ILR Bulletin, Vol 07 2007
26 April 2007

Print this page

CLJ Law MALAYSIA http://www.cljlaw.com

Introduction:
To get the most out of this law bulletin join CLJ Law Online now - http://www.cljlaw.com/registration.asp
Feel free to forward this to your colleagues. Get this bulletin as email by going to http://www.cljlaw.com/ilrsubscribefrm.asp

INDUSTRIAL LAW REPORTS ISSUE 3 of 2007

DISMISSAL

Attendance - Lateness - Attitude of claimant - Claimant admitting to not following company policy - Whether condoned by the respondent company - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Newmet Konsulten v. Tan Swee Gek
(Soo Ai Lin) [2007] 1 ILR 733

Breach of company rules and policies - Medical leave - Chits - Failure to submit - Claimant only submitting in Court on day of hearing - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Newmet Konsulten v. Tan Swee Gek
(Soo Ai Lin) [2007] 1 ILR 733

Breach of company rules and policies - Misappropriation of company funds - Criminal element - Industrial Court as an arbitral court - Functions of - Test to be satisfied - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Alias Haji Salleh v. TDM Plantation Berhad
(Rajendran Nayagam) [2007] 1 ILR 636

Breach of company rules and policies - Misappropriation of company funds - Funds not being able to be traced back to claimant - Claimant unable to account for funds - Whether computer error existed - Conduct of claimant - Whether claimant had discharged duties in fiduciary capacity - Effect of - Whether respondent took easy way out - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Josephine Banun Ak Pako v. Hong Leong Bank Berhad
(Muniandy Kannyappan) [2007] 1 ILR 521

Breach of company rules and policies - Misappropriation of company property - Conduct of claimant - Intention of claimant - Whether company’s actions in dismissing claimant bona fide - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
TM Cellular Sdn Bhd v. Mohd Yunus Abu Sari
(Zura Yahya) [2007] 1 ILR 608

Breach of company rules and policies - Negligence - Conduct of claimant in opening up savings account - Whether claimant had aided and abetted a third party in the opening up of a fictitious account for fraudulent purposes - Sequence of events - Claimant passing supporting documents to superior for approval - Superior not discharged - Whether superior contributed to the opening up of the fictitious bank account - Procedure of checks and balance put into place by company not followed - Whether superior should have been accountable - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Malayan Banking Berhad v. Muhamad Zafrin Omar
(Chew Soo Ho) [2007] 1 ILR 758

Breach of respondent company rules and policies - Claimant approving own claims and compound fines in contravention of the respondent company manual - Whether claimant acted in access of his authority - Claimant having knowledge of his breach as aforesaid - Effect of - Whether there was a contrary directive issued by the respondent company - Burden of proof - Whether benefit of doubt should be given to the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Johan Fibres Industries Sdn Bhd v. Lavindran Munusamy
(Chew Soo Ho) [2007] 1 ILR 697

Breach of respondent company rules and policies - Whether claimant’s claim for mileage and fuel were duplicate claims - Whether respondent company had taken the necessary steps to ascertain situation - Claimant using own car for official business - Whether condoned by the respondent company - Claimant failing to prove that respondent company car giving problems - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Johan Fibres Industries Sdn Bhd v. Lavindran Munusamy
(Chew Soo Ho) [2007] 1 ILR 697

Fixed term contract - Claimant’s medical condition was the reason for the non renewal of his contract - Whether reasonable under circumstances - Company taking all necessary steps to investigate claimant’s medical condition including carrying out medical investigations after the expiry of the contract - Effect of - Intention of company - Whether dismissal with just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Captain Robert H Haywood v. Malaysian Airlines System Bhd
(P Iruthayaraj D Pappusamy) [2007] 1 ILR 577

Fixed term contract - Claimant’s services terminated at expiry of term - No reasons adduced - Effect of - Claimant having knowledge that his contract was for fixed term - Mistaken belief by claimant that his employment was permanent - Effect of - Whether dismissal with just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Captain Robert H Haywood v. Malaysian Airlines System Bhd
(P Iruthayaraj D Pappusamy) [2007] 1 ILR 577

Fixed term contract - Whether claimant’s contract was a genuine fixed term contract - Intention of parties - Whether the granting of increments, bonuses etc by the company rendered the claimant’s employment as permanent - Claimant’s contract subject to fulfillment of certain pre-conditions - Claimants medical condition making fulfillment of pre-conditions impossible - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Captain Robert H Haywood v. Malaysian Airlines System Bhd
(P Iruthayaraj D Pappusamy) [2007] 1 ILR 577

Frustration of contract - Claimant’s medical injury making performance of his duties for the company impossible - Cause of the injury - Whether suffered in course of doing work for the company - Effect of - Claimant medically boarded out - Claimant not consulted - Claimant not offered alternative job with lighter duties - Whether company obliged to offer - Whether company had to follow recommendations of doctors with regards to claimant’s job functions - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Gopalakrishnan Vasu Pillai v. Goodyear Malaysia Berhad
(Mohd Amin Firdaus Abdullah) [2007] 1 ILR 618

Misconduct - Claimant being asked to perform errands for president’s wife - Claimant on approved annual leave at material time - Whether company could recall claimant during his leave to perform duties for the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Airod Sdn Bhd v. Doraiyah Munusamy
(Franklin Goonting) [2007] 1 ILR 644

Misconduct - Claimant being asked to perform errands for president’s wife - Whether part of claimant’s job functions - Claimant obliging such performance of tasks in past - Whether constituted acquiescence on his part - Whether previous conduct of claimant constituted an amendment to his terms and conditions of service - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Airod Sdn Bhd v. Doraiyah Munusamy
(Franklin Goonting) [2007] 1 ILR 644

Misconducts - Nine counts of gross misconduct - Misconducts cumulatively taken into account before decision to dismiss the claimant was made - Claimant only working for twenty days - Whether the company had given claimant sufficient opportunity to prove her suitability for the job - Claimants past work experience - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Newmet Konsulten v. Tan Swee Gek
(Soo Ai Lin) [2007] 1 ILR 733

Notice of termination - Forced resignation - Whether claimant was forced to resign - Resignation came from claimant - Claimant withdrawing resignation when his request for ex gratia payments were denied - Whether investigation carried out by the respondent company was done to get rid of the claimant - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Johan Fibres Industries Sdn Bhd v. Lavindran Munusamy
(Chew Soo Ho) [2007] 1 ILR 697

Notice of termination - Inadequate notice - Claimant not given prior written warnings on misconduct - Company verbally warning and counselling her only - Effect of - Whether written warning is a necessary prerequisite to termination - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Newmet Konsulten v. Tan Swee Gek
(Soo Ai Lin) [2007] 1 ILR 733

Notice of Termination - Inadequate notice - Employees handbook providing for notice period to be given to employees - Company failing to comply - Whether company’s actions reasonable - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Yap Wing Onn & Ors v. Ceram Tec Innovative Ceramic Engineering (M) Sdn Bhd
(Yamuna Menon) [2007] 1 ILR 657

Retrenchment - Company experiencing poor turnover - Company imposing cost cutting measures - Many retrenchment exercises carried out by company - Whether claimants aware of financial standings of company - Whether any mala fides on part of company in carrying out retrenchment exercise - Claimants not informed of company’s intention to retrench them - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Yap Wing Onn & Ors v. Ceram Tec Innovative Ceramic Engineering (M) Sdn Bhd
(Yamuna Menon) [2007] 1 ILR 657

Retrenchment - Company failing to follow LIFO principles - Whether mandatory to follow LIFO principles - Effect of - Whether reasons given by company for not following LIFO principles acceptable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Yap Wing Onn & Ors v. Ceram Tec Innovative Ceramic Engineering (M) Sdn Bhd
(Yamuna Menon) [2007] 1 ILR 657

DOMESTIC INQUIRY

Procedural Impropriety - Domestic Inquiry panel erroneously amending 2nd charge - Whether all pertinent evidence taken into consideration in doing so - Whether claimant’s mere denials coming up to proof - Claimant found guilty of lesser offence at Domestic Inquiry stage - Whether correct procedure - Whether criminal offence beyond the jurisdiction of the panel - Court relying on original 2nd charge - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Alias Haji Salleh v. TDM Plantation Berhad
(Rajendran Nayagam) [2007] 1 ILR 636

Procedural impropriety - Whether existed - Whether principles of natural justice had been applied - Conduct of panel - Whether claimant had been given chance to be heard - Mitigation read out before finding of guilt - Effect of - Whether prejudicial to claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967,
ss. 20(3) & 30(5)
Malayan Banking Berhad v. Muhamad Zafrin Omar
(Chew Soo Ho) [2007] 1 ILR 758

Procedural Impropriety - Whether rules of natural justice complied with - Whether there was mala fides on the part of the respondent company in conducting the DI - Whether claimant had been given sufficient time to answer the charges preferred against him - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Johan Fibres Industries Sdn Bhd v. Lavindran Munusamy
(Chew Soo Ho) [2007] 1 ILR 697

EVIDENCE

Admissions - Claimants evidence not challenged by respondent - Effect of - Claimants evidence at DI consistent with her evidence in Court - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Josephine Banun Ak Pako v. Hong Leong Bank Berhad
(Muniandy Kannyappan) [2007] 1 ILR 521

Burden of proof - Misappropriation - Criminal conduct - Consistency with the Penal Code - Whether element of dishonesty present - Whether respondent discharged burden – Penal Code ss. 24 & 403
Josephine Banun Ak Pako v. Hong Leong Bank Berhad
(Muniandy Kannyappan) [2007] 1 ILR 521

Documentary evidence - Findings of the Domestic Inquiry - Whether erroneous - Existence of system error corroborated by another witness - Panel failing to take into account - Effect of - Whether grave error by panel - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Josephine Banun Ak Pako v. Hong Leong Bank Berhad
(Muniandy Kannyappan) [2007] 1 ILR 521

Documentary evidence - Findings of the DI - Whether valid - Claimant not taking objection to it - Effect of - Whether DI notes were accurate as recorded - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Johan Fibres Industries Sdn Bhd v. Lavindran Munusamy
(Chew Soo Ho) [2007] 1 ILR 697

Witness - Competency to testify - Interpretation of the relevant law - Whether provisions of the law misconstrued - Industrial Relations Act 1967, s. 27
Kesatuan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. Limton Parts Manufacturer Sdn Bhd
(Zura Yahya) [2007] 1 ILR 669

Witness - Material contradictions and inconsistencies - Claimant found not to be a witness of truth - Effect of - Value to be attached to her testimony - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3) & 30(5), Evidence Act 1950 s. 114(g)
Newmet Konsulten v. Tan Swee Gek
(Soo Ai Lin) [2007] 1 ILR 733

INDUSTRIAL COURT

Jurisdiction - Whether Court can confer jurisdiction on itself - Whether PO a mere technicality - Contents of advice in Registrars letter - Effect of - Whether counsel should have sought clarification - Whether acceptance of one party to contents of said letter precluded the opposing party from raising an objection in Court - Industrial Relations Act 1967, s. 30(5)
Chestershire Training Centre v. Kornelia Amelia Biggs & Anor
(Zura Yahya) [2007] 1 ILR 547

Procedure - Action - Preliminary issue raised - Which party to start case - Claimant’s contract of employment governed by letter of appointment - No termination letter issued to claimant - Claimant working with company past the age of 55 - Company referring to unsigned contract stipulating that claimant would retire on particular date - Effect of that unsigned contract - Whether claimant had notice of it - Claimant rejecting company’s offer for extension of contract term as per unsigned contract - Whether claimant had abandoned contract of employment - Who had the burden of proving - Industrial Relations Act 1967 s. 20(3), Industrial Court Rules 1967 rule 2, 22, 29(g) and Rules of the High Court 1980 s. 35(4)
Mohamed Razally Abu Hassan v. Nepline Berhad
(Yamuna Menon) [2007] 1 ILR 686

Procedure - Action - Stay of action pending disposal of appeal - Company obtaining a restraining order under section 176(10) ("RO") of the Companies Act - Effect of - Whether the RO bound the court and claimant - Whether the claimant was a party to the RO - Whether leave of High Court required to proceed with matter - Whether Industrial Court was a Civil Court - Whether the court could proceed to hear the matter - Industrial Relations Act 1967 ss. 20 & 20(3), Companies Act 1965 ss. 176(10), 222, 226(3) & 263(2), National Land Code 1965, s. 263(2)D and Rules of the High Court 1980 Order 45 rule 7
Toh Bee Jit & Anor v. DKH Management Sdn Bhd
(Jalaldin Haji Hussain) [2007] 1 ILR 552

Procedure - Amendments to pleadings - Name of company incorrect - Amendment to name of company - Whether proper under circumstances - Whether reference could be thrown out on grounds that company wrongly stated - Industrial Relations Act 1967
Lanskap Sdn Bhd (Ladang Getah Risda Kg Awah) v. Kesatuan Kebangsaan Pekrja-pekerja Ladang (NUPW)
(Siti Saleha Abu Bakar) [2007] 1 ILR 675

Procedure - Ex parte proceedings - Award handed down by Court after hearing merits of case - Whether Court functus officio - Whether Court could set aside Award - Proper Recourse - Effect Of - Industrial Relations Act 1967, s. 33B
Chestershire Training Centre v. Kornelia Amelia Biggs & Anor
(Zura Yahya) [2007] 1 ILR 547

Remedies - Arrears in salary - How computed - Claimant failing to submit time sheets correctly - Whether claimant had to re-submit his time sheets in compliance with third party procedures - Effect of - Industrial Relations Act 1967, ss. 20(3), 30(6)
Intraline Resources Sdn Bhd v. Mohamad Shah Gubah Ahmad
(Chew Soo Ho) [2007] 1 ILR 682

Remedies - Reinstatement - Whether appropriate - Conduct of claimant - Practicality of remedy - Industrial Relations Act 1967
Josephine Banun Ak Pako v. Hong Leong Bank Berhad
(Muniandy Kannyappan) [2007] 1 ILR 521

Remedies - Reinstatement - Whether appropriate - Conduct of president of company - Practicality of remedy - Industrial Relations Act 1967
Airod Sdn Bhd v. Doraiyah Munusamy
(Franklin Goonting) 644

TRADE DISPUTE

Collective Agreement - Interpretation of Articles - Reference by Minister - Under what circumstances - Whether Industrial Court seized with jurisdiction upon referral to it - Whether provisions of Industrial Relations Act contravened - Correct mode of challenge that should have been adopted by the company - Industrial Relations Act 1967 s. 26(2) & Rubber Industry (Replanting) Fund Ordinance 1952 s. 13
Lanskap Sdn Bhd (Ladang Getah Risda Kg Awah) v. Kesatuan Kebangsaan Pekerja-pekerja Ladang (NUPW)
(Siti Saleha Abu Bakar) [2007] 1 ILR 675

Collective Agreement - Preliminary objection - Whether workers were members of the Trade Union - Workers contracts with company all expired - Whether company had recognized the Trade Union - Effect of - Whether the Trade Union had the locus standi to represent workers - Industrial Relations Act 1967 s. 26(2)
Lanskap Sdn Bhd (Ladang Getah Risda Kg Awah) v. Kesatuan Kebangsaan Pekerja-pekerja Ladang (NUPW)
(Siti Saleha Abu Bakar) [2007] 1 ILR 675

Collective Agreement - Preliminary objection - Whether workers were members of the Trade Union - Workers claiming they never joined Trade Union - Trade Union failing to adduce evidence to rebut - Effect of - Whether the Trade Union had the locus standi to represent workers - Industrial Relations Act 1967, s. 26(2)
Kesatuan Pekerja-pekerja Perusahaan Alat-alat Pengangkutan Dan Sekutu v. Limton Parts Manufacturer Sdn Bhd
(Zura Yahya) [2007] 1 ILR 669

WORDS AND PHRASES

Whether "action or proceedings" before the Industrial Court came within definition of action or proceedings in the Courts of Judicature Act 1964 ("CJA") - Whether the definition of "court" in the CJA encompassed the Industrial Court - Status of Industrial Court - Whether containing criminal or civil nature - Whether tribunal or civil court - Courts of Judicature Act 1964, ss. 3 & 44 and Danaharta Act 1988, s. 41(1)(e)
Toh Bee Jit & Anor v. DKH Management Sdn Bhd
(Jalaldin Haji Hussain) [2007] 1 ILR 552

CASE OF THE WEEK

AIROD SDN BHD v. DORAIYAH MUNUSAMY

DISMISSAL: Misconduct - Claimant being asked to perform errands for president’s wife - Whether part of claimant’s job functions - Claimant obliging such performance of tasks in past - Whether constituted acquiescence on his part - Whether previous conduct of claimant constituted an amendment to his terms and conditions of service - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)

ILR Bulletin
To Subscribe/Unsubscribe go to http://www.cljlaw.com/ilrsubscribefrm.asp

Copyright ©1997 - 2007 CLJ Legal Network Sdn Bhd (192353 V)
Email: enquiries@cljlaw.com Phone: 603-4270-5400 Fax No : 603-4270 5401 & 603-4270 5402