ILR Bulletin, Issue 2008, Vol 09
September 2008

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INDUSTRIAL LAW REPORTS ISSUE 9 of 2008

AWARDS REPORTED

SUBJECT INDEX

Absenteeism - Claimant failing to turn up for work without excuse - Admitted by the claimant - Effect of - Whether it had been a serious breach of his contract of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Prasad Dass KN Devadas v. Yeo Hiap Seng (Malaysia) Berhad
(Fredrick Indran XA Nicholas) [2008] 3 ILR 538

Breach of company rules and policies - Claimant deviating from authorised route - Involved in an accident - Huge losses suffered by the company - Claimant lying as to the reasons for the deviation from the route - Claimant attending to personal matters without authorisation - Claimant admitting the same - 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)
Ismail Long Mat v. Persila Sdn Bhd
(Ong Geok Lan) [2008] 3 ILR 494

Constructive dismissal - Benefits - Medical leave - Company failing to acknowledge claimant’s medical certificate - Medical certificate from a non-panel clinic - Claimant’s pay being deducted - Effect of - Conduct of company - Whether it had been unreasonable - Balance of medical and annual leave - Whether claimant had any prior history of such misconduct in obtaining medical leave from a non-panel doctor - Effect of - Whether claimant had been driven out of his employment - 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)
Sim Kok Seng v. Tritex Containers Sdn Bhd
(Siti Saleha Abu Bakar) [2008] 3 ILR 508

Constructive dismissal - Change in job function - Demotion - Whether it had been a unilateral change imposed by the company - Whether terms of Company Employee Handbook complied with by company - Which company handbook had been applicable - Whether claimant had been aware of new version of company handbook - Whether proven by company - Effect of - Whether company’s actions mala fides - Whether proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Lam Sok Mui v. Bokia (M) Sdn Bhd
(Jalaldin Hussain) [2008] 3 ILR 629

Constructive dismissal - Salary - Reduction to level below commencement salary - Claimant not aware of changes - Whether terms of Company Employee Handbook complied with by company - Whether claimant had condoned the breach - Conduct of claimant - Time period within which the claimant left - Effect of - Whether respondent’s actions mala fides - Whether proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Lam Sok Mui v. Bokia (M) Sdn Bhd
(Jalaldin Hussain) [2008] 3 ILR 629

Constructive dismissal - Transfer - Additional costs incurred by the claimant in travelling to new work place - Whether constituted a breach of the fundamental clause in the claimants contracts of employment - Whether the claimants transfer clauses had contained any restrictions - Whether it had constituted good grounds for constructive dismissal - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Aminuddin Mohd Osman & Anor v. Guthrie Landscaping Sdn Bhd
(Chew Soo Ho) [2008] 3 ILR 613

Constructive dismissal - Transfer - Clause in contract of employment - Construction of - Whether the transfer had been within the respondent’s prerogative - Whether a lawful transfer order - Effect of - Whether company had intended to be bound by their contract of employment with the claimant - Whether there had been a breach of the terms of claimants’ employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Aminuddin Mohd Osman & Anor v. Guthrie Landscaping Sdn Bhd
(Chew Soo Ho) [2008] 3 ILR 613

Constructive dismissal - Transfer - Intention of the respondent company - Whether transfer had been done bona fide - Whether the respondent had faced financial constraints - Whether there had been a reduction of workforce - 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)
Aminuddin Mohd Osman & Anor v. Guthrie Landscaping Sdn Bhd
(Chew Soo Ho) [2008] 3 ILR 613

Constructive dismissal - Transfer - Transport and other allowances - Whether it had been fixed - Whether it had been job specific - Whether claimants had been entitled to it when they had been transferred to new jobs - Allowances being withdrawn - Whether it had constituted good grounds for constructive dismissal - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Aminuddin Mohd Osman & Anor v. Guthrie Landscaping Sdn Bhd
(Chew Soo Ho) [2008] 3 ILR 613

Constructive dismissal - Transfer - Whether less chances or earning overtime or other allowances good grounds for claiming constructive dismissal - Provision for such payments in the contract of employment - Whether it had been job specific - Whether the claimant’s had been entitled to it after their transfer - Performance of new job functions - Claimants salaries unchanged - Whether constituted a breach of the fundamental clause in the claimants contracts of employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Aminuddin Mohd Osman & Anor v. Guthrie Landscaping Sdn Bhd
(Chew Soo Ho) [2008] 3 ILR 613

Insubordination - Claimant failing to report news as directed by her superiors - Whether claimant’s explanations had been reasonable - Whether her superiors had accepted her explanations - Whether claimant had failed to follow her superior’s directive - Whether the respondent company had been unreasonable in insisting that she report the news - Conduct of respondent company - Relationship between claimant and her superior - Effect of - Whether the respondent company had acted mala fide - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Norzahizan Ismail v. Utusan Melayu (Malaysia) Bhd
(Mohd Amin Firdaus Abdullah) [2008] 3 ILR 557

Misconduct - 1st claimant’s personal e-mails - Typed on company computers and sent during office hours - Whether e-mails had belonged to the company - Effect of - Claimant’s explanations - Whether reasonable - Claimant’s position in company - Whether misconduct proven by the company - Conduct of the company in escorting the claimant off the premises like a criminal - Effect of - Whether had been too harsh under the circumstances - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Rachel Mathews & Anor v. Basf (Malaysia) Sdn Bhd
(Rajendran Nayagam) [2008] 3 ILR 709

Misconduct - 1st claimant participating in sending derogatory e-mails on her immediate superior - Whether acceptable - Position held by the 1st claimant - Effect of - Conduct of 1st claimant - Intention of the 1st claimant - Whether 1st claimant had breached her position of trust and confidence - Whether the company’s action in dismissing her had been reasonable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Rachel Mathews & Anor v. Basf (Malaysia) Sdn Bhd
(Rajendran Nayagam) [2008] 3 ILR 709

Notice of termination - Termination simpliciter - Whether termination by contractual notice overrode the ministerial reference to court - Functions of the Industrial Court - Whether estoppel could be raised in the Industrial Court - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
David Loong Kok Wai v. Hotel Malaya Sdn Bhd
(Franklin Goonting) [2008] 3 ILR 521

Notice of termination - Two warning letters issued to claimant - First warning letter subsequently revised and second warning letter revoked - Effect of - Company failing to comply with disciplinary procedures as per Company Employee Handbook - Whether it had been a fundamental breach which had gone to the root of the employment contract - Conduct of company - Whether the company had intended to be bound by the employment contract - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967 ss. 20(3) & 30(5)
Lam Sok Mui v. Bokia (M) Sdn Bhd
(Jalaldin Hussain) [2008] 3 ILR 629

Performance - Claimant’s appraisal done without discussion - Way in which it had been done - Whether it had been fair - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Sim Kok Seng v. Tritex Containers Sdn Bhd
(Siti Saleha Abu Bakar) [2008] 3 ILR 508

Performance - Unsatisfactory performance - Whether company had succeeded in proving - Whether company’s actions had been reasonable - Whether proven - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
The Pan Pacific Resort Pangkor v. Raja Letchmi G Sundra Rajoo
(Choong Siew Khim) [2008] 3 ILR 477

Probationer - Claimant confirmed - After appraisal claimant put on probation again - Effect of - Whether company’s actions had been a ground to claim constructive dismissal - Effect of - Whether the appraisals had been done fairly - Whether mala fides - 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)
Sim Kok Seng v. Tritex Containers Sdn Bhd
(Siti Saleha Abu Bakar) [2008] 3 ILR 508

Victimization - Whether the claimant had been blamed for everything that had gone wrong - Attitude and behaviour of the General Manager towards the claimant - Whether it had been reasonable - Whether there had been a collective duty and responsibility on all the managers of the hotel for its smooth operations - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
The Pan Pacific Resort Pangkor v. Raja Letchmi G Sundra Rajoo
(Choong Siew Khim) [2008] 3 ILR 477

Findings - Whether it had to follow a formal trial in a court of law - Claimant given opportunity to cross-examine the witnesses - Claimant failing to avail himself of this opportunity - Effect of - Whether the DI findings had been valid - Industrial Relations Act 1967
Prasad Dass KN Devadas v. Yeo Hiap Seng (Malaysia) Berhad
(Fredrick Indran XA Nicholas) [2008] 3 ILR 538

Procedural impropriety - 1st claimant taken by surprise at inquiry - 1st claimant not in a position to defend herself - Whether it had been in breach of the rules of natural justice and the principles of fairness - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Rachel Mathews & Anor v. Basf (Malaysia) Sdn Bhd
(Rajendran Nayagam) [2008] 3 ILR 709

Procedural impropriety - Constitution of the inquiry panel - Accuser the head of the inquiry - Effect of - Whether the inquiry had been a genuine exercise - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Rachel Mathews & Anor v. Basf (Malaysia) Sdn Bhd
(Rajendran Nayagam) [2008] 3 ILR 709

Procedural impropriety - Notes of the DI - Inconsistencies between type written notes adduced for trial and the handwritten notes of the inquiry - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Norzahizan Ismail v. Utusan Melayu (Malaysia) Bhd
(Mohd Amin Firdaus Abdullah) [2008] 3 ILR 557

Procedural impropriety - Whether the panel had been bias - Whether the principles of natural justice had been violated - Whether respondent company had succeeded in establishing 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)
Norzahizan Ismail v. Utusan Melayu (Malaysia) Bhd
(Mohd Amin Firdaus Abdullah) [2008] 3 ILR 557

Witness - Conflicting evidence between claimant and respondent - Whose evidence more believable - Conduct of respondent witnesses - Effect of - Whether alleged misconduct had taken place - Whether proven by respondent - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
David Loong Kok Wai v. Hotel Malaya Sdn Bhd
(Franklin Goonting) [2008] 3 ILR 521

Jurisdiction - Whether court had jurisdiction to hear the matter - Whether court could interpret articles in collective agreement where application by union had been filed pursuant to s. 56 of the Industrial Relations Act - Effect of - Correct way of applying for interpretation of articles - Industrial Relations Act 1967, ss. 33, 56 & 56(2A) & Industrial Relations (Amendment) Act 2007, s. 35
National Union Of Hotel, Bar & Restaurant Workers, Peninsular Malaysia v. Komtar Hotel Sdn Bhd Trading As Traders Hotel Penang By Shangri-La
(Susila Sithamparam) [2008] 3 ILR 503

Procedure - Parties - Joinder - Application for joinder made at non-compliance stage - Whether allowed - When the situation for joinder had arisen - Viability of company during the course of the hearing - Company now wound-up - Whether the claimant had needed to get leave of the winding-up court before proceeding - Whether joinder necessary to make adjudication enforceable and effective - Industrial Relations Act 1967, s. 29(a), 56 & Companies Act 1965, s. 226(3)
Quek Suan Tsun v. Tuanku Jaafar Golf & Country Resort
(Siti Saleha Abu Bakar) [2008] 3 ILR 585

Procedure - Parties - Joinder - Nexus - Company and proposed joined company sharing same directors and shareholders - Timing of the incorporation of proposed joined company - Effect of - Legal representation - Failure by company to be legally represented or to attend court despite being served repeated times - Whether relevant - Disinterest shown by company - Effect of - Whether both limbs of the test had been satisfied - Whether joinder necessary to make adjudication enforceable and effective - Industrial Relations Act 1967, s. 29(a)
Yan Sin Khoon v. Achievers Management Sdn Bhd
(Amelia Tee Hong Geok Abdullah) [2008] 3 ILR 699

Procedure - Parties - Joinder - Nexus - Whether existed - Company dormant - Company’s employees transferred to proposed joined company - Effect of - Whether the company alone represented the claimant’s employer - Effect of - Whether both limbs of the test had been satisfied - Whether joinder necessary to make adjudication enforceable and effective - Industrial Relations Act 1967, s. 29(a)
Yan Sin Khoon v. Achievers Management Sdn Bhd
(Amelia Tee Hong Geok Abdullah) [2008] 3 ILR 699

Procedure - Parties - Joinder - Whether directors could be joined as parties to the proceedings - Effect of - Whether joinder necessary to make adjudication enforceable and effective - Industrial Relations Act 1967, s. 29(a)
Quek Suan Tsun v. Tuanku Jaafar Golf & Country Resort
(Siti Saleha Abu Bakar) [2008] 3 ILR 585

Remedies - Backwages - Whether claimant’s conduct had contributed to the decision to dismiss her - Claimant’s performance - Effect of - What sort of deduction would be reasonable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
The Pan Pacific Resort Pangkor v. Raja Letchmi G Sundra Rajoo
(Choong Siew Khim) [2008] 3 ILR 477

Remedies - Punishment - Unsatisfactory performance - Claimant’s increments frozen as a result of - Whether claimant’s dismissal two months later had constituted double jeopardy - Whether dismissal had been too harsh under the circumstances - Claimants service history not taken into account by the hotel - Effect of - Whether it should have been taken into account - Whether claimant should have been placed elsewhere as opposed to dismissed - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
The Pan Pacific Resort Pangkor v. Raja Letchmi G Sundra Rajoo
(Choong Siew Khim) [2008] 3 ILR 477

Remedies - Reinstatement - Conduct of the claimant - Whether he had served the best interests of the respondent company - Whether there had been an irretrievable breakdown of relationship between the parties - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
David Loong Kok Wai v. Hotel Malaya Sdn Bhd
(Franklin Goonting) [2008] 3 ILR 521

Award - Backwages awarded "less statutory deductions if any" - Whether backwages attracted EPF contributions to be made by the company/respondent - Definition of wages - Exemptions to wages that would not attract EPF payments - Whether backwages awarded by industrial court came under the exemption list - Effect of - Industrial Relations Act 1967 ss. 20 & 30(5), 33(1) & Employees Provident Fund Act 1991 ss. 2, 16A(1)
Chan Siew Wah v. Natseven TV Sdn Bhd
(Umi Kalthum Abdul Majid) [2008] 3 ILR 546

Punishment - Whether dismissal had been too harsh under the circumstances - First indiscretion of the claimant - Effect of - Factors to consider - Ground for coming up with the punishment of dismissal lacking - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Prasad Dass KN Devadas v. Yeo Hiap Seng (Malaysia) Berhad
(Fredrick Indran XA Nicholas) [2008] 3 ILR 538

Collective Agreement - Interpretation of article on service charge - Computation of the ordinary rate of pay (ORP) - How determined - Whether service charge was part of wages - Definition of wages - Collective Agreement silent on the same - Reasons for the same - Whether acceptable - Whether a mutual understanding had existed between the parties on the non-inclusion of service charge in the requisite calculation of ORP - No evidentiary documents adduced on the same by the hotel - Effect of - Whether proven by the hotel - Union not raising objection to calculation of ORP prior to this in previous collective agreements - Whether unions conduct had been relevant - Effect of - Intention of the parties - Industrial Relations Act 1967, ss. 26(2), 30(4), Employees’ Provident Fund (Amendment) Act 1986, (A642), Employees’ Provident Fund Act 1951 & Employment Act 1955, s. 2
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar & Restoran, Semenanjung Malaysia v. Hotel Equatorial (M) Sdn Bhd
(Amelia Tee Hong Geok Abdullah) [2008] 3 ILR 590

Collective Agreement - Interpretation of article on service charge - Whether service charge was part of wages - Service charge for overtime pay and pay on rest days and public holidays - Whether payment should come from service charge pool of the hotel - How determined - Industrial Relations Act 1967, ss. 26(2), 30(4), 30(5) & 33(1)
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar & Restoran, Semenanjung Malaysia v. Hotel Equatorial (M) Sdn Bhd
(Amelia Tee Hong Geok Abdullah) [2008] 3 ILR 590

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