ILR Bulletin, Vol 15 2007
December 2007

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INDUSTRIAL LAW REPORTS ISSUE 11 of 2007

Breach of company rules and policies - Claimant alleging victimization by company - Whether proven - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Gardenia Bakeries (KL) Sdn Bhd v. Shin Chin Peng
(Zura Yahya) [2007] 4 ILR 241

Breach of company rules and policies - Conflict of interest with company’s business - Claimant selling insurance and direct selling products in spare time - Whether proven by company - Whether company needed to show that claimant’s work performance had been affected - Claimant claiming he had not agreed to new term - Whether sufficient proof adduced to show attempts at discussion on new term - Effect of - 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)
Gardenia Bakeries (KL) Sdn Bhd v. Shin Chin Peng
(Zura Yahya) [2007] 4 ILR 241

Breach of company rules and policies - Negligence - Claimant’s job involved a high position of trust - Circulation of highly sensitive information belonging to the company - Circulation to unauthorised staff as well as to outside third parties - Excuse of mistake by claimant - Company not suffering losses due to the mistake - Effect of - Whether company’s actions in dismissing claimant bona fide - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Alam Flora (M) Sdn Bhd v. Haryati Jamaluddin
(Siti Saleha Abu Bakar) [2007] 4 ILR 342

Constructive dismissal - Status - Claimant re-designated position - Company citing claimant’s unsatisfactory work performance for re-designation - Claimant objecting - Company refusing to revoke memos -Whether company had managed to prove unsatisfactory performance on part of claimant - Effect of - Whether proper - Conduct of company - Whether mala fide - Whether fundamental breach of terms of employment - Whether justified claimant walking out of employment - Claimant walking out of employment immediately - Whether claimant had condoned breach - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Office Business Management Sdn Bhd & Ors v. Ong Poh Meng
(Amelia Tee Hong Geok Abdullah) [2007] 4 ILR 320

Constructive dismissal - Status - Claimant re-designated position - Whether claimant’s new position was a reduction in status - Claimant in same position as subordinate after re-designation - Effect of - Whether fundamental breach of terms of employment - Whether justified claimant walking out of employment - Claimant walking out of employment immediately - Whether claimant had condoned breach - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Office Business Management Sdn Bhd & Ors v. Ong Poh Meng
(Amelia Tee Hong Geok Abdullah) [2007] 4 ILR 320

Constructive dismissal - Transfer - Claimant asking for deferment of transfer - Claimant’s medical condition due to her pregnancy - Whether claimant’s medical condition was as serious as she alleged - Doctors letters - Date of receipt of letters by company - Effect of - Whether company’s refusal to defer her transfer was a fundamental breach of her terms of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Jurunilai Bersekutu & Anor v. Mastura Mohd Yunus
(Amelia Tee Hong Geok Abdullah) [2007] 4 ILR 294

Constructive dismissal - Transfer - Claimant refusing to follow transfer order - Outright disobedience of a lawful transfer order - Effect of - Company still considering request for deferment of transfer - Claimant resigning and claiming constructive dismissal - Effect of - Whether constructive dismissal proven - Whether fundamental breach of terms of employment by company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Jurunilai Bersekutu & Anor v. Mastura Mohd Yunus
(Amelia Tee Hong Geok Abdullah) [2007] 4 ILR 294

Constructive dismissal - Transfer - No transfer clause in letter of appointment - Effect of - Whether company had implied right to transfer the claimant - Whether claimant had acknowledged company’s right to transfer her - Whether fundamental breach of terms of employment by company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Jurunilai Bersekutu & Anor v. Mastura Mohd Yunus
(Amelia Tee Hong Geok Abdullah) [2007] 4 ILR 294

Criminal record - Criminal record not committed in the course of claimant’s employment with respondent - Not committed against respondent or its employees - Respondent aware of claimant’s criminal record with the police when re-hiring him - Whether amounted to condonation on part of respondent - Effect of - Whether claimant’s criminal record amounted to breach of implied terms of contract of employment between parties - Whether proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Khamis Che Rose v. Malaysian Resources Corporation Berhad
(Chew Soo Ho) [2007] 4 ILR 372

Criminal record - Claimant a good worker - Respondent’s no justification for taking disciplinary action against him - Whether respondent’s actions had been tainted with mala fides - Whether respondent had come to equity with clean hands - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Khamis Che Rose v. Malaysian Resources Corporation Berhad
(Chew Soo Ho) [2007] 4 ILR 372

Insubordination - Failure to comply with shift order - Whether company had the right to implement the shift system - Whether it had been a lawful and reasonable order - Company giving ample notice of shift system to claimants - Whether mala fides by company existed - Claimants aware of consequences of their failure to comply with shift order - Willful disobedience by claimants - Claimants counselled by company - Effect of - Conduct of company - Whether charges proven against claimants - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 13(3)(f) & 20(3)
OYL - Condair Industries Sdn Bhd v. V Periasamy R Varatharaju & Ors
(Siti Saleha Abu Bakar) [2007] 4 ILR 276

Misconduct - Bribery - Whether company had succeeded in establishing the misconduct - Misconduct against company’s rules and regulations - No corroboration or evidence to prove that claimants had taken the bribe - Effect of - Whether corroboration necessary in industrial proceedings - Whether company had condoned claimants actions - Condonation not pleaded in claimants Statement of Case - Whether it could be raised at hearing stage - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
TNB Distribution Sdn Bhd v. Mohd Khapidz Mat Dali & Anor
(Syed Ahmad Radzi Syed Omar) [2007] 4 ILR 254

Misconduct - Claimant allegedly using company funds for own expenses - Whether proven by company - Whether sufficient proof adduced by company - Company condoning such practises in the past - Company actually benefiting - Whether company had successfully discharged its evidential burden - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Ker Su Chon v. PRG-Schultz International Pte Ltd
(Sauffee Afandi Mohamad) [2007] 4 ILR 437

Misconduct - Claimant copying e-mail response to other parties - Whether e-mail contained sensitive information - Whether constituted breach of confidence on claimant’s part - Determination of who the other parties were - Whether other parties had a connection to the affairs of the company - Whether the e-mail had been accessible from the company’s general account - Information in e-mail obtainable from records of the company’s accounts - Whether the company had managed to establish the misconduct against the claimant - Whether dismissal without just cause or excuse – Industrial Relations Act 1967, ss. 2 & 20(3)
Anka Tackle Corporation Sdn Bhd v. Ong Seow Cheng
(Mohd Amin Firdaus Abdullah) [2007] 4 ILR 385

Misconduct - Whether e-mails sent by claimant contained information meant to disparage the company directors - Claimant one of directors - Whether contents of e-mail had been malicious - Whether the directors had been affected by the contents of the e-mail - Whether contents of e-mail had been within claimant’s job scope - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Anka Tackle Corporation Sdn Bhd v. Ong Seow Cheng
(Mohd Amin Firdaus Abdullah) [2007] 4 ILR 385

Retrenchment - Redundancy - Claimant’s application for position within company rejected - No reasons adduced by company for rejection - Intention of company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Lim Yu Sing v. Infineon Technologies (Malaysia) Sdn Bhd
(Rajendran Nayagam) [2007] 4 ILR 474

Retrenchment - Redundancy - Claimants employer being taken over by third party - Claimant given trial period to prove themselves - Company not reimbursing them - Reimbursement by third party - Company dismissing claimants - Whether claimants were workmen of the company within the definition of the Industrial Relations Act 1967 - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mackt Oil & Gas Sdn Bhd v. Yogarajan Govinden & Ors
(Choong Siew Khim) [2007] 4 ILR 287

Retrenchment - Redundancy - Claimant only person retrenched - LIFO principles - Whether applicable - Whether claimant was only person in job category - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Lim Yu Sing v. Infineon Technologies (Malaysia) Sdn Bhd
(Rajendran Nayagam) [2007] 4 ILR 474

Retrenchment - Redundancy - Code of Conduct for Industrial Harmony - Whether had the force of law - Applicability of the code - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Cordoda Corporation Sdn Bhd v. Kuan Chi Meng
(Sauffee Afandi Mohamad) [2007] 4 ILR 457

Retrenchment - Redundancy - Code of Conduct for Industrial Harmony - Legal force of code - Applicability of - Claimant not consulted prior to being retrenched - Company failing to adduce reasons - Claimant rendering services faithfully to company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Lim Yu Sing v. Infineon Technologies (Malaysia) Sdn Bhd
(Rajendran Nayagam) [2007] 4 ILR 474

Retrenchment - Redundancy - Company over forecasting sales revenue - Suffering loss - Undertaking cost cutting measures - Subsequently retrenching - 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)
Cordoda Corporation Sdn Bhd v. Kuan Chi Meng
(Sauffee Afandi Mohamad) [2007] 4 ILR 457

Retrenchment - Redundancy - No notice given to the claimant pre-retrenchment - Effect of - Whether company had been under an obligation to give him notice - Company paying him advance salary - Whether that could take the place of pre-retrenchment notice
Cordoda Corporation Sdn Bhd v. Kuan Chi Meng
(Sauffee Afandi Mohamad) [2007] 4 ILR 457

Retrenchment - Redundancy - Reorganization of business - Right of company to reorganize business - Company not facing financial difficulties - Claimant transferred from position to position - Company outsourcing particular operations previously handled by the claimant - Claimant only person being retrenched - Effect of - Whether there was any mala fide intention on the part of the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Lim Yu Sing v. Infineon Technologies (Malaysia) Sdn Bhd
(Rajendran Nayagam) [2007] 4 ILR 474

Retrenchment- Redundancy - Retirement and redundancy benefits - How computed - Whether should be taken into account by employer - Effect of outsourcing - Employability of claimant - Whether relevant consideration - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Lim Yu Sing v. Infineon Technologies (Malaysia) Sdn Bhd
(Rajendran Nayagam) [2007] 4 ILR 474

Retrenchment - Redundancy - Selection for redundancy - Claimant holding different position when he originally joined the company - Claimant retrenched although with the company longer than colleague - Whether it was seniority in position or seniority in joining company that was important - Whether LIFO principles were applied - Claimant’s colleague possessing more qualifications and skills than the claimant - Effect of - Whether it justified a departure from LIFO - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Cordoda Corporation Sdn Bhd v. Kuan Chi Meng
(Sauffee Afandi Mohamad) [2007] 4 ILR 457

Representation - Claimants failing to attend despite being served with all relevant notices - Advice from solicitors to that effect - Whether that affected the inquiry proceedings - Effect of - Whether prima facie case had been made out against the claimants - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
TNB Distribution Sdn Bhd v. Mohd Khapidz Mat Dali & Anor
(Syed Ahmad Radzi Syed Omar) [2007] 4 ILR 254

Adverse inference - Non-production of material witness - Failure to call - Company failing to call star witness - Relying on documentary evidence - Whether sufficient - Effect of - Whether an adverse inference could be drawn against the company - Evidence Act 1950, ss. 9 & 114(g)
Anka Tackle Corporation Sdn Bhd v. Ong Seow Cheng
(Mohd Amin Firdaus Abdullah) [2007] 4 ILR 385

Documentary evidence - Admissibility - Documents tendered incomplete or selective - Whether tendering of documents was done bona fide - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Anka Tackle Corporation Sdn Bhd v. Ong Seow Cheng
(Mohd Amin Firdaus Abdullah) [2007] 4 ILR 385

Documentary evidence - Claimant in possession of company documents - Whether claimant had obtained documents illegally - Claimant explaining why documents in her possession - Whether her explanation was reasonable - Claimant not misusing the information - Whether claimant had a right to present those documents in her defence - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Anka Tackle Corporation Sdn Bhd v. Ong Seow Cheng
(Mohd Amin Firdaus Abdullah) [2007] 4 ILR 385

Documentary evidence - Findings of Domestic Inquiry - Whether accurate - Contradiction between inquiry notes and evidence in Court - Effect of - Whether claimant had been advised of her rights at inquiry - 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)
Anka Tackle Corporation Sdn Bhd v. Ong Seow Cheng
(Mohd Amin Firdaus Abdullah) [2007] 4 ILR 385

Witness - Credibility - Who was more believable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Gardenia Bakeries (KL) Sdn Bhd v. Shin Chin Peng
(Zura Yahya) [2007] 4 ILR 241

Jurisdiction - Civil suit brought by claimant in Sessions Court on same matter struck off - Effect of - Whether Sessions Court decision bound the Industrial Court - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3), 30(5)
Ker Su Chon v. PRG-Schultz International Pte Ltd
(Sauffee Afandi Mohamad) [2007] 4 ILR 437

Jurisdiction - Illegality of reference - Whether claimant had filed reference whilst still being employed by company - Whether proven - Effect of - Industrial Relations Act 1967
Mohd Roaizan Ayub v. Spansion (Kuala Lumpur) Sdn Bhd
(Mary Shakila Azariah) [2007] 4 ILR 237

Jurisdiction - Territorial jurisdiction - Company a foreign company - Registered in Malaysia - Effect of - Claimant agreeing to be bound by laws of another country in employment agreement - Whether terms of employment agreement superseded position at law - Whether the Industrial Court was seised with jurisdiction to hear the matter - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & Companies Act 1965 ss. 332(1), 332(1A), 332(1)(e)
Ker Su Chon v. PRG-Schultz International Pte Ltd
(Sauffee Afandi Mohamad) [2007] 4 ILR 437

Jurisdiction - Whether Court had threshold jurisdiction - Proper method of challenging jurisdiction - By way of judicial review - Industrial Relations Act 1967
Mohd Roaizan Ayub v. Spansion (Kuala Lumpur) Sdn Bhd
(Mary Shakila Azariah) [2007] 4 ILR 237

Jurisdiction - Whether Court had threshold jurisdiction - Two reference letters from Industrial Relations Department - One not referring to the claimant - No reasons adduced - Effect of - Industrial Relations Act 1967
Mohd Roaizan Ayub v. Spansion (Kuala Lumpur) Sdn Bhd
(Mary Shakila Azariah) [2007] 4 ILR 237

Procedure - Locus standi to represent company - Preliminary objection raised by company - Whether MTUC could represent the 19 claimants - Claimants not members of any trade union - Effect of - Industrial Relations Act 1967 ss. 27(1)(a), 27(1)(b) and 27(1)(c) & Industrial Court Rules ss. 3, 4
Kadam Ak Saai & Ors v. The Malaysian Today Press Sdn Bhd
(Muniandy Kannyappan) [2007] 4 ILR 352

Procedure - Parties - Joinder - Trade dispute - Brought by union - Application to join workman as party to proceedings - Workman since retired from company - Whether union represented interests of workman - Industrial Relations Act 1967, s. 29(a)
Kesatuan Kebangsaan Pekerja-pekerja Dagangan (NUCW) v. Nissho Iwai Corporation And Sojitz Corporation
(Ong Geok Lan) [2007] 4 ILR 433

Remedies - Contractual and Incentive bonus - Whether could be awarded by Court - Company admitting to owing claimant monies - Employers contribution to EPF awarded - Industrial Relations Act 1967, ss. 20(3), 30(5)
Ker Su Chon v. PRG-Schultz International Pte Ltd
(Sauffee Afandi Mohamad) [2007] 4 ILR 437

Collective Agreement - Article on payment of bonus - Discretionary bonus - Certain categories of employees excluded - Union not consulted - Excluded employees given other incentives - Whether bank had complied with terms of the Collective Agreement - Effect of - Industrial Relations Act 1967, s. 56(1)
Bumiputra-Commerce Bank Bhd v. Bumiputra-Commerce Bank Bhd Executive Staff Union, Peninsular Malaysia
(Syed Ahmad Radzi Syed Omar) [2007] 4 ILR 365

Definition of "officer", "official", "office bearer" - Interpretation of - Principles of - Societies Act 1966 ss. 9A, 51
Kadam Ak Saai & Ors v. The Malaysian Today Press Sdn Bhd
(Muniandy Kannyappan) [2007] 4 ILR 352

Definition of "officer", "trade union", "union", "trade dispute", organization of employers - Interpretation of - Principles of statutory interpretation - Industrial Relations Act 1967 s. 2, Trade Unions Act 1959
Kadam Ak Saai & Ors v. The Malaysian Today Press Sdn Bhd
(Muniandy Kannyappan) [2007] 4 ILR 352

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