ILR Bulletin, Issue 2008, Vol 05
May 2008

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INDUSTRIAL LAW REPORTS ISSUE 5 of 2008

AWARDS REPORTED

SUBJECT INDEX

Remedies - Certiorari and mandamus - Cancellation of registration as professional engineer - Disciplinary proceedings - Whether there were breaches of procedural fairness and natural justice - Registration of Engineers Act 1967, s. 15(2) - Federal Constitution, arts. 5(1), 8(1)
Lembaga Jurutera Malaysia v. Leong Pui Kun
(Mokhtar Sidin JCA, Denis Ong JCA, Vincent Ng J) [2008] 2 ILR 237

Rules of natural justice - Cancellation of registration as professional engineer - Certiorari and mandamus - Disciplinary proceedings - Whether there were breaches of procedural fairness and natural justice - Registration of Engineers Act 1967, s. 15(2) - Federal Constitution, arts. 5(1), 8(1)
Lembaga Jurutera Malaysia v. Leong Pui Kun
(Mokhtar Sidin JCA, Denis Ong JCA, Vincent Ng J) [2008] 2 ILR 237

Fundamental liberties - Fundamental rules of natural justice - Cancellation of registration as professional engineer - Certiorari and mandamus - Disciplinary proceedings - Whether there were breaches of procedural fairness and natural justice - Registration of Engineers Act 1967, s. 15(2) - Federal Constitution, arts. 5(1), 8(1)
Lembaga Jurutera Malaysia v. Leong Pui Kun
(Mokhtar Sidin JCA, Denis Ong JCA, Vincent Ng J) [2008] 2 ILR 237

Breach of company rules and policies - Cheating - Claimant procuring money from workshop for fraudulent purpose - Whether proven by workshop - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mohamad Ali Tajol Arus v. CL Cheong Motor Workshop
(Rajendran Nayagam) [2008] 2 ILR 360

Breach of company rules and policies - Negligence - Claimant’s manning of the GPS system - Whether claimant had been trained in its usage - Whether the claimant had followed procedure - Claimant unaware of hijacking from monitoring of the screen - Whether company had proven claimant’s negligence - Scope of claimant’s duties - Whether discharged - Effect of - Whether the company had managed to establish the misconduct against the claimant - Whether claimant’s defence had been acceptable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Unisem (M) Berhad v. Selamat Kantan
(Choong Siew Khim) [2008] 2 ILR 312

Breach of company rules and policies - Negligence - Claimant’s manning of the GPS system - Whether the company had put a workable system into place with clear guidelines and procedure - Whether the claimant could solely be blamed for the incident - Claimant failing to follow procedure of the company - 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)
Unisem (M) Berhad v. Selamat Kantan
(Choong Siew Khim) [2008] 2 ILR 312

Breach of company rules and policies - Negligence - Whether company’s decision in terminating claimant’s services too harsh - What would have been a better option - 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)
Unisem (M) Berhad v. Selamat Kantan
(Choong Siew Khim) [2008] 2 ILR 312

Breach of company rules and policies - Retirement age - Discrepancy in collective agreement and contract of employment - Collective agreement binding on which parties - Whether claimant’s job scope came within the ambit of the collective agreement - Union not in existence when claimant joined the company - Which term took precedence - Effect of - Conduct of company - Intention of company - Whether mala fide proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 13(3)(a), 17(1) & 20(3)
Agricultural Chemicals (M) Sdn Bhd v. Cheah Soo Tuan
(Mohd Amin Firdaus Abdullah) [2008] 2 ILR 301

Breach of company rules and policies - Retirement age - Whether the claimant had been forced to retire - Whether proven by claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Agricultural Chemicals (M) Sdn Bhd v. Cheah Soo Tuan
(Mohd Amin Firdaus Abdullah) [2008] 2 ILR 301

Constructive dismissal - Benefits - Claimant’s SRA withdrawn after he was given accommodation by the company - Whether reasonable - Purpose of the SRA - Claimant not bringing up the issue until he resigned - Whether he had waived the company’s breach - Claimant walking out of employment - Claimant claiming constructive dismissal - Whether constructive dismissal proven - 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)
East Orient Transport Sdn Bhd v. Zainal Abidin Zakaria
(Zura Yahya) [2008] 2 ILR 325

Constructive dismissal - Change in job functions - Time period within which claimant walking out and claiming constructive dismissal - Effect of - Whether the council had been within their rights in seeking an explanation from the claimant in respect of her behaviour and performance - Whether council had been within their rights in issuing her a show cause letter - Effect of - Whether claimant had the opportunity to respond - Intention of council - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Majlis Peguam Malaysia v. Manindeerjeet Kaur Piara Singh
(Siti Saleha Abu Bakar) [2008] 2 ILR 387

Constructive dismissal - Complaint against claimant - 2 years prior to claimant claiming constructive dismissal - Whether it could be taken into account - Whether there had been an express or implied breach of the claimant’s terms of employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Majlis Peguam Malaysia v. Manindeerjeet Kaur Piara Singh
(Siti Saleha Abu Bakar) [2008] 2 ILR 387

Constructive dismissal - Salary - Claimant allegedly promised increase upon confirmation - Whether proven - Claimant not bringing up the issue until he resigned - Claimant going back to work after resigning - Effect of - Whether company had given the claimant an increment - Whether by such conduct he had waived the company’s breach - Claimant walking out of employment - Claimant claiming constructive dismissal - Whether constructive dismissal proven - 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)
East Orient Transport Sdn Bhd v. Zainal Abidin Zakaria
(Zura Yahya) [2008] 2 ILR 325

Constructive dismissal - Status - Claimant not entitled to company loans - Loans granted to him on a discretionary basis - Whether he had been under an obligation to pay back the loans when requested - Company deducting the full loan sum from his salary - Whether that had been reasonable - Claimant walking out of employment - Claimant claiming constructive dismissal - Whether constructive dismissal proven - 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)
East Orient Transport Sdn Bhd v. Zainal Abidin Zakaria
(Zura Yahya) [2008] 2 ILR 325

Constructive dismissal - Status - Whether claimant had been forced to take instructions from the clerks - Whether proven by claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Majlis Peguam Malaysia v. Manindeerjeet Kaur Piara Singh
(Siti Saleha Abu Bakar) [2008] 2 ILR 387

Constructive dismissal - Status - Whether claimant had been discriminated against - Point of comparison - Whether proven - Claimant admitting that other employees had been performing different job functions - Effect of - Claimant claiming constructive dismissal - Whether constructive dismissal proven - 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)
East Orient Transport Sdn Bhd v. Zainal Abidin Zakaria
(Zura Yahya) [2008] 2 ILR 325

Constructive dismissal - Status - Whether claimant had been required to report to his peer - Whether proven by claimant - Whether there had been an express or implied breach of the claimant’s terms of employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
S Panneer Selvam Subramaniam v. Dolomite Industries Co Sdn Bhd
(Jalaldin Hussain) [2008] 2 ILR 407

Constructive dismissal - Transfer - Claimant not given prior notice - Whether notice had been necessary - Whether reasons given by council for failure to give prior notice had been acceptable - Claimant not given a job description - Effect of - Claimant moved from department to department to accommodate her problems and a lessened workload - Intention of the company - Whether failure had constituted a breach of the terms of her employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Majlis Peguam Malaysia v. Manindeerjeet Kaur Piara Singh
(Siti Saleha Abu Bakar) [2008] 2 ILR 387

Constructive dismissal - Transfer - Whether within company’s prerogative - Whether a lawful transfer order - Company giving the claimant a second chance by transferring him and reducing his duties - Whether the claimant had been able to handle his job functions - Intention of the company - Effect of - Whether company had intended to be bound by their contract of employment with the claimant - Whether claimant had abandoned his job - Whether there had been a breach of the terms of his employment - Effect of -Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
S Panneer Selvam Subramaniam v. Dolomite Industries Co Sdn Bhd
(Jalaldin Hussain) [2008] 2 ILR 407

Misconduct - Past misconduct - Whether relevant and could be taken into account - When past misconduct would be relevant - Whether reference to the past misconduct would be taking the matter outside the ambit of the Minister’s reference - Duty of the court - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3)
JW Marriot Hotel, Kuala Lumpur & Anor v. Mohd Raffie Islam Abdullah & Anor
(Ong Geok Lan) [2008] 2 ILR 366

Notice of termination - Forced resignation - Claimant resigning with immediate effect contrary to terms in company handbook - Company would have suffered by such resignation - Effect of - Company paying the claimant gratuity payments upon his resignation - Subsequent job taken on by claimant - Effect of - What the conduct of the company showed - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Ahmad Shaifol Affendi B Yahaya v. Camfil Air Filter Sdn Bhd
(Choong Siew Khim) [2008] 2 ILR 338

Performance - Claimant not ensuring records updated - Whether updating of records had been within claimant’s job scope - Claimant absolving himself of responsibility - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
S Panneer Selvam Subramaniam v. Dolomite Industries Co Sdn Bhd
(Jalaldin Hussain) [2008] 2 ILR 407

Performance - Unsatisfactory performance - Evidence produced by company - Whether company had succeeded in proving - Effect of - Whether company’s actions mala fides - Whether proven - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(1) & 20(3)
Ahmad Shaifol Affendi B Yahaya v. Camfil Air Filter Sdn Bhd
(Choong Siew Khim) [2008] 2 ILR 338

Victimisation - Whether company had intended to get rid of the claimant - Conduct of company - Whether proven by claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
S Panneer Selvam Subramaniam v. Dolomite Industries Co Sdn Bhd
(Jalaldin Hussain) [2008] 2 ILR 407

Procedural impropriety - Duty of the Chairman - Correct test to be applied - Whether the Chairman had performed his duty properly and addressed himself to the relevant facts and evidence in arriving at his conclusion - Effect of - Fairness of the inquiry - Whether questionable - Whether it rendered the DI defective - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
S Panneer Selvam Subramaniam v. Dolomite Industries Co Sdn Bhd
(Jalaldin Hussain) [2008] 2 ILR 407

Procedural impropriety - No DI notes - Basis of company’s decision in finding the claimant guilty a mystery - Effect of - Regularity and fairness of the inquiry - Whether questionable - Whether it rendered the DI defective - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
S Panneer Selvam Subramaniam v. Dolomite Industries Co Sdn Bhd
(Jalaldin Hussain) [2008] 2 ILR 407

Procedural impropriety - Whether claimant had been aware of the charges brought against him - Whether claimant had been given sufficient time to respond - Failure by the company to stipulate specific charges against the claimant - Effect of - Whether the claimant had been prejudiced - Whether lack of specific charges had been fatal to the company’s case - Whether the DI had been valid - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
S Panneer Selvam Subramaniam v. Dolomite Industries Co Sdn Bhd
(Jalaldin Hussain) [2008] 2 ILR 407

Burden of proof - Whether discharged by company - Company failing to call a material witness to rebut claimant’s testimony - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Ahmad Shaifol Affendi B Yahaya v. Camfil Air Filter Sdn Bhd
(Choong Siew Khim) [2008] 2 ILR 338

Jurisdiction - Claimant failing to ask for reinstatement - Whether the court had jurisdiction to hear the matter - Company failing to object at the outset - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Ahmad Shaifol Affendi B Yahaya v. Camfil Air Filter Sdn Bhd
(Choong Siew Khim) [2008] 2 ILR 338

Procedure - Parties - Joinder - Nexus - Whether Existed - Financial status of the respondent - Whether relevant - Effect of - Whether both limbs of the test had been satisfied - Whether joinder necessary to make adjudication enforceable and effective - Whether prejudice would be caused to 2nd company - Industrial Relations Act 1967, s. 29(a)
Tang Chang Kang v. Lega Kemas Sdn Bhd
(Yamuna Menon) [2008] 2 ILR 374

Procedure - Parties - Joinder - Lifting of the corporate veil - Respondent bought over by Apex - Whether purchase price of transaction was relevant - Whether background facts had raised questions which justified the lifting of the corporate veil - Whether joinder necessary to make adjudication enforceable and effective - Whether prejudice would be caused to 2nd company - Industrial Relations Act 1967, s. 29(a)
Tang Chang Kang v. Lega Kemas Sdn Bhd
(Yamuna Menon) [2008] 2 ILR 374

Procedure - Pleadings - Application to expunge documents in company’s Bundle of Documents - Whether the documents were connected to the claimant’s dismissal - Effect of - Whether reference to those documents would occasion delay - Court of equity - Industrial Relations Act 1967, s. 20(3)
JW Marriot Hotel, Kuala Lumpur & Anor v. Mohd Raffie Islam Abdullah & Anor
(Ong Geok Lan) [2008] 2 ILR 366

Remedies - Claimant not asking for reinstatement - Effect of - Whether court could award compensation in lieu of reinstatement under such circumstances - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967
Ahmad Shaifol Affendi B Yahaya v. Camfil Air Filter Sdn Bhd
(Choong Siew Khim) [2008] 2 ILR 338

Employment - Disciplinary proceeding - Cancellation of registration as professional engineer - Certiorari and mandamus - Whether there were breaches of procedural fairness and natural justice - Registration of Engineers Act 1967, s. 15(2) - Federal Constitution, arts. 5(1), 8(1)
Lembaga Jurutera Malaysia v. Leong Pui Kun
(Mokhtar Sidin JCA, Denis Ong JCA, Vincent Ng J) [2008] 2 ILR 237

Engineers - Registration - Cancellation - Certiorari and mandamus - Disciplinary proceedings - Whether there were breaches of procedural fairness and natural justice - Registration of Engineers Act 1967, s. 15(2) - Federal Constitution, arts. 5(1), 8(1)
Lembaga Jurutera Malaysia v. Leong Pui Kun
(Mokhtar Sidin JCA, Denis Ong JCA, Vincent Ng J) [2008] 2 ILR 237

INDEKS PERKARA

MAHKAMAH PERUSAHAAN

Bidangkuasa - YM enggan ditempatkan semula dengan responden - YM telah mendapat kerja baru - Kesannya - Sama ada mahkamah mempunyai bidangkuasa untuk mendengar kes ini - Akta Mahkamah Perusahaan 1967 s. 29(d)
Tuah Guard (M) Sdn Bhd lwn. Mohd Sharom Ahmad
(Kamaruzaman Ab Jalil) [2008] 2 ILR 348

Remedi - Gaji kebelakangan - Tempoh yang diawardkan - Bagaimana dikira - Faktor yang diambil kira - Akta Mahkamah Perusahaan 1967, s. 20(3)
Tuah Guard (M) Sdn Bhd lwn. Mohd Sharom Ahmad
(Kamaruzaman Ab Jalil) [2008] 2 ILR 348

Notis penamatan kerja - Tiada sebab dinyatakan mengapa YM diberhentikan - Kesannya - Responden mendakwa telah memberi amaran secara lisan kepada YM - Tidak disokong oleh apa-apa bukti berdokumen - Sama ada responden seharusnya memberikan amaran bertulis kepada YM - Kesannya - Sama ada pembuangan kerja YM adalah tanpa alasan atau sebab yang adil - Akta Mahkamah Perusahaan 1967, s. 20(3)
Tuah Guard (M) Sdn Bhd lwn. Mohd Sharom Ahmad
(Kamaruzaman Ab Jalil) [2008] 2 ILR 348

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