal employment and earnings - Effect of - How quantum arrived at - Industrial Relations Act 1967, ss. 20(3), 30(5)
Dr P Le Fras Nortier Rooibos Museum Sdn Bhd v. Yap Hooi Koon
(Chew Soo Ho) [2007] 1 ILR 356

Remedies - Reinstatement - How arrived at - Evidence of both claimant and company insufficient to arrive at decision - Whether benefit of doubt should be given to the claimant - Intention of the Industrial Relations Act 1967 - Industrial Relations Act 1967
Pempena Sdn Bhd v. Ahmad Zubaidee Yusof Omar
(Tan Yeak Hui) [2007] 1 ILR 320

Remedies - Reinstatement - Whether reinstatement proper remedy - Probationer claimant - Whether claimant on same footing as confirmed employee - Same footing of claimant as a probationer and a confirmed employee limited to whether or not dismissal was with just cause and excuse - Effect of - Industrial Relations Act 1967, ss. 20(3), 30(5)
Dr P Le Fras Nortier Rooibos Museum Sdn Bhd v. Yap Hooi Koon
(Chew Soo Ho) [2007] 1 ILR 356

LABOUR LAW

Industrial Court - Award - Certiorari - Appeal against High Court order - Whether Industrial Court exercised function of criminal court in determining misconduct of employee - Whether function of Industrial Court to determine only whether misconduct was in fact committed by employee - Whether finding of facts supported by evidence - Whether High Court correct in allowing application for certiorari - Rules of the High Court 1980, O. 53 r. 2(3)
K A Sanduran Nehru Ratnam v. I-Berhad
Denis Ong (Court Of Appeal, Putrajaya) [2007] 1 ILR 257

Industrial Court - Award - Certiorari - Consequential order made remitting case for re-adjudication before another chairman of Industrial Court - Whether High Court could grant relief when it was not prayed for in application - Whether High Court entitled to grant relief pursuant to O. 53 r. 2(3) Rules of the High Court 1980
K A Sanduran Nehru Ratnam v. I-Berhad
Denis Ong (Court Of Appeal, Putrajaya) [2007] 1 ILR 257

Industrial Court - Jurisdiction - Reference by minister of claimant’s representations of unjust dismissal to Industrial Court - Whether issue of claimant being a "workman" solely an issue for Industrial Court to decide - Whether claimant’s removal could not be subject to adjudication by Industrial Court - Whether exercise of discretion by minister correct
Menteri Sumber Manusia v. John Hancock Life Insurance (Malaysia) Bhd & Another Appeal
Mokhtar Sidin (Court Of Appeal, Putrajaya) [2007] 1 ILR 274

Industrial Court - Reference by minister - Alleged dismissal of 2nd respondent by appellant - Appellant initially notified that 2nd respondent’s representations not referred to Industrial Court but subsequently informed that reference was to be made - Certiorari - Whether minister had made two decisions - Whether first letter contained a wrong decision and second letter was sent to correct that administrative slip - Whether minister at fault
Shelter Christian Fellowship For Aid And Welfare v. Menteri Sumber Manusia Malaysia & Anor
Siti Norma Yaakob (Court Of Appeal, Putrajaya) [2007] 1 ILR 299

Industrial Court - Reference by minister - Whether minister correctly exercised his discretion in referring claimant’s representations of unjust dismissal to Industrial Court for an award - Whether minister erred in law and acted in excess of jurisdiction - Whether judge wrong in issuing orders of certiorari and prohibition
Menteri Sumber Manusia v. John Hancock Life Insurance (Malaysia) Bhd & Another Appeal
Mokhtar Sidin (Court Of Appeal, Putrajaya) [2007] 1 ILR 274

NON-COMPLIANCE

Collective Agreement - Articles on retrenchment benefits and bonuses - Definition of wages - Whether inclusive of service charge - Intention of parties - Whether retrenched employees entitled to pro-rata bonus - Whether hotel had complied with terms of the Collective Agreement - Effect of - Industrial Relations Act 1967, s. 56(1) & Employment Act 1955
National Union Of Hotel, Bar & Restaurant Workers Peninsular Malaysia v. Thr Hotel (Langkawi) Sdn Bhd
(Siti Saleha Abu Bakar) [2007] 1 ILR 457

Collective Agreement - Interpretation of Collective Agreement and Articles - Preliminary objection raised by company - Whether union had locus standi to represent workers - Workers seconded to different company - Company which is party to reference wound-up - Effect of - The lifting of the corporate veil - Whether appropriate under circumstances - Whether new company party to the Collective Agreement - Whether new company was the successor, assignee and/or transferee of old company - Effect of secondment - Industrial Relations Act 1967, ss. 33(1), 17(1)(a)
Aero Manufacturing Sdn Bhd, Selangor v. Kesatuan Kebangsaan Pekerja- pekerja Syarikat-syarikat Pembuatan Keluaran Getah
(Umi Kalthum Abdul Majid) [2007] 1 ILR 464

CASE OF THE WEEK

MECHMAR CORPORATION (MALAYSIA) BHD v. ELIZABETH KAMALAM TEGARAJ

DISMISSAL: Retrenchment - Redundancy - Company outsourcing IT business of company to third parties to be more cost effective - Effect of - Whether done bona fide - Company suffering losses - Whether claimant could determine management prerogative - Claimant sole staff in EDP department - Whether her services were essential - Whether her position had become redundant - No replacement of the claimant’s position todate - Whether claimant’s job functions still in existence - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)

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