ILR Bulletin, Vol 14 2007
December 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 10 of 2007

Judicial Review - High Court - Certiorari and mandamus - Public officers - Whether serving at pleasure of Government - Whether Government had discretion to choose where they were to serve within public service - Whether wrong of High Court to review such exercise of discretionary power - Sarawak Forestry Corporation Ordinance 1995, ss. 11(3), 16(1) - Federal Constitution, art. 132(2), (2A)
Kerajaan Sarawak & Anor v. Abdul Wahab Abdullah
(Abdul Aziz Mohamad JCA, Azmel Maamor JCA & Zaleha Zahari JCA)
[Civil Appeal No: Q-01-113-2004] [2007] 4 ILR 1

Remedies - Certiorari - Consumer Claims Tribunal - Jurisdiction - Hearing of dispute arising from telecommunications industry - Whether beyond jurisdiction of Tribunal - Award by Tribunal - Whether ultra vires - Consumer Protection Act 1999, s. 2(2)(g) - Communications and Multimedia Act 1998, ss. 6, 188, 190
Telekom Malaysia Bhd v. Tribunal Tuntutan Pengguna & Anor
(Low Hop Bing J)
[Judicial Review Application No: MT1-13-1-2005] [2007] 4 ILR 35

Breach of company rules and policies - Absenteeism - Company suffering losses as a result of claimant’s non-attendance - Claimant bound by terms of Collective Agreement - No provisions in Collective Agreement for unpaid leave - Company treating claimant’s absence from work without permission as unpaid leave and deducting claimant’s salary accordingly - Effect of - Claimant failing to explain reasons for his failure to turn up for work on all occasions - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Razhan Ramli v. JVC Electronics Malaysia Sdn Bhd
(Susila Sithamparam) [2007] 4 ILR 96

Breach of company rules and policies - Medical leave - Claimant complying with terms of Collective Agreement on medical leave - Terms on medical leave in Collective Agreement different from instructions given to claimant by immediate superior - Which one took precedence - Whether claimant had breached company policy - Effect of - Claimant explaining why he had failed to report to superior earlier - Whether claimant’s explanation acceptable - Whether company had established a prima facie case against the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Razhan Ramli v. JVC Electronics Malaysia Sdn Bhd
(Susila Sithamparam) [2007] 4 ILR 96

Constructive dismissal - Job functions - Claimant negligent in carrying out duties - Warning letters issued to claimant - Altercation between claimant and company - Claimant walking out of employment - Claimant claiming constructive dismissal - Whether constructive dismissal proven - Whether claimant had abandoned his job - Effect of - Whether fundamental breach of terms of employment by company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Kamizi Kasah v. SM Systematic Mover Sdn Bhd
(Fredrick Indran Xa Nicholas) [2007] 4 ILR 227

Constructive dismissal - Status - Reduction of responsibility on transfer - Effect of - Training provided to claimant - Whether for benefit of claimant or the company - Effect of - Whether company had transferred him to frustrate him - Whether fundamental breach of terms of employment - Whether justified claimant walking out of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mohd Arifuddin Abdul Wahid v. Asian Composites Manufacturing Sdn Bhd
(Jalaldin Hj Hussain) [2007] 4 ILR 134

Constructive dismissal - Transfer - Transfer to a non-existent post - Claimant going on transfer but lodging appeal twice - Appeals denied - Claimant not informed of real reason for transfer - Reason given to claimant was poor performance - Whether there was deceit on part of the company - Claimant transferred on basis of request and e-mails - Company not following own standard operating procedures - No reasons adduced for deviation therefrom - Claimant not given opportunity to explain himself - Effect of - Whether proper - Conduct of company - Whether mala fide - Whether fundamental breach of terms of employment - Whether justified claimant walking out of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mohd Arifuddin Abdul Wahid v. Asian Composites Manufacturing Sdn Bhd
(Jalaldin Hj Hussain) [2007] 4 ILR 134

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)
Propel-Johnson Controls (M) Sdn Bhd v. Ahmad Sazili Hj Mohamed
(Choong Siew Khim) [2007] 4 ILR 64

Misconduct- Claimant being insolent towards Chairman of company - Terminated next day after incident - Effect of - Whether a domestic inquiry should have been convened - No investigation carried out by company into alleged misconduct - Intention of company - Effect of - Whether company’s decision had been arbitrary - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3), 30(5) & Employment Act 1955 s. 14(1) (a)
Papu Arokiasamy v. Malaysia Parquet-floor Industries Sdn Bhd
(Rajendran Nayagam) [2007] 4 ILR 89

Misconduct - Whether claimant had been provoked - Whether claimant’s misconduct deserved the extreme punishment of dismissal - Claimant had served the company for 21 years without incident - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Papu Arokiasamy v. Malaysia Parquet-floor Industries Sdn Bhd
(Rajendran Nayagam) [2007] 4 ILR 89

Notice of termination - Forced resignation - Claimant demanding severance package although not entitled to it - Subsequently rejecting it on mistaken belief of who his employer was - Effect of - Claimant failing to turn up for work - No termination letter issued to claimant - No evidence that company had wanted to terminate him - Claimant failing to state that he had been forced to resign in letters to the company - Effect of - Whether claimant had succeeded in proving that he had been dismissed - Whether claimant had been dismissed without just cause and excuse by the company - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Multicore Solders (M) Sdn Bhd v. Donny Yeo Kuei Chwan
(Choong Siew Khim) [2007] 4 ILR 74

Notice of termination - Forced Resignation - Claimant being asked to leave - Claimant being issued threats and inducements to leave - Whether claimant had left due to these threats and inducements - Effect of - Claimant typing his own resignation letter - No indication in resignation letter of inducement to resign - Sequence of events - Claimant only resigning after securing alternative employment - Claimant only bringing a claim for dismissal after asked to leave new employment - Conduct of claimant - Whether claimant had been dismissed without just cause and excuse by the company - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Malayan Banking Berhad v. Chan Hock Low
(Amelia Tee Hong Geok Abdullah) [2007] 4 ILR 203

Notice of termination - Forced resignation - Confusion as to who the claimant’s employer was - How determined - Whether the Industrial Court had the jurisdiction to adjudicate the dispute in view of who claimant’s employer was - Whether the Industrial Court had extra-territorial jurisdiction - Whether claimant had been dismissed without just cause and excuse by the company - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Multicore Solders (M) Sdn Bhd v. Donny Yeo Kuei Chwan
(Choong Siew Khim) [2007] 4 ILR 74

Notice of termination - Inadequate notice - Reasons cited by respondent for terminating claimant not supported by cogent proof - Claimant’s performance never an issue before - Effect of - Whether company had successfully discharged its evidential burden - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Kosma Plantation Berhad & Anor v. Norya Abas
(Chew Soo Ho) [2007] 4 ILR 189

Notice of termination - Verbal termination - No reasons given for termination - Claimant not given letter of appointment by company - Claimant’s income not fixed - Income as stated by claimant and as stated in the company’s EA forms varied - Claimant being paid a sum of money before being terminated - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Nagaraj Kalimuthu v. Quick Cobbler (M) Sdn Bhd
(Ong Geok Lan) [2007] 4 ILR 104

Performance - Unsatisfactory performance - Claimant given warning letters by company - Company accepting claimant’s letter of apology - Whether it amounted to condonation on the part of the company of the claimant’s misconduct - Whether company had given sufficient opportunity to claimant to improve - Whether company’s actions in dismissing claimant bona fide - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Sovage Sdn Bhd v. Michael Beyer
(Siti Saleha Abu Bakar) [2007] 4 ILR 43

Performance - Unsatisfactory performance - Claimant allegedly failing to meet collection target - Whether collection target part of terms and conditions of employment - Whether other employees subject to collection target - Whether company had succeeded in proving - Whether company’s actions mala fides - Whether proven - Whether claimant had been victimised - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Sentrafield Sdn Bhd v. Kasivisvanathan P Velayutham
(Franklin Goonting) [2007] 4 ILR 56

Probationer - Claimant not confirmed in his position - Claimant treated as a confirmed employee - Whether claimant was a probationer or confirmed employee - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Sovage Sdn Bhd v. Michael Beyer
(Siti Saleha Abu Bakar) [2007] 4 ILR 43

Probationer - Claimant 2 months into job - Termination letter vague as to reasons for termination - Summary dismissal - Claimant not issued any prior warnings - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Sentrafield Sdn Bhd v. Kasivisvanathan P Velayutham
(Franklin Goonting) [2007] 4 ILR 56

Probationer - Claimant subject to long period of probation - Pursuant to terms in letter of employment - Whether claimant had been aware of likelihood of not being confirmed - Claimant terminated before maximum period of probation had finished - Effect of - Whether claimant had been terminated prematurely - Industrial Relations Act 1967
Kosma Plantation Berhad & Anor v. Norya Abas
(Chew Soo Ho) [2007] 4 ILR 189

Remedies

Reinstatement - Claimant not wanting reinstatement - Asking for compensation instead - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Kamizi Kasah v. SM Systematic Mover Sdn Bhd
(Fredrick Indran Xa Nicholas) [2007] 4 ILR 227

Retrenchment - Redundancy - Claimants functions still existing - Taken over by manager with less experience than claimant - Whether LIFO principles were applicable - Claimant having versatility to adapt to different types of jobs due to his experience - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
HLG Securities Sdn Bhd v. Adam Iskandar Choong Abdullah
(Syed Ahmad Radzi Syed Omar) [2007] 4 ILR 178

Retrenchment - Redundancy - Company hit by financial crisis - Suffering loss - Undertaking cost cutting measures - Merger of departments - Effect of - Claimant dismissed from company - Whether there existed a real redundancy situation in the company - Conduct of company - Whether bona fide - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
HLG Securities Sdn Bhd v. Adam Iskandar Choong Abdullah
(Syed Ahmad Radzi Syed Omar) [2007] 4 ILR 178

Retrenchment - Reorganisation - Merger exercise pursuant to a vesting order - Second company taking over first company - First company terminating claimant’s services after the vesting order became effective - Effect of - Whether mala fides existed on part of first company in terminating claimant’s services - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Phileo Allied Securities Sdn Bhd & Anor v. Daniel Paul McCarthy
(Zaini Abd Rahman) [2007] 4 ILR 120

Retrenchment - Reorganisation - Claimant employed by first company for fixed term - Agreement between first company and second company on employment to be offered - Claimant declining offer - Whether claimant was an employee of second company - Whether claimant had a cause of action against second company - Whether claimant could sue second company for specific performance - privity of contract - Effect of - Claimant compensated monetarily in lieu of service - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Phileo Allied Securities Sdn Bhd & Anor v. Daniel Paul McCarthy
(Zaini Abd Rahman) [2007] 4 ILR 120

Jurisdiction - Whether court had jurisdiction to hear the matter - Dispute as to facts - Whether facts could be ascertained by way of PO - Effect of the PO if allowed - Industrial Relations Act 1967 s. 20(1)
Tan Swee Lee v. Vsource (Malaysia) Sdn Bhd
(Yamuna Menon) [2007] 4 ILR 110

Jurisdiction - Whether court had jurisdiction to hear the matter - Claimant filing representation - Subsequently being reinstated by company - Whether reference died there - Claimant not being allowed to perform duties - Walking out of employment and claiming constructive dismissal again - Effect of - Whether he needed to file another separate representation - Whether matter could be disposed of by way of PO - Industrial Relations Act 1967 s. 20(1)
Tan Swee Lee v. Vsource (Malaysia) Sdn Bhd
(Yamuna Menon) [2007] 4 ILR 110

Procedure - Action - Whether company bound by reasons for dismissal as stated in the dismissal letter - Whether company could rely on other reasons in Statement in Reply - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Razhan Ramli v. JVC Electronics Malaysia Sdn Bhd
(Susila Sithamparam) [2007] 4 ILR 96

Procedure - Ex parte proceedings - Company failing to attend hearing despite being served with requisite notices - Effect of - Whether the company had managed to prove that the claimant’s dismissal had been with just cause and excuse - Industrial Relations Act 1967, s. 29(a)
Nagaraj Kalimuthu v. Quick Cobbler (M) Sdn Bhd
(Ong Geok Lan) [2007] 4 ILR 104

Procedure - Parties - Joinder - 2nd respondent joined vide earlier award of court - Nexus established - Whether concept of vicarious liability was applicable to industrial court proceedings - Whether 2nd respondent jointly liable to pay the claimant if award in claimant’s favour - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 32(1)(a)
Kosma Plantation Berhad & Anor v. Norya Abas
(Chew Soo Ho) [2007] 4 ILR 189

Remedies - Company’s financial health unhealthy - What was most appropriate remedy to be awarded to claimant considering circumstances - Whether Court should make deductions to claimant’s post-dismissal income - Criteria to adopt - Industrial Relations Act 1967
Nagaraj Kalimuthu v. Quick Cobbler (M) Sdn Bhd
(Ong Geok Lan) [2007] 4 ILR 104

Remedies - Compensation - Claimant’s financial prospects affected due to respondent’s actions - Claimant deprived of potential livelihood - Effect of - Whether claimant should be compensated equitably - How calculated - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Sentrafield Sdn Bhd v. Kasivisvanathan P Velayutham
(Franklin Goonting) [2007] 4 ILR 56

Remedies - Compensation in lieu of reinstatement - Determination of claimant’s salary - Whether allowances could be taken into account - Under what circumstances could allowances be taken into account - Claimant only working with respondent for seven months - Whether entitled to be compensated under this head - Industrial Relations Act 1967
Kosma Plantation Berhad & Anor v. Norya Abas
(Chew Soo Ho) [2007] 4 ILR 189

Remedies- Quantum of damages - Claimant deprived of retirement benefits - Whether he should be allowed compensation under this head - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
HLG Securities Sdn Bhd v. Adam Iskandar Choong Abdullah
(Syed Ahmad Radzi Syed Omar) [2007] 4 ILR 178

Remedies - Whether court could award remedy where dismissal found to be with just cause and excuse - Industrial Relations Act 1967
Phileo Allied Securities Sdn Bhd & Anor v. Daniel Paul McCarthy
(Zaini Abd Rahman) [2007] 4 ILR 120

LABOUR LAW

Provident Fund - Contributions - Allegations of unlawful deductions by plaintiffs - Unjust enrichment and breach of trust - Interpretation of regulations of fund - Whether plaintiffs entitled to full reimbursement and restitution - Employees Provident Fund Act 1951, s. 9(1) - Employees Provident Fund Act 1991, s. 47(1) - Rules of the High Court 1980, O. 14A
Sarawak Shell Bhd & Ors v. Chong Thian Fook & Another Appeal
(Abdul Aziz Mohamad JCA, Mohd Ghazali Yusoff JCA & Zaleha Zahari JCA)
[Civil Appeal Nos: Q-02-1075-2004 & Q-02-1177-2004] [2007] 4 ILR 14

Arrears of contributions - Failure to pay - Allegations of unlawful deductions by plaintiffs - Unjust enrichment and breach of trust - Interpretation of regulations of fund - Whether plaintiffs entitled to full reimbursement and restitution - Employees Provident Fund Act 1951, s. 9(1) - Employees Provident Fund Act 1991, s. 47(1) - Rules of the High Court 1980, O. 14A
Sarawak Shell Bhd & Ors v. Chong Thian Fook & Another Appeal
(Abdul Aziz Mohamad JCA, Mohd Ghazali Yusoff JCA & Zaleha Zahari JCA)
[Civil Appeal Nos: Q-02-1075-2004 & Q-02-1177-2004] [2007] 4 ILR 14

Construction of statutes - Legislative intent - Governing principles - Whether to adopt approach that would promote purpose and object of statute - Purposive approach - Whether applied only where doubt arose from words used - Words used precise and unambiguous - Whether to apply literal and strict construction - Sarawak Forestry Corporation Ordinance 1995, ss. 11(3), 16(1) - Federal Constitution, art. 132(2), (2A)
Kerajaan Sarawak & Anor v. Abdul Wahab Abdullah
(Abdul Aziz Mohamad JCA, Azmel Maamor JCA & Zaleha Zahari JCA)
[Civil Appeal No: Q-01-113-2004] [2007] 4 ILR 1

Consumer Protection Act 1999 - Section 2(2)(g) - Scope of application - Whether excluding application of Act to trade transactions effected through communication of electronically transmitted waves
(Low Hop Bing J)
[Judicial Review Application No: MT1-13-1-2005][2007] 4 ILR 35

"Communications" - Meaning - Section 6, Communications and Multimedia Act 1998
Telekom Malaysia Bhd v. Tribunal Tuntutan Pengguna & Anor
(Low Hop Bing J)
[Judicial Review Application No: MT1-13-1-2005] [2007] 4 ILR 35

Perjanjian Bersama - Artikel berkenaan pembayaran bonus - Samada syarikat mempunyai masalah aliran wang - Samada pengambilan kira susut nilai dalam dokumen kewangan syarikat memaparkan keadaan kewangan syarikat yang sebenarnya - Samada syarikat berjaya membuktikan wujudnya keadaan istimewa yang membolehkannya meminda pematuhannya kepada artikel tersebut - Kesannya - Akta Perhubungan Perusahaan 1967, s. 56(1)
National Union Of Hotel, Bar & Restaurant Workers, Peninsular Malaysia v. HM Enterprises Sdn Bhd
(Abd Rahman Abdol) [2007] 4 ILR 130

Prosidur - Pliding - Pemindahan kes - Keterangan afidavit Yang Menuntut mengenai penganggurannya tidak disangkal - Kesannya - Keterangan yang menuntut berkaitan penganggurannya merupakan fakta yang tidak tergugat - Akta Mahkamah Perusahaan 1967, s. 20(3)
Mohamed Asharat Razman Ali v. Hornbill Skyways Sdn Bhd
(Abd Rahman Abdol) [2007] 4 ILR 171

Prosidur - Tindakan - Pemindahan kes - Faktor-faktor yang patut dipertimbangkan - Kesusahan kewangan yang akan ditanggung oleh pihak-pihak berkenaan - Pihak mana yang lebih berkemampuan menyerap kos tambahan - Kegagalan syarikat memberikan bukti secukupnya untuk menunjukkan bahawa syarikat tidak berada dalam keadaan yang lebih baik untuk menyerap kos tambahan sekiranya kes tidak dipindahkan - Kesannya - Akta Mahkamah Perusahaan 1967, s. 20(3)
Mohamed Asharat Razman Ali v. Hornbill Skyways Sdn Bhd
(Abd Rahman Abdol) [2007] 4 ILR 171

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