ILR Bulletin, Issue 2008, Vol 08
August 2008

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INDUSTRIAL LAW REPORTS ISSUE 8 of 2008

AWARDS REPORTED

SUBJECT INDEX

Breach of company rules & policies - Negligence - Whether claimant had followed company guidelines - Whether company guidelines had covered superior orders - Claimant following orders of immediate superior - No gain to the claimant - Whether superior’s orders had been lawful - Past practise of the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Malayan Banking Berhad v. Roslinda Hassan
(Syed Ahmad Radzi Syed Omar) [2008] 3 ILR 368

Breach of company rules & policies - Negligence - Whether claimant solely to blame for lack in procedure which led to incident - Superior officer identifying and making use of gap in guidelines - Functions and duties of the claimant - Whether doctrine of superior orders applied - Effect of - Previous practise of the company - Duration that claimant had held the appointment - Whether relevant - Whether collective responsibility had existed on part of company - Whether there had been lack of supervision by company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Malayan Banking Berhad v. Roslinda Hassan
(Syed Ahmad Radzi Syed Omar) [2008] 3 ILR 368

Breach of company rules and policies - Retirement age - Not stipulated in employment contract - Stipulated in Company Employment Handbook which came out after employment contracts signed by claimants - Whether company could unilaterally alter the terms in the contract of service - Effect of - Whether the doctrine of absolute freedom of contract applied - Intention of the Industrial Relations Act - Approach to be taken by the court - No collective agreement signed between parties - Whether the unions consent had been required under the circumstances - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Gan Soh Eng & Ors v. Guppy Plastic Industries Sdn Bhd
(Rajendran Nayagam) [2008] 3 ILR 414

Breach of company rules and policies - Retirement age - Whether it had been reasonable and fair - Whether proven by company - Whether company had shown special reasons for setting different ages of retirement for male and female employees - Whether the employees had had a reasonable expectation to continue working in the company beyond 50 years of age - Previous practise of the company - Whether the imposition of different retirement ages for male and female employees had been an unfair labour practise - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Gan Soh Eng & Ors v. Guppy Plastic Industries Sdn Bhd
(Rajendran Nayagam) [2008] 3 ILR 414

Constructive dismissal - Relationship between claimant and immediate superior strained - Claimant issued show cause letter - Claimant giving explanations - Previous practise of the company - Claimant possessed clean record of service - Whether taken into account by the company - Effect of - Whether constructive dismissal proven by the claimant - Effect of - Conduct of the company - Whether repudiatory breach had existed - Whether claimant had succeeded in proving constructive dismissal - Whether claimant had been justified in walking out of employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Selvarajoo Palaniappa Pillai v. Dumex (M) Sdn Bhd
(Mary Shakila Azariah) [2008] 3 ILR 434

Constructive dismissal - Status - Claimant accepting new job offer - Claimant informed the company - Company asking the claimant to clear her belongings - Whether company’s actions had been reasonable - Claimant subsequently changing her mind - Claimant citing dismissal and seeking reinstatement to original position with the company - Conduct of claimant - Whether reasonable - Effect of - 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)
Hairani Othman v. American Home Assurance Company
(Mary Shakila Azariah) [2008] 3 ILR 257

Fixed term contract - Premature termination - Whether it could be terminated prematurely - Whether is had been termination simpliciter - Effect of - Clause stipulating compensation payable in the event of termination - Whether claimant had been aware of the clause - Whether the respondent had complied - Claimant not disputing calculation of compensation at material time - Conduct of claimant - Effect of - Whether the claimant had come to equity with clean hands - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Celcom (Malaysia) Berhad v. Chin Chun Yean
(Chew Soo Ho) [2008] 3 ILR 462

Fixed term contract - Premature termination - Contract stipulating compensation payable in the event of premature termination - Agreed upon by parties after negotiations - Respondent complying - Claimant claiming for housing, leave passage (holiday) and the performance/incentive bonus - Whether they had been allowances - Conduct of claimant - Whether claimant’s conduct had been equitable - Effect of -Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Celcom (Malaysia) Berhad v. Chin Chun Yean
(Chew Soo Ho) [2008] 3 ILR 462

Fixed term contract - Whether claimant’s contract was a genuine fixed term contract - Claimant not signing Second Contract until 5 months later - Reasons for the delay - Intention of parties - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Ng Seo Ling v. Cardas Research & Consulting Group
(Umi Kalthum Abdul Majid) [2008] 3 ILR 313

Fixed term contract - Whether claimant had signed under duress - Conduct of claimant - Claimant failing to object or raise protest - Effect of - Claimant believing that her employment was permanent - Whether her belief had been reasonable - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3) & Contracts Act 1950, s. 15 & Evidence Act 1950, ss. 102 and 103
Ng Seo Ling v. Cardas Research & Consulting Group
(Umi Kalthum Abdul Majid) [2008] 3 ILR 313

Insubordination - Claimant absent from office without leave - Whether proven by the respondent - Whether permission had to be obtained from respondent - Whether there were directives to that effect - Whether claimant had notice of the directives - Effect of - Whether claimant in his position should have set an example to his subordinates - Whether insubordination proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Tuan Hj Mohd Noor Sandiman v. Federal Power Sdn Bhd
(Chew Soo Ho) [2008] 3 ILR 382

Insubordination - Claimant failing to respond to e-mails - Claimant issued show cause letter - Claimant’s explanations - Whether reasonable - Claimant’s position in company - Whether claimant should have set an example to his subordinates - Claimant’s attitude - Whether misconduct proven by the respondent - Effect of - Whether claimant’s conduct had been reasonable - Whether insubordination proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & Evidence Act 1950, ss. 102 and 103
Tuan Hj Mohd Noor Sandiman v. Federal Power Sdn Bhd
(Chew Soo Ho) [2008] 3 ILR 382

Insubordination - Failure to follow transfer/secondment order - Whether secondment order had been null and void - Difference between secondment and transfer - Who pays salary - Who had right to dismiss - Whether consent of the claimant had been required for secondment - Failure to obtain - Effect of - Claimant not consulted on secondment - Claimant objecting to secondment - Whether transfer/secondment had come within the ambit of the claimants employment contract - Separate legal entities of the company’s - Effect of - Whether proper - Conduct of company - Whether mala fide - Whether claimant had been justified in refusing to comply with his transfer/secondment order - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
A Majid Maidin v. Malaysia International Shipping Corporation Berhad
(Susila Sithamparam) [2008] 3 ILR 297

Misconduct - Claimant accessing superiors e-mails - Superior not aware - Whether the e-mails had been private and confidential e-mails - Effect of - Whether claimant’s actions had been illegal - Whether the claimant had committed a criminal offence - Job scope of claimant - Claimant’s explanations - Whether reasonable - Claimant’s position in respondent company - Whether misconduct proven by the respondent - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & Communications and Multimedia Act 1998, s. 234(1)
Dynacraf Industries Sdn Bhd v. Lee Kooi Khoon
(Chew Soo Ho) [2008] 3 ILR 265

Misconduct - Claimant sending package containing e-mails to head of organization - Claimant’s handwriting on e-mails - Expert opinion adduced by respondent - Whether could be relied on - Effect of -Intention of the claimant - Effect of - Whether claimant had breached her position of trust and confidence - Whether the respondents action in dismissing her had been reasonable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & Evidence Act 1950, s. 45
Dynacraf Industries Sdn Bhd v. Lee Kooi Khoon
(Chew Soo Ho) [2008] 3 ILR 265

Misconduct - Obtaining confidential e-mail from other employees - Whether proven by respondent - Whether there had been a collaboration between the claimant and the sender of the e-mail - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Dynacraf Industries Sdn Bhd v. Lee Kooi Khoon
(Chew Soo Ho) [2008] 3 ILR 265

Misconduct - Sending confidential e-mail to other employees - Whether proven by respondent - Whether respondent had discharged its onus of proof - Witnesses called by the respondent - Whether sufficient - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Dynacraf Industries Sdn Bhd v. Lee Kooi Khoon
(Chew Soo Ho) [2008] 3 ILR 265

Misconduct - Whether charges against claimant had come under heading of misconduct as per Employee’s Handbook - Effect of - Whether proven by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Selvarajoo Palaniappa Pillai v. Dumex (M) Sdn Bhd
(Mary Shakila Azariah) [2008] 3 ILR 434

Absence of - Whether constituted a breach of natural justice - Whether curable - How curable - Effect of - Industrial Relations Act 1967
Dynacraf Industries Sdn Bhd v. Lee Kooi Khoon
(Chew Soo Ho) [2008] 3 ILR 265

Procedural impropriety - Annexures to notes of inquiry panel not produced - Effect of - Whether respondent had satisfied their burden of proof - Whether prima facie case established against the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Tuan Hj Mohd Noor Sandiman v. Federal Power Sdn Bhd
(Chew Soo Ho) [2008] 3 ILR 382

Procedural impropriety - Claimant not given material documents to prepare for inquiry - Effect of - Whether there had been a full disclosure of facts by the company - Whether the company had proven a prima facie case against the claimant - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Malayan Banking Berhad v. Roslinda Hassan
(Syed Ahmad Radzi Syed Omar) [2008] 3 ILR 368

Procedural impropriety - Constitution of the inquiry panel - Whether the inquiry had been a genuine exercise - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Dynacraf Industries Sdn Bhd v. Lee Kooi Khoon
(Chew Soo Ho) [2008] 3 ILR 265

Procedural impropriety - Domestic Inquiry held after claimant terminated from employment - No retraction of termination letter - Effect of - Intent and purpose of the Domestic Inquiry - Whether claimant’s failure to attend had been a waiver of her rights - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Dynacraf Industries Sdn Bhd v. Lee Kooi Khoon
(Chew Soo Ho) [2008] 3 ILR 265

Jurisdiction - Whether court had jurisdiction to hear the matter - Claimant abandoning her claim for reinstatement - Effect of - Industrial Relations Act 1967, s. 20(3)
Jagvinder Kaur H Pritam Singh v. Royal Selangor International Sdn Bhd
(Franklin Goonting) [2008] 3 ILR 293

Jurisdiction - Whether court had jurisdiction to hear the matter - Claimant offered reinstatement at conciliation proceedings - Offer rejected - Effect of - Whether the rejection of the offer had been admissible before the court - Whether the offer came within the provisions of s. 54(2) of the Industrial Relations Act - Industrial Relations Act 1967 ss. 20(1) & 54(2)
Phua Sow Bee v. Sam Hong Construction Sdn Bhd
(Susila Sithamparam) [2008] 3 ILR 426

Jurisdiction - When claimant made representation - Whether provisions of s. 20(1A) had been complied with - Whether mandatory - When time started to run - Whether reference made within time - Effect of - Whether court had jurisdiction to hear the matter - Effect of - Industrial Relations Act 1967, s. 20(1A)
Lau Ah Teck v. Saint Gobain Terreal (M) Sdn Bhd
(Jalaldin Hussain) [2008] 3 ILR 328

Remedies - Punishment - Whether dismissal had been too harsh under the circumstances - Mitigating circumstances - Effect of - Industrial Relations Act 1967
Malayan Banking Berhad v. Roslinda Hassan
(Syed Ahmad Radzi Syed Omar) [2008] 3 ILR 368

Remedies - Reinstatement - Claimant not wanting the remedy of reinstatement - Effect of - Whether the court had jurisdiction to hear the case - Conflicting decisions on the matter - Whether dismissal had been without just cause and excuse
A Majid Maidin v. Malaysia International Shipping Corporation Berhad
(Susila Sithamparam) [2008] 3 ILR 297

Social security - Accidents while traveling - Employee traveling from workplace to home - Whether commuting accident within s. 24(1)(a) and (b) of the Employees Social Security Act 1969 - Whether such commuting fell within the phrase ‘connected’ - Whether tribunal had taken into account irrelevant considerations or misconstrued terms of relevant statute - Whether there were substantial questions of law to justify hearing of appeal
Ketua Pengarah Pertubuhan Keselamatan Sosial v. Tham Tian Siong
(Hamid Sultan Abu Backer JC) [2008] 3 ILR 245

‘Secondment’ and ‘transfer’ - Meaning of - Differences between the definitions - Whether the claimant had been transferred or seconded - Whether secondment directive had been converted into a transfer order - Whether dismissal had been without just cause and excuse
A Majid Maidin v. Malaysia International Shipping Corporation Berhad
(Susila Sithamparam) [2008] 3 ILR 297

INDEKS PERKARA

Bidangkuasa - Sama ada mahkamah mempunyai budibicara untuk menggantung prosidingnya - Kesannya - Akta Mahkamah Perusahaan 1967
Md Zain Ismail lwn. Jadi Imaging Technologies Sdn Bhd
(Hapipah Monel) [2008] 3 ILR 457

Prosidur - Tindakan - Permohonan untuk penggantungan prosiding - Sama ada isu yang dibicarakan di Mahkamah Tinggi merupakan isu sama yang dihadapan Mahkamah Perusahaan - Isu yang diplidkan oleh YM - Kesannya - Akta Mahkamah Perusahaan 1967
Md Zain Ismail lwn. Jadi Imaging Technologies Sdn Bhd
(Hapipah Monel) [2008] 3 ILR 457

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