ILR Bulletin, Vol 13 2007
1 November 2007

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INDUSTRIAL LAW REPORTS ISSUE 9 of 2007

SUBJECT INDEX

Terms and conditions - Notice of termination - Retirement of claimant - Pursuant to rules and regulations of company as contained in company handbook - Whether claimant had knowledge of handbook and retirement age - Claimant claiming no knowledge - Whether believable - Claimant served company for 9 years - Claimant mentioning retirement in letters to company - Whether company’s act of retiring the claimant was done bona fide - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Heiwa Giken (Malaysia) Sdn Bhd v. Lim Kok Chye
(Siti Saleha Abu Bakar) [2007] 3 ILR 639

Absenteeism - Being absent for one day without the company’s approval - Company not believing the claimant’s excuse for such absence - Claimant’s honesty brought into issue - Claimant had committed similar misconduct in the past - Whether proven by company - Effect of - Whether charges against claimant proven - Whether there had been reciprocal duty on company to conduct investigations into the claimants absence - In what circumstances does such a reciprocal duty arise - Whether the punishment of dismissal had been proportionate to the misconduct committed by the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Sri Bayanaemas Road Feeder Services Sdn Bhd v. Rohani Abd Rahman
(Mohd Amin Firdaus Abdullah) [2007] 3 ILR 582

Breach of company rules and policies - Claimant absent without leave - Claimant taking leave without finding out whether approved by respondent - Claimant failing to report back to work when asked to - Attitude of claimant - Whether claimant’s actions amounted to a breach of the contract of service - Effect of - Conduct of respondent company - Whether reasonable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Berjaya Hotels & Resorts v. Wan Mohamad Azlam Wan Ismail
(Chew Soo Ho) [2007] 3 ILR 608

Breach of company rules and policies - Claimant failing to comply with set procedures of respondent company to respondent company’s detriment - Claimant failing to listen to instructions of immediate superior - Conduct of claimant - Whether amounted to gross misconduct - Effect Of - Whether claimant’s conduct was in breach of reasonable care and skill that he owed to the respondent - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Guinness Anchor (M) Sdn Bhd v. Goh Keat Hin
(Franklin Goonting) [2007] 3 ILR 527

Breach of company rules and policies - Failure to follow company rules - Previous condonation by company on same misconduct - Whether company could rely on previous misconduct - Effect of - Whether company’s actions had been actuated by bad faith - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Abd Halim Long v. Malaysia Truck & Bus Sdn Bhd
(Tan Yeak Hui) [2007] 3 ILR 571

Breach of company rules and policies - Failure of claimant to swipe in and out of work - Claimant aware of rules and policies - Other employees who committed same misconduct not dismissed - Whether claimant singled out for punishment - Whether company’s explanations acceptable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Abd Halim Long v. Malaysia Truck & Bus Sdn Bhd
(Tan Yeak Hui) [2007] 3 ILR 571

Breach of company rules and policies - Medical leave - Failure to submit - Claimant substituting dates of medical leave unilaterally - Whether acceptable - Status of a referral letter - Conduct of claimant - Effect Of - Whether dates in medical leave could be substituted unilaterally - Whether medical leave covered claimant’s absences from work at the material times - Claimant failing to follow respondent’s practise and procedures - Position held by claimant - Whether claimant should have known better due to the position he held in the respondent company - Whether respondent had proven breach by claimant on a balance of probabilities - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3), 30(5) & Employment Act 1955, ss. 15(1) and 19
Berjaya Hotels & Resorts v. Wan Mohamad Azlam Wan Ismail
(Chew Soo Ho) [2007] 3 ILR 608

Change of ownership - Claimant employed by one company and subsequently transferred to another - Confusion as to who claimant’s employer was - How to determine - Whether the sale of shares agreement had taken effect - Determination of the legal and de facto employer of the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & 30(5)
Dataprep Retail Sdn Bhd & Ors v. Ng Kar Hwai
(Soo Ai Lin) [2007] 3 ILR 662

Constructive dismissal - Assault on claimant - Whether the General Manager had been provoked by the claimant - Claimant lodging police report - Effect of - Whether company acted reasonably - Whether Constructive Dismissal Proven - Whether fundamental breach of terms of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Lai Hui Siang v. Iwashita Instruments (M) Sdn Bhd
(Rajendran Nayagam) [2007] 3 ILR 726

Constructive dismissal - Status - Treatment - Claimant re-employed by company - Claimant claiming humiliation by company - Whether proven - Claimant taking some time before complaining of company’s treatment - Effect of - Claimant displaying problematic tendencies - Company’s treatment of his behaviour - Whether company had taken steps to drive the claimant out of his employment - Whether explanation given by company reasonable - Claimant walking out of employment before giving company a chance to explain its actions - Whether the claimant had walked out of his employment with the company - Conduct of company - Whether there was a fundamental breach of terms of employment by company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Konsortium SKS Bhd v. Mohd Zahferee Hj Mohamed Amin
(Choong Siew Khim) [2007] 3 ILR 549

Constructive dismissal - Transfer - Claimant’s remuneration affected - Whether there had been other underlying reasons for the claimant’s transfer - Intention of company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Azmi Azuar v. Jurunilai Bersekutu & Anor
(Mary Shakila Azariah) [2007] 3 ILR 696

Constructive dismissal - Transfer - No transfer clause in claimant’s letter of appointment - Effect of - Company citing reorganisation as reasons for transfer - Claimant the only person being transferred - Whether such transfer had been done in good faith - Whether constructive dismissal proven - Whether fundamental breach of terms of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Azmi Azuar v. Jurunilai Bersekutu & Anor
(Mary Shakila Azariah) [2007] 3 ILR 696

Constructive dismissal - Transfer - Transfer clause in claimant’s letter of appointment - Claimant being transferred to completely separate company - Whether within the ambit of the transfer clause in the letter of appointment - Effect of - Whether such transfer had been done in good faith - Whether constructive dismissal proven - Whether fundamental breach of terms of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Sinar Jernih Sdn Bhd v. Juliana Niur
(Franklin Goonting) [2007] 3 ILR 676

Constructive dismissal - Transfer - Whether transfer had resulted in a demotion to the claimant - Intention of company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Sinar Jernih Sdn Bhd v. Juliana Niur
(Franklin Goonting) [2007] 3 ILR 676

Misconduct - Claimant acting in excess of his authority - Failing to follow rules and procedures of company - Whether claimant’s conduct jeopardised company - Claimant producing valuation report on vehicle which had not been produced before - Valuation report defective on material particulars - Effect of such valuation report - Whether it was an afterthought - Claimant failing to endorse ownership on registration card of vehicle - Effect of - Whether claimant had abused his position - Whether claimant had discharged his duties diligently - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Philips Electronic Supplies (M) Sdn Bhd & Anor v. Lim Eng Hong
(Sauffee Afandi Mohamad) [2007] 3 ILR 715

Misconduct - Claimant acting in excess of his authority - Failing to follow rules and procedures of company - Claimant approving vehicle loans to staff not covered by scheme - Effect of - Whether claimant’s explanation acceptable - Whether claimant had discharged his duties diligently - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Philips Electronic Supplies (M) Sdn Bhd & Anor v. Lim Eng Hong
(Sauffee Afandi Mohamad) [2007] 3 ILR 715

Misconduct - Claimant’s terms of employment changed when new company took over - Claimant not issued with new letter of appointment - Claimant failing to comply with new terms - Warning letters issued - Whether company had managed to prove claimant’s misconduct - Company only adducing one witness with no personal knowledge of the matter - Witnesses testimony based on domestic inquiry notes - Court finding that Domestic Inquiry defective - Weight to be given to company witnesses evidence - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Dataprep Retail Sdn Bhd & Ors v. Ng Kar Hwai
(Soo Ai Lin) [2007] 3 ILR 662

Notice of termination - Forced resignation - Whether company had acted mala fide - Whether claimant had succeeded in proving mala fides on part of the company - Whether company’s actions reasonable - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Heiwa Giken (Malaysia) Sdn Bhd v. Lim Kok Chye
(Siti Saleha Abu Bakar) [2007] 3 ILR 639

Notice of termination - Whether company could hire and fire at will - Whether that right now was subject to s. 20 of the Industrial Relations Act 1967 - Whether company had discharged burden of proof in showing that claimant’s dismissal had been with just cause and excuse - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Lim Siok Yean v. Pengkalen Securities Sdn Bhd
(Rajendran Nayagam) [2007] 3 ILR 624

Retrenchment - Cessation of business - Company ceasing business and no longer needing services of claimant - Whether proven by company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Zubaidah Abdul Khalic v. Richline Enterprise/Jayakil Sdn Bhd
(Muniandy Kannyappan) [2007] 3 ILR 597

Retrenchment - Redundancy - Claimant took up employment thinking it was long term - Claimant terminated shortly after being employed through no fault of her own - Company employing claimant whilst facing losses - Company affected by financial crisis - Whether company’s short-sighted recruitment policy had been unfair to the claimant - Conduct of company - Whether bona fide - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Lim Siok Yean v. Pengkalen Securities Sdn Bhd
(Rajendran Nayagam) [2007] 3 ILR 624

Retrenchment - Takeover by another company - Issue as to who employers of claimants were - Different parties issuing different letters re employment and termination - Whether parties issuing letters had capacity to do so - Effect of - Whether new company obliged to keep claimants employed - Whether the claimants had privity of contract to the sale and purchase agreement - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Vincent Pillai Leelakanda Pillai & Ors & Anor Case v. JW Marriott Hotel & Ors & Anor Case
(Susila Sithamparam) [2007] 3 ILR 492

Findings - Whether complied with the rules of natural justice - Claimant signing on all pages of findings - Claimant not taking issue with findings save to say that it had not complied with rules of natural justice - Effect of - Whether domestic inquiry had established a prima facie case against the claimant - Industrial Relations Act 1967
Guinness Anchor (M) Sdn Bhd v. Goh Keat Hin
(Franklin Goonting) [2007] 3 ILR 527

Procedural impropriety - Notes of domestic inquiry were inaccurate and invalid - Whether the domestic inquiry had been impartial - Whether the company had succeeded in establishing a prima facie case against the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Sri Bayanaemas Road Feeder Services Sdn Bhd v. Rohani Abd Rahman
(Mohd Amin Firdaus Abdullah) [2007] 3 ILR 582

Procedural impropriety - Whether rules of natural justice had been complied with - Whether there existed bias in proceedings - Difference in charge as stipulated in show cause letter and as stipulated in notice of charge - Effect of - Claimant only being served with notice of charge on hearing day - Whether claimant had been accorded sufficient opportunity to defend matter - Industrial Relations Act 1967, s. 20(3)
Dataprep Retail Sdn Bhd & Ors v. Ng Kar Hwai
(Soo Ai Lin) [2007] 3 ILR 662

Adverse inference - Claimant giving oral evidence only - Claimant failing to substantiate arguments by way of documentary proof - whether adverse inference could be drawn against him - Whether the provisions of the Evidence Act 1950 ought to be applied rigidly to industrial adjudication - Industrial Court as a court of equity and good conscience - Role of - Evidence Act 1950 s. 114(g)
Abdul Azid Desa v. Malaysia Travel Business Sdn Bhd
(Mohd Amin Firdaus Abdullah) [2007] 3 ILR 485

Witness - Conflicting evidence - Claimant and company witnesses giving conflicting evidence - Court to take into account contemporaneous evidence from independent witnesses - Whether claimant had managed to tilt the balance in her favour - Industrial Relations Act 1967, ss. 29(b) & 29(g)
Zubaidah Abdul Khalic v. Richline Enterprise/Jayakil Sdn Bhd
(Muniandy Kannyappan) [2007] 3 ILR 597

Documentary evidence - Company recreating letter - Probative value of such a letter - Intention of company - Whether company’s intentions bona fide - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967
Azmi Azuar v. Jurunilai Bersekutu & Anor
(Mary Shakila Azariah) [2007] 3 ILR 696

Jurisdiction - Claimant abandoning plea for reinstatement at hearing stage - Effect of - Whether the Industrial Court had jurisdiction over the matter - Whether the Court could award him compensation in lieu of reinstatement - Industrial Relations Act 1967
Guinness Anchor (M) Sdn Bhd v. Goh Keat Hin
(Franklin Goonting) [2007] 3 ILR 527

Parties - Disjoinder - Whether sufficient to show nexus between claimant and joined parties - Criteria to be fulfilled - Industrial Relations Act 1967, s. 29(a)
Dataprep Retail Sdn Bhd & Ors v. Ng Kar Hwai
(Soo Ai Lin) [2007] 3 ILR 662

Procedure - Action - Determination of who claimant’s employers were - Claimant stating conflicting things in statement of case and through evidence in court - Whether claimant had come to court of equity with clean hands - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Zubaidah Abdul Khalic v. Richline Enterprise/Jayakil Sdn Bhd
(Muniandy Kannyappan) [2007] 3 ILR 597

Procedure - Action - Transfer - Factors to consider - Relative financial hardship suffered by parties - Suffered by whom - Company is a corporate entity whereas claimant is an individual - Industrial Relations Act 1967, s. 20(3)
Abdul Azid Desa v. Malaysia Travel Business Sdn Bhd
(Mohd Amin Firdaus Abdullah) [2007] 3 ILR 485

Procedure - Parties - Joinder - Company wound-up - Claimant seeking to join liquidator as party to proceedings - Whether Industrial Court bound by provisions of the Companies Act 1965 or the Courts of Judicature Act 1964 - Whether claimant had to obtain leave of the High Court before proceeding with action against the company - Whether requirement for leave was a mere technicality and could be dispensed with - Whether Court had jurisdiction to deal with matter where no such leave had been obtained from the High Court - Industrial Relations Act 1967, ss. 29(a), 33A & Companies Act 1965 s. 226(3)
Kerjaya Binaan Sdn Bhd v. Kok Yen Chow
(Ong Geok Lan) [2007] 3 ILR 651

Procedure - Pleadings - Claimant’s union activities - Whether claimant victimized by company for it - Claimant failing to plead victimization in domestic inquiry or in his Statement of Case - Whether parties are bound by pleadings - Whether claimant could bring up issue of victimization at hearing stage - Effect of - Whether proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Abd Halim Long v. Malaysia Truck & Bus Sdn Bhd
(Tan Yeak Hui) [2007] 3 ILR 571

Remedies - Types of remedies - Factors to consider - What heads of claims can and cannot be awarded by the Court - Post Dismissal Employment - Whether claimants under an obligation to secure - Effect Of - Ability of company to pay - Whether a relevant consideration - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Yu Chee Guan & Anor v. Kacc Construction Sdn Bhd
(Muniandy Kannyappan) [2007] 3 ILR 519

Award - Respondent applying for judicial review of award - Parties reaching settlement on payment - Complainant raising issue of EPF contributions to be made by respondent at hearing - Whether respondent under an obligation to make EPF contributions - Factors to consider - Effect of - Industrial Relations Act 1967, s. 56(1)
Cygal Berhad v. Stephen Goh Chin Seng
(Umi Kalthum Abdul Majid) [2007] 3 ILR 631

Award - Whether Court could vary the award - Under what circumstances could variation order be made by Court - Whether complainant had established special circumstances - Effect of - Industrial Relations Act 1967, s. 56(1)
Cygal Berhad v. Stephen Goh Chin Seng
(Umi Kalthum Abdul Majid) [2007] 3 ILR 631

Collective Agreement - Parties - Scope of coverage of the new Collective Agreement - Whether extended to wholly owned subsidiary of company - Separate legal entity - Scope of coverage of earlier collective agreements extended to wholly owned subsidiary of company - Subsidiary of company not signatory to collective agreements and not according union recognition - Effect of - Whether provisions of Trade Unions Act 1959 contravened - Whether company had to show special circumstances - In what situation would special circumstances have to be shown - Industrial Relations Act 1967 ss. 14, 26(2), Part III & Trade Unions Act 1959
Kesatuan Pekerja-pekerja Perbadanan Perkapalan Antarabangsa Malaysia Berhad (MISC) Semenanjung Malaysia v. Perbadanan Perkapalan Antarabangsa Malaysia Berhad (MISC)
(Zura Yahya) [2007] 3 ILR 686

Action or proceedings - Not defined in the Companies Act 1965 - Whether should be given a wider meaning than as defined in the Courts of Judicature Act 1964 - Intention of Parliament - Whether it was wide enough to include proceedings in the Industrial Court - Companies Act 1965 s. 226(3)
Kerjaya Binaan Sdn Bhd v. Kok Yen Chow
(Ong Geok Lan) [2007] 3 ILR 651

Definition of the words ‘trade union’ and ‘establishment’ - Whether the union was in a position to represent the workers of the company’s wholly owned subsidiaries - Trade Unions Act 1959
Kesatuan Pekerja-pekerja Perbadanan Perkapalan Antarabangsa Malaysia Berhad (MISC) Semenanjung Malaysia v. Perbadanan Perkapalan Antarabangsa Malaysia Berhad (MISC)
(Zura Yahya) [2007] 3 ILR 686

Pemecatan secara konstruktif - Gaji - Pihak menuntut dituduh tidur semasa bekerja berdasarkan cara beliau duduk semasa bertugas - Samada dibuktikan oleh responden - Syor panel siasatan dalaman tidak diikuti - Kesannya - Prosidur disiplin responden juga tidak diikuti - Pihak menuntut tidak pernah melakukan kesalahan sebelum ini - Samada tindakan responden merupakan perlanggaran yang melibatkan asas kontrak antara mereka - Kesannya - Samada pihak menuntut melengahkan tindakannya meninggalkan kerja dan menuntut pemecatan secara konstruktif - Samada pembuangan kerja adalah tanpa alasan atau sebab yang adil - Akta Mahkamah Perusahaan 1967, s. 20(3)
Elangovan Krishnan lwn. Qdos Flexcircuits Sdn Bhd
(Siti Khadijah Sheikh Hassan) [2007] 3 ILR 561

CASE OF THE WEEK

PROPEL-JOHNSON CONTROLS (M) SDN BHD v. AHMAD SAZILI HJ MOHAMED

DISMISSAL: Misconduct - Claimant being accused of having a conflict of interest with the company - Whether proven - Whether a mandatory requirement of the Business Process Manual had been contravened - Only second issue of manual being produced in court - Claimant not having knowledge of contents of second issue - Effect of - Claimant not in a position to approve award of works - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)

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