ILR Bulletin, Issue 2008, Vol 10
October 2008

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INDUSTRIAL LAW REPORTS ISSUE 10 of 2008

AWARDS REPORTED

SUBJECT INDEX

No contract of employment between the claimant and the company - Whether the terms bound the company - Effect of - Both parties relying on contract of employment signed by claimant with E-Global - Company and E-Global separate legal entities - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Goh King Say v. Secure - IP Sdn Bhd
(Susila Sithamparam) [2008] 4 ILR 59

Misconduct - Claimant circulating his appointment letter marked "private and confidential" - Whether his actions had been reasonable - Position held by the claimant - What should have been done by him under such circumstances - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mohd Zaihan Mohd Zain v. Island & Peninsular Berhad
(Mary Shakila Azariah) [2008] 4 ILR 155

Misconduct - Claimant in employment elsewhere whilst working for the respondent - Claimant not concealing the fact of other employment - Claimant working at respondent’s place on request of superior - Superior failing to inform the respondent of claimant’s other job - Whether it constituted gross misconduct - Evidence adduced by the respondent - Whether had been sufficient to prove gross misconduct - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Mohd Baki Saarani v. Full Force Security Services Sdn Bhd
(Chew Soo Ho) [2008] 4 ILR 199

Misconduct - Company failing to produce supporting documents or evidence - Whether misconduct proven by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Yap Swee Chiang v. Sistem Penerbangan Malaysia
(Siti Saleha Abu Bakar) [2008] 4 ILR 1

Misconduct - No warning letters issued to claimant for the same - Whether the company had proven the misconduct - Position held by the claimant in the company - Whether the claimant ought to have known he was not performing up to expectation - Evidence adduced by the company - Whether sufficient - Effect of - Whether proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Goh King Say v. Secure - IP Sdn Bhd
(Susila Sithamparam) [2008] 4 ILR 59

Misconduct - Sexual harassment by claimant on colleague - Whether proven by the company - Position held by claimant - Claimant’s years of service in the company - Effect of - Whether complainant had an axe to grind with the claimant - Whether proven by the claimant - Whether a prima facie case had been made out against the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3), 30(5) and Evidence Act 1950, s. 134
Malaysia Airline System Berhad v. Wan Sa’adi Wan Mustafa
(Mohd Amin Firdaus Abdullah) [2008] 4 ILR 72

Misconduct - Sexual harassment by claimant on colleague - Whether there had been a delay on the complainants part in lodging the complaint - Delay of 8 days - Reasons for the delay - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3), 30(5) and Evidence Act 1950, s. 134
Malaysia Airline System Berhad v. Wan Sa’adi Wan Mustafa
(Mohd Amin Firdaus Abdullah) [2008] 4 ILR 72

Misconduct - Claimant transferred to subsidiary of company - Whether claimants allegations against management of the company had been disrespectful - Whether the claimant had been provoked - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mohd Zaihan Mohd Zain v. Island & Peninsular Berhad
(Mary Shakila Azariah) [2008] 4 ILR 155

Misconduct - Whether the claimant had instigated the senior managers of the company to put in transfer orders - Whether the claimant had exerted pressure on them - 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)
Mohd Zaihan Mohd Zain v. Island & Peninsular Berhad
(Mary Shakila Azariah) [2008] 4 ILR 155

Misconduct - Whether the company had established the misconducts against the claimant - Whether the misconducts had been serious enough to justify the claimant’s dismissal - Tenure of service of the claimant - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mohd Zaihan Mohd Zain v. Island & Peninsular Berhad
(Mary Shakila Azariah) [2008] 4 ILR 155

Misconduct - Whether proven by the company - Scope of the claimant’s duties - Whether claimant could be singled out for company’s failure to have sufficient business for the year - How the company had secured contracts - Effect of - Whether company’s actions mala fides - Whether proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Goh King Say v. Secure - IP Sdn Bhd
(Susila Sithamparam) [2008] 4 ILR 59

Notice of termination - Grounds relied on by respondent to dismiss the claimant - Respondent only coming to know of claimant’s employment elsewhere after a lapse of 1 year 7 months - Effect of - Whether the respondent could rely on that ground to dismiss the claimant - Whether the respondent could be permitted to depend on events after the claimant’s dismissal to justify the dismissal - Whether equitable - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Mohd Baki Saarani v. Full Force Security Services Sdn Bhd
(Chew Soo Ho) [2008] 4 ILR 199

Performance - Unsatisfactory performance - Firm clearing out claimant’s room - Whether that had been acceptable - Effect of -Whether it had amounted to the claimant’s dismissal - Whether firm’s actions mala fides - Whether proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Tetuan Wee Choo Keong & Faaiz v. Charles Hector Fernandez
(Yeoh Wee Siam) [2008] 4 ILR 127

Performance - Unsatisfactory performance - No appraisals done on claimant’s work - No show cause letters or warnings issued to claimant - Effect of - Whether company’s actions mala fides - Whether proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mohd Baki Saarani v. Full Force Security Services Sdn Bhd
(Chew Soo Ho) [2008] 4 ILR 199

Performance - Unsatisfactory performance - Whether proven by the firm - Claimant only given oral warnings - Whether sufficient - Whether written warnings had been necessary - Position held by claimant - Claimant failing to improve - Effect of - Whether claimant had discharged his duties professionally - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Tetuan Wee Choo Keong & Faaiz v. Charles Hector Fernandez
(Yeoh Wee Siam) [2008] 4 ILR 127

Probationer - Rights enjoyed by a probationer - Whether the protection afforded to a permanent employee could be extended to a probationer - Extent of protection accorded by the Industrial Relations Act 1967 - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20
Mohd Baki Saarani v. Full Force Security Services Sdn Bhd
(Chew Soo Ho) [2008] 4 ILR 199

Probationer - Whether the claimant had been a probationer - No written contract of employment - Conduct of the parties - Effect of - Failure by claimant to rebut firm’s case - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Tetuan Wee Choo Keong & Faaiz v. Charles Hector Fernandez
(Yeoh Wee Siam) [2008] 4 ILR 127

Probationer - Whether defects in natural justice could be cured by hearing before the Industrial Court - Whether the case laws extended to situations where no appraisals, warnings and guidance had been conducted and/or given - Evidence adduced by the company - Whether sufficient - Effect of - Whether company’s actions mala fides - Whether proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mohd Baki Saarani v. Full Force Security Services Sdn Bhd
(Chew Soo Ho) [2008] 4 ILR 199

Retrenchment - Redundancy - Code of Conduct for Industrial Harmony not followed - Claimant not warned of impending retrenchment - Whether claimant should have been consulted and warned - Whether Code should have been followed - Effect of - Reasonableness of employers actions - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & Code of Conduct for Industrial Harmony, Articles 20 and 21
Fu Gar Leong (Raymond) v. 3ntity.com Sdn Bhd
(Mary Shakila Azariah) [2008] 4 ILR 219

Retrenchment - Redundancy - LIFO principles not followed - Whether applicable - Claimant’s service record not taken into account - Effect of - Whether the claimant’s retrenchment had been done bona fide - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Fu Gar Leong (Raymond) v. 3ntity.com Sdn Bhd
(Mary Shakila Azariah) [2008] 4 ILR 219

Retrenchment - Redundancy - Whether claimant’s job functions had been reduced - Whether proven by the company - Effect of - Whether the services or the position of the employee had to be redundant - Whether the company’s actions were bona fide - Whether a redundancy situation had existed - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Fu Gar Leong (Raymond) v. 3ntity.com Sdn Bhd
(Mary Shakila Azariah) [2008] 4 ILR 219

Retrenchment - Redundancy - Whether company had faced a slowdown - Accounts submitted by company misleading - Effect of - Whether there was any mala fide intention on the part of the company - Whether a redundancy situation had existed - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Fu Gar Leong (Raymond) v. 3ntity.com Sdn Bhd
(Mary Shakila Azariah) [2008] 4 ILR 219

Procedural impropriety - Charge against claimant amended by company - Claimant not given notice of amendment - Whether the claimant had been in a position to defend himself properly - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Yap Swee Chiang v. Sistem Penerbangan Malaysia
(Siti Saleha Abu Bakar) [2008] 4 ILR 1

Procedural impropriety - Claimant asking for a postponement of the same to prepare his defence - Company denying his request - Domestic Inquiry proceeding ex parte the claimant - Claimant found guilty of charges - Whether company’s actions had been reasonable - Whether prejudice would have been suffered by company in granting the postponement - Effect of - Whether company had put its interests before interests of the claimant - Whether rules of natural justice had been adhered to - Industrial Relations Act 1967
Mohd Zaihan Mohd Zain v. Island & Peninsular Berhad
(Mary Shakila Azariah) [2008] 4 ILR 155

Procedural impropriety - Request by claimant that DI be postponed - Company failing to inform claimant that DI would proceed ex parte in his absence - Effect of - Whether the inquiry had been proper - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Yap Swee Chiang v. Sistem Penerbangan Malaysia
(Siti Saleha Abu Bakar) [2008] 4 ILR 1

Adverse inference - Non-production of material witnesses - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Yap Swee Chiang v. Sistem Penerbangan Malaysia
(Siti Saleha Abu Bakar) [2008] 4 ILR 1

Adverse inference - Non-production of witnesses - Failure to call - Effect of - Evidence adduced - Inference to be drawn therefrom - Evidence Act 1950, s. 114(g)
Mohd Baki Saarani v. Full Force Security Services Sdn Bhd
(Chew Soo Ho) [2008] 4 ILR 199

Witnesses - Company failing to call - Whether misconduct proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Yap Swee Chiang v. Sistem Penerbangan Malaysia
(Siti Saleha Abu Bakar) [2008] 4 ILR 1

Witness - Credibility of complainant - Complainant failing to remember exact words that had been uttered by the claimant - Effect of - State of mind of the complainant as a victim - Whether that had been reasonable - Whether the misconduct had been proven - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Malaysia Airline System Berhad v. Wan Sa’adi Wan Mustafa
(Mohd Amin Firdaus Abdullah) [2008] 4 ILR 72

Witness - Testimony - Whether there had been a suppression of witness testimony - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3), 30(5) and Evidence Act 1950, s. 134
Malaysia Airline System Berhad v. Wan Sa’adi Wan Mustafa
(Mohd Amin Firdaus Abdullah) [2008] 4 ILR 72

Jurisdiction - Whether court had jurisdiction to hear the matter - Whether the respondent organization had been protected by immunity - Whether Federal Constitution took precedence over the agreement with ICLARM - Effect of - Responsibilities of Malaysia as a member of the international community - Industrial Relations Act 1967, ss. 20(3), 29(g) & International Organizations (Privileges and Immunities) Act 1992, s. 4(1)(a)(ii)
Anthony Voon Fook Nyen v. Worldfish Center
(Mohd Amin Firdaus Abdullah) [2008] 4 ILR 99

Jurisdiction - Whether court had jurisdiction to hear the matter - Claimant not aware of immunity conferred on respondent company - Whether claimant ought to have known - Position held by claimant - Effect of - Industrial Relations Act 1967, ss. 20(3), 29(g) & International Organizations (Privileges and Immunities) Act 1992, s. 4(1)(a)(ii)
Anthony Voon Fook Nyen v. Worldfish Center
(Mohd Amin Firdaus Abdullah) [2008] 4 ILR 99

Procedure - Action - Stay application - Company wound-up and provisional liquidators appointed - Whether the claimant needed to get the leave of the winding-up court before proceeding with the matter in this court - Factors to consider - Effect of - Industrial Relations Act 1967, s. 20(3) & Companies Act 1965, s. 226(3)
Koh Guan Swee v. Metroplex Bhd
(Mariah Ahmad) [2008] 4 ILR 151

Procedure - Action - Transfer - New evidence adduced by respondent - Improved financial status of claimant - Effect of - Respondent company government funded - Cost cutting measures undertaken by government - Factors to consider - Whether the application had been made timely - Effect of - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Abdul Azid Desa v. Malaysia Travel Business Sdn Bhd
(Mohd Amin Firdaus Abdullah) [2008] 4 ILR 108

Procedure - Amendment of Statement of Case - Matter went for mediation - Mediation unsuccessful - Facts disclosed during the mediation process the basis for the claimant’s amendment application - Effect of - Intention of the mediation process - Whether it had been equitable to allow the amendments - Whether bona fide application - Whether allowing the amendments would have caused an injustice to the respondent - Whether prejudice would have been caused - Effect of - Exercise of discretion - Industrial Relations Act 1967, ss. 20(2), 20(3), 30(5) & 54(2)
Chong Geok Cheng v. Cargill Feed Sdn Bhd
(Susila Sithamparam) [2008] 4 ILR 189

Procedure - Amendment to Statement of Case - Principles to take into consideration - Industrial Court not bound by technicalities and legal form - Whether allowing the proposed amendments would have been equitable - Industrial Relations Act 1967, ss. 29(g) & 30(5)
Chong Geok Cheng v. Cargill Feed Sdn Bhd
(Susila Sithamparam) [2008] 4 ILR 189

Procedure - Parties - Joinder - Company entering into a scheme of arrangement under s. 176 of the Company’s Act 1965 - Proposed joined company incorporated to facilitate the implementation of the proposed restructuring scheme - Effect of - Whether the proposed joined company had been responsible for the claimant’s case - Whether joinder necessary to make adjudication enforceable and effective - Industrial Relations Act 1967, s. 29(a)
Long Huat Group Berhad v. Yee Siow Chin
(Syed Ahmad Radzi Syed Omar) [2008] 4 ILR 145

Procedure - Parties - Joinder - Company entering into a scheme of arrangement under s. 176 of the Company’s Act 1965 - Separate legal entities - Effect of - Whether the proposed joined company had been responsible for the claimant - 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)
Long Huat Group Berhad v. Yee Siow Chin
(Syed Ahmad Radzi Syed Omar) [2008] 4 ILR 145

Procedure - Parties - Joinder - Nexus - Company entering into a scheme of arrangement under s. 176 of the Company’s Act 1965 - 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)
Long Huat Group Berhad v. Yee Siow Chin
(Syed Ahmad Radzi Syed Omar) [2008] 4 ILR 145

Procedure - Parties - Whether union had locus standi to represent the claimant - Whether the claimant was a member of the union - Whether the claimant could be substituted as a party to the proceedings - In what circumstances could the claimant be substituted - Effect of - Industrial Relations Act 1967 s 29(a)
Kesatuan Kebangsaan Pekerja-pekerja Perdagangan (NUCW) v. Nissho Iwai Corporation And Sojitz Corporation
(Ong Geok Lan) [2008] 4 ILR 112

Procedure - Union representing the claimant - Claimant had retired from company as at the date of the reference to the DG of Industrial Relations - Whether the claimant had been a workman within the definition of the Act - Effect of - Whether the claimant had been a member of the union - Whether a retired employee of the company could be a union member - Effect of - Whether the union had locus standi to represent the claimant - Industrial Relations Act 1967, ss. 2, 26(2) & Trade Unions Act 1959, s. 26(1A)
Kesatuan Kebangsaan Pekerja-pekerja Perdagangan (NUCW) v. Nissho Iwai Corporation And Sojitz Corporation
(Ong Geok Lan) [2008] 4 ILR 112

Procedure - Union representing the claimant - Whether the union had locus standi to represent the claimant - What constituted an industrial dispute - Test to be adopted - Relevant date to be taken into consideration - Effect of - Position held by claimant in the company - Whether he ought to have known of his rights - Effect of - Industrial Relations Act 1967, s. 26(2) & Trade Unions Act 1959, s. 26(1A)
Kesatuan Kebangsaan Pekerja-pekerja Perdagangan (NUCW) v. Nissho Iwai Corporation And Sojitz Corporation
(Ong Geok Lan) [2008] 4 ILR 112

Remedies - Backwages - Claimant gainfully employed elsewhere with better pay - Whether backwages should be awarded - Whether the claimant had suffered pecuniary losses - Effect of - Industrial Relations Act 1967
Mohd Baki Saarani v. Full Force Security Services Sdn Bhd
(Chew Soo Ho) [2008] 4 ILR 199

Remedies - Compensation in lieu of reinstatement - Whether should be awarded - Claimant with respondent for less than a year - Practise Note No 1 of 1987 - Effect of - Whether the claimant should be rewarded for the stigma of being dismissed - Industrial Relations Act 1967
Mohd Baki Saarani v. Full Force Security Services Sdn Bhd
(Chew Soo Ho) [2008] 4 ILR 199

Remedies - Reinstatement - Claimant gainfully employed elsewhere with better pay - Claimant was a probationer with respondent - Whether reinstatement was appropriate - Industrial Relations Act 1967
Mohd Baki Saarani v. Full Force Security Services Sdn Bhd
(Chew Soo Ho) [2008] 4 ILR 199

Collective Agreement - Punishment imposed on claimant not in accordance with the Collective Agreement - Punishment or legality of the deduction of salary and suspension of allowance not taken up by union or claimant immediately - Only taken up 13 years later - Effect of - Whether the claimant had slept on his rights - Court’s functions as a court of equity - Industrial Relations Act 1967, s. 26(2)
Kesatuan Kebangsaan Pekerja-pekerja Perdagangan (NUCW) v. Nissho Iwai Corporation And Sojitz Corporation
(Ong Geok Lan) [2008] 4 ILR 112

Collective Agreement - Terms and Conditions of Service - Articles on shift allowance, special leave, bonus, proposed salary adjustment and salary structure - Matters to be taken into consideration - Whether the principle of approbation and reprobation applied in industrial adjudication - Industrial Relations Act 1967, ss. 26(2) & 30(5)
Paper & Paper Products Manufacturing Employees’ Union v. Muda Paper Mills Sdn Bhd
(Susila Sithamparam) [2008] 4 ILR 17

"Trade dispute" and "party" - Whether the claimant had come within the above definition - Effect of - Industrial Relations Act 1967, ss. 18(1), 18(2) and 20
Kesatuan Kebangsaan Pekerja-pekerja Perdagangan (NUCW) v. Nissho Iwai Corporation And Sojitz Corporation
(Ong Geok Lan) [2008] 4 ILR 112

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