ILR Bulletin,  Issue 2 2008
December 2007

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INDUSTRIAL LAW REPORTS ISSUE 2 of 2008

Judicial remedies - Judicial review - Dismissal - Reinstatement - Industrial Court ruling award of reinstatement not complied with - Whether erroneous - Whether employer doing everything possible to effectuate reinstatement - Whether amenable to judicial review - Industrial Relations Act 1967, ss. 20, 30(5), 33(1), 33B, 56
Chan Hock Liong v. Associated Motor Industries (M) Sdn Bhd
(Zulkefli Makinudin JCA, Low Hop Bing JCA, Zainun Ali JCA)
[Civil Appeal No: W-02-926-99] [2008] 1 ILR 249

Judicial review - Merits, consideration of - Award of Industrial Court - Compensation - Backwages - Relevant factors - Whether ought to be limited to 24 months - Industrial Court Practice Note No. 1 of 1987 - Loss of future earnings - Whether there was basis to award
Telekom Malaysia Bhd v. Ramli Akim
(James Foong JCA, Raus Sharif JCA, Abdull Hamid Embong JCA)
[Civil Appeal No: S-02-800-2005] [2008] 1 ILR 288

Remedies - Certiorari - Recognition of trade union - Prescribed time frame to respond to claim for recognition - Competency - Procedures of law - Whether rules of natural justice complied with - Industrial Relations Act 1967, s. 9(3), (4), (4A) - Trade Unions Act 1959, ss. 71A(1)(a), 74(1)(c)
Marulee (M) Sdn Bhd v. Menteri Sumber Manusia & Anor
(James Foong JCA, Zaleha Zahari JCA, Abdull Hamid Embong JCA)
[Civil Appeal No: P-01-87-1999] [2008] 1 ILR 260

Veil of incorporation, lifting of - Whether joinder application made to join other parties - Whether appropriate for corporate veil to be lifted - Purpose of lifting the corporate veil - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Hyder Consulting Sdn Bhd v. Chan Yau Liang
(Syed Ahmad Radzi Syed Omar) [2008] 1 ILR 387

Breach of company rules and policies - Dishonesty - Criminal or semi-criminal in nature - Whether proven by the company - Scope of claimant’s duties - Whether discharged - Effect of - Whether the company had managed to establish the misconduct against the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Pos Malaysia Berhad v. Zawiah Abdul Rahman
(Siti Saleha Abu Bakar) [2008] 1 ILR 397

Breach of company rules and policies - Negligence - Claimant aware of practise but perceiving that practise not wrong - No procedural guidelines on matter - Effect of - Claimant participating in practise indirectly - Actions that should have been taken by claimant - Whether Bank had suffered losses - Bank losing trust and confidence in claimant - Whether claimant had breached duty and standard of care - Claimant’s position and length of service - Whether relevant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Southern Bank Berhad v. Johnny Phun Chye Jin
(Mohd Amin Firdaus Abdullah) [2008] 1 ILR 323

Breach of company rules and policies - Negligence - Whether claimant had been irresponsible in the discharge of her duties - Whether claimant had discharged her duties - Non-compliance by claimant to company procedure - Company themselves not following procedure - Effect of - Claimants duties not checked by supervisor - Supervisor contributing to loss suffered by the company - Claimant being held solely responsible - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Pos Malaysia Berhad v. Zawiah Abdul Rahman
(Siti Saleha Abu Bakar) [2008] 1 ILR 397

Breach of duties - Bank aware of claimant’s misperception - Failing to take steps to rectify - Effect of - Whether an unfair labour practise - Whether bank had been deemed to have considered claimant’s appeal under circumstances - Terms of Collective Agreement breached - What steps the bank should have taken - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & 30(5)
Association Of Maybank Class One Officers (AMCO) v. Malayan Banking Berhad
(Chew Soo Ho) [2008] 1 ILR 352

Breach of duties - Claimant issued show cause on 1st charge but found guilty of 2nd charge - Claimant under the impression that found guilty on 1st charge - Claimant abandoning appeal on 2nd charge - Effect of - Bank failing to inform claimant of guilt on 2nd charge - Whether prejudice suffered by the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Association Of Maybank Class One Officers (Amco) v. Malayan Banking Berhad
(Chew Soo Ho) [2008] 1 ILR 352

Constructive dismissal - Change in job function - Claimant admitting to charges of misconduct and demoted after due inquiry conducted - Whether demotion had amounted to a breach of a fundamental term of the contract - Claimant walking out of employment - Effect of - Claimant claiming constructive dismissal - Whether constructive dismissal proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Wan Man Ab Latiff v. Tahan Insurance Malaysia Bhd
(Franklin Goonting) [2008] 1 ILR 373

Constructive dismissal - Change in job function - Whether demotion commensurated with claimant’s misconduct - Whether the company had evinced any mala fide intent - Effect of - Claimant claiming constructive dismissal - Whether constructive dismissal proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Wan Man Ab Latiff v. Tahan Insurance Malaysia Bhd
(Franklin Goonting) [2008] 1 ILR 373

Indirect dismissal - Claimant asked to return to work after filing complaint with industrial relations department - Claimant not complying - Effect of - Whether claimant had abandoned her job - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Nalini Nadeson v. Retinue Sdn Bhd
(Susila Sithamparam) [2008] 1 ILR 341

Indirect dismissal - Whether claimant had been asked to resign - Draft resignation letter prepared by company - Effect of - Conduct of company - Whether threats or force imposed on claimant - Whether claimant had succeeded in proving indirect dismissal - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Nalini Nadeson v. Retinue Sdn Bhd
(Susila Sithamparam) [2008] 1 ILR 341

Insubordination - Superior orders - Claimant failing to obey - Effect of - Company dismissing him on grounds of misconduct - Whether proven by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Guan Fang International Marketing (M) Sdn Bhd v. Leong Khing Khok
(Tan Yeak Hui) [2008] 1 ILR 299

Misconduct - Claimant confiding to third parties - Third parties clients of the company - Whether claimant had breached confidentiality clause in his contract of employment - Whether company had succeeded in establishing the misconducts against the claimant - Standard of care required of the claimant due to the position he held in the company - Company losing trust in the claimant - Effect of - Whether company’s actions in dismissing claimant reasonable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Charles Mok Ngoh Check v. Allied Marine & Equipment Sdn Bhd
(Jalaldin Hussain) [2008] 1 ILR 421

Performance - Claimant failing to adhere to superiors orders - Perceived illegality of superiors orders - Effect of - Whether claimant had to adhere to superiors orders - Under what circumstances - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Guan Fang International Marketing (M) Sdn Bhd v. Leong Khing Khok
(Tan Yeak Hui) [2008] 1 ILR 299

Retrenchment - Redundancy - Determination of who the claimant’s employer was - Factors to consider - Whether the claimant had managed to establish his employment by the company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Hyder Consulting Sdn Bhd v. Chan Yau Liang
(Syed Ahmad Radzi Syed Omar) [2008] 1 ILR 387

Procedural impropriety - Claimant not given a chance to question company witness - Not everything that transpired was recorded - Effect of - Inquiry panel taking into consideration evidence adduced after the conclusion of the inquiry - Effect of - Whether prejudicial to the claimant - Whether the Inquiry had been rendered irregular and improper - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Charles Mok Ngoh Check v. Allied Marine & Equipment Sdn Bhd
(Jalaldin Hussain) [2008] 1 ILR 421

Procedural impropriety - Framing of charges against claimant - Whether contained sufficient particulars for claimant to defend - Whether prejudice caused to claimant - Effect of - Industrial Relations Act 1967
Southern Bank Berhad v. Johnny Phun Chye Jin
(Mohd Amin Firdaus Abdullah) [2008] 1 ILR 323

Procedural impropriety - Whether there was bias on one of the members of the panel - Claimant only objecting to panel member at submission stage - Whether that particular panel member had influenced the outcome of the inquiry - Whether prejudicial to the claimant - Whether the Inquiry had been rendered defective - Whether a travesty of justice had occurred - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Charles Mok Ngoh Check v. Allied Marine & Equipment Sdn Bhd
(Jalaldin Hussain) [2008] 1 ILR 421

Adverse inference - Non-production of a material witness and documents - Failure by company to produce - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & Evidence Act 1950, s. 114(g)
Pos Malaysia Berhad v. Zawiah Abdul Rahman
(Siti Saleha Abu Bakar) [2008] 1 ILR 397

Burden of proof - On claimant to prove who his employer was - Whether discharged - Effect of - Evidence Act 1950, s. 103
Hyder Consulting Sdn Bhd v. Chan Yau Liang
(Syed Ahmad Radzi Syed Omar) [2008] 1 ILR 387

Burden of proof - Who bears - Whether discharged - Effect of - Industrial Relations Act 1967
Nalini Nadeson v. Retinue Sdn Bhd
(Susila Sithamparam) [2008] 1 ILR 341

Documentary evidence - Findings of the Domestic Inquiry - Whether the framing of the charge had been defective - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Pos Malaysia Berhad v. Zawiah Abdul Rahman
(Siti Saleha Abu Bakar) [2008] 1 ILR 397

Procedure - Action - Striking out - Same subject matter adjudicated in High Court and judgement given - Identical facts - Effect of - Whether Industrial Court could re-litigate the issue - Factors to take into account - Court of equity - Industrial Relations Act 1967 ss. 29(a) & 29(g)
Yano Electronics (M) Sdn Bhd v. Fazila Bahadin
(Tan Yeak Hui) [2008] 1 ILR 317

Procedure - Representation - Claimant pleading for reinstatement - Whether claimant could be reinstated due to his medical condition - Powers of the Industrial Court - Creature of statute - Whether the Industrial Court had inherent jurisdiction - Rules of the High Court 1980, O. 76 & Courts of Judicature Act 1964
Kulvinder Singh Sodhi Manmohan Singh v. TNB Distribution Sdn Bhd
(Siti Saleha Abu Bakar) [2008] 1 ILR 366

Procedure - Representation of the claimant by his next friend - Whether provided for in the Industrial Relations Act 1967 - Claimant mentally unfit - What type of evidence was required - Preliminary objection raised by company - Whether claim in Industrial Court personal to claimant - Effect of - Industrial Relations Act 1967,
ss. 27(1) and 29(a)
Kulvinder Singh Sodhi Manmohan Singh v. TNB Distribution Sdn Bhd
(Siti Saleha Abu Bakar) [2008] 1 ILR 366

Employment - Dismissal - Misconduct - Allegation of - Whether proper action taken in terminating plaintiff’s services - Whether charges against plaintiff merit punishment of termination - Whether termination harsh, unfair and unreasonable
Mohd Baharin Hj Abu v. Perbadanan Perwira Harta Malaysia & Anor
(Azmel Maamor J)
[Civil Appeal No: S2(S3)-21-99-1998] [2008] 1 ILR 277

Industrial Court - Award - Judicial review - Compensation - Backwages - Relevant factors - Whether ought to be limited to 24 months - Industrial Court Practice Note No. 1 of 1987 - Loss of future earnings - Whether there was basis to award
Telekom Malaysia Bhd v. Ramli Akim
(James Foong JCA, Raus Sharif JCA, Abdull Hamid Embong JCA)
[Civil Appeal No: S-02-800-2005] [2008] 1 ILR 288

Industrial Court - Award - Reinstatement - Non-compliance - Ruling that award of reinstatement not complied with - Whether Industrial Court rightly exercised its interpretative power in non-compliance proceedings - Industrial Relations Act 1967, ss. 20, 30(5), 33(1), 33B, 56
Chan Hock Liong v. Associated Motor Industries (M) Sdn Bhd
(Zulkefli Makinudin JCA, Low Hop Bing JCA, Zainun Ali JCA)
[Civil Appeal No: W-02-926-99] [2008] 1 ILR 249

Trade union - Recognition - Certiorari - Prescribed time frame to respond to claim for recognition - Competency - Procedures of law - Whether rules of natural justice complied with - Industrial Relations Act 1967, s. 9(3), (4), (4A) - Trade Unions Act 1959, ss. 71A(1)(a), 74(1)(c)
Marulee (M) Sdn Bhd v. Menteri Sumber Manusia & Anor
(James Foong JCA, Zaleha Zahari JCA, Abdull Hamid Embong JCA)
[Civil Appeal No: P-01-87-1999] [2008] 1 ILR 260

Award - Company wound-up - Whether company had sufficient funds to meet the award - Claimant lodging Proof of Debt with Liquidator - Liquidator unable to pay claimant - Effect of - Whether appropriate for court to order compliance - Industrial Relations Act 1967, s. 56(1)
Mohd Moosa Mohd Arif v. Luen Heng Industries Berhad
(Soo Ai Lin) [2008] 1 ILR 384

Award - Domestic remedies - Whether issues already determined could be re-opened and re-litigated vide a variation application - Purpose of a variation application - Whether applicant had come to court with clean hands - Award sought to be impugned arrived at after full hearing - Effect of - Whether court functus officio - Whether applicant had been given opportunity to present its case - Its failure to do so - Whether the claimant could now be held responsible for applicant’s failure - Functions of the Industrial Court - Court of equity and good conscience - Industrial Relations Act 1967, ss. 33A & 33(2) and Industrial Court Rules 1967, Rule 15
Teo Bee Hung v. LJS Resources Sdn Bhd
(Muniandy Kannyappan) [2008] 1 ILR 411

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