ILR Bulletin, Issue 2008, Vol 12
December 2008

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INDUSTRIAL LAW REPORTS ISSUE 12 of 2008

AWARDS REPORTED

SUBJECT INDEX

Exercise of judicial functions - Dismissal of police inspector - Power of court to interfere with punishment by disciplinary authority - Failure to provide plaintiff with the right to be heard - Whether an appropriate case for court to intervene and exercise its discretionary power - Wednesbury principle - Whether there were extraneous circumstances warranting intervention of court
Arbain Basri v. Ketua Polis Negara & Anor
(Syed Ahmad Helmy J) [2008] 4 ILR 473

Exercise of administrative powers - Judicial review - Leave to apply for judicial review - Whether applicant allowed to seek for reliefs sought - Rules of the High Court 1980, O. 53 r. 2(2)
Titular Roman Catholic Archbishop Of Kuala Lumpur v. Menteri Keselamatan Dalam Negeri & Anor
(Lau Bee Lan J) [2008] 4 ILR 513

Public servants - Dismissal of police inspector - Right to be heard - Failure of permitting plaintiff to address matters raised in confidential report that was considered in arriving at decision of dismissal - Whether a blatant breach of the rules of natural justice - Whether a breach of fundamental right - Whether contravened art. 135(2) of the Federal Constitution - Public Officers (Conduct and Discipline) Regulations 1993, reg. 28(4)
Arbain Basri v. Ketua Polis Negara & Anor
(Syed Ahmad Helmy J) [2008] 4 ILR 473

Rights and liabilities of public servants - Dismissal of police inspector - Allegation of misconduct - Whether plaintiff exposed to ‘double jeopardy’ or being punished twice for same charges - Federal Constitution, art. 5(1)
Arbain Basri v. Ketua Polis Negara & Anor
(Syed Ahmad Helmy J) [2008] 4 ILR 473

Rights and liabilities of public servants - Dismissal of public inspector - Rules of natural justice - Establishing an investigative committee - Necessity of - Public Officers (Conduct and Discipline) Regulations 1993, reg. 28(4) - Failure to establish - Whether an infringement of procedural fairness
Arbain Basri v. Ketua Polis Negara & Anor
(Syed Ahmad Helmy J) [2008] 4 ILR 473

Constructive dismissal - Benefits - Claimant losing out with transfer - Whether the transfer had constituted a demotion to the claimant - Whether it had been fair - Intention of the company - Effect of - Whether claimant had been driven out of his employment - Whether fundamental breach of terms of employment - Whether justified the claimant walking out of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Goh Kah Chuan v. The Store Corporation Bhd
(Mary Shakila Azariah) [2008] 4 ILR 527

Constructive dismissal - Benefits - Claimant not getting increments and bonuses - Whether a term of his employment contract - Whether had been at the discretion of the company - Evidence adduced by the claimant - Whether proven by the claimant - Effect of - Whether there had been a fundamental breach of terms of employment by company - Whether any evidence of bias or mala fide on the part of the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Joseph De Cruz v. Tay & Partners
(Jalaldin Hussain) [2008] 4 ILR 630

Constructive dismissal - Benefits - Company offering claimant his job back - Claimant declining - Effect of - Whether claimant had breached a fundamental term of the contract of employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Joseph De Cruz v. Tay & Partners
(Jalaldin Hussain) [2008] 4 ILR 630

Constructive dismissal - Change in job functions - Whether claimant had been forced to sign Duty Statement - Whether claimant had been consulted on it - Whether proven by claimant - Whether Duty Statement had contained anything more than the claimant’s job functions - Effect of - 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)
Joseph De Cruz v. Tay & Partners
(Jalaldin Hussain) [2008] 4 ILR 630

Constructive dismissal - Change in job functions - Whether the claimant had been humiliated and harassed - Evidence adduced by the claimant - Whether proven by the claimant - Whether the claimant had informed the company - Time period taken by the claimant to inform the company - Whether he had elected to affirm the contract by his delay in informing the company - Reasons for the delay - What would be a reasonable time to inform the company - Company not taking any action - Whether company’s actions had been reasonable - Conduct of claimant - Whether reasonable - Effect of - Conduct of company - Whether there had been a fundamental breach of terms of employment by company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Joseph De Cruz v. Tay & Partners
(Jalaldin Hussain) [2008] 4 ILR 630

Constructive dismissal - Change in job functions - Whether the claimant had been demoted - Evidence adduced by the claimant - Whether proven by the claimant - Effect of - Whether there had been a fundamental breach of terms of employment by company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Joseph De Cruz v. Tay & Partners
(Jalaldin Hussain) [2008] 4 ILR 630

Constructive dismissal - Transfer - Claimant requesting transfer - Company rejecting - Whether reasonable - Whether court should interfere with company prerogative - Effect of - Whether there had been a fundamental breach of terms of employment by company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Joseph De Cruz v. Tay & Partners
(Jalaldin Hussain) [2008] 4 ILR 630

Constructive dismissal - Transfer - Claimant’s scope of duties being reduced and allowances taken away - Whether the transfer had constituted a demotion - Effect of - Conduct of company - Transfer clause in claimant’s contract of employment - Whether that meant the claimant could not query his transfer orders - Transfer not affecting terms and conditions of claimant’s service with the company - 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)
Goh Kah Chuan v. The Store Corporation Bhd
(Mary Shakila Azariah) [2008] 4 ILR 527

Constructive dismissal - Transfer - Whether claimant had delayed in walking out of his employment - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Goh Kah Chuan v. The Store Corporation Bhd
(Mary Shakila Azariah) [2008] 4 ILR 527

Misconduct - Claimant being asked to answer questionnaire - Claimant complying - Company alleging he answered wrongly - Company failing to specify how he had answered wrongly - Effect of - Whether the company had established the misconduct against the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Woon Wee Meng v. Assa Abloy Malaysia Sdn Bhd
(Siti Saleha Abu Bakar) [2008] 4 ILR 616

Misconduct - Evidence adduced by claimant - Whether sufficient on a balance of probabilities to prove the misconduct against the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Radhakrishnan Rengasamy v. YTL Land Sdn Bhd
(Fredrick Indran XA Nicholas) [2008] 4 ILR 701

Misconduct - Whether claimants had conducted an illegal strike - Whether they had ceased and/or refused to work - Whether claimants had been chased out of the premises - Whether company had managed to establish the misconduct against the claimants - Whether company witnesses had discharged the company’s burden of proof and proven the charge - Huge gaps in company’s evidence - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 2 & 20(3)
Rodziyah Abdullah & Ors v. Dai-Ichi Electronics (M) Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2008] 4 ILR 544

Misconduct - Whether claimants had failed to comply with orders to resume work - Effect of - Whether witnesses for the company had managed to establish this - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Rodziyah Abdullah & Ors v. Dai-Ichi Electronics (M) Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2008] 4 ILR 544

Misconduct - Whether the company had conducted a thorough investigation before charging the claimant - Effect of - Company solely relying on the affixing of claimant’s initials on documents - No evidence to show that claimant had consented to the affixing of his initials on the documents - 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)
Woon Wee Meng v. Assa Abloy Malaysia Sdn Bhd
(Siti Saleha Abu Bakar) [2008] 4 ILR 616

Notice of termination - Claimant resigning - Whether forced resignation - Whether proven by the claimant - No reasons adduced in resignation letter of alleged breaches by the company - Whether claimant bound by reasons as stated in his resignation letter - Effect of - Way in which resignation letter worded - Whether it had been executed voluntarily - Whether the claimant had resigned voluntarily or been forced to resign - Claimant exercising option to resign in his contract of employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Joseph De Cruz v. Tay & Partners
(Jalaldin Hussain) [2008] 4 ILR 630

Performance - Unsatisfactory performance - Claimant being given previous warnings to improve - Claimant failing to improve - Company still employing the claimant - Effect of - Whether the company had managed to establish the claimant’s non performance - Explanations rendered by the claimant - Whether the company had taken his explanations into consideration - Whether all relevant factors had been considered by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Eric Ho Shing Chiang v. UMW Toyota Motor Sdn Bhd
(Muniandy Kannyappan) [2008] 4 ILR 586

Performance - Unsatisfactory performance - Claimant unable to meet sales performance target set by company - Reasons why - Whether company partly to blame for claimant’s failure - Evidence adduced by the company - Whether sufficient to prove poor performance on the part of the claimant - Whether the company should have considered other forms of disciplinary action - Claimant about to retire - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Eric Ho Shing Chiang v. UMW Toyota Motor Sdn Bhd
(Muniandy Kannyappan) [2008] 4 ILR 586

Charges - Whether the charges brought against the claimant had lacked material particulars - Charges against the claimant in the suspension letter, show cause letter and the termination letter differed - Effect of - Whether the claimant had been deprived of the opportunity to adequately defend himself - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Woon Wee Meng v. Assa Abloy Malaysia Sdn Bhd
(Siti Saleha Abu Bakar) [2008] 4 ILR 616

Procedural impropriety - Claimant given show cause letter - Whether she had known what the charges were and understood them - Acknowledgement receipt of show cause notice not signed by the claimant - Effect of - Whether there had been flagrant breaches of natural justice - Industrial Relations Act 1967
Rodziyah Abdullah & Ors v. Dai-Ichi Electronics (M) Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2008] 4 ILR 544

Adverse inference - Non-production of material witnesses - Company failing to call - Company failing to show attempts to procure attendance of material witnesses - Effect of - Whether an adverse inference could be drawn against the company - Evidence Act 1950, s. 114(g)
Rodziyah Abdullah & Ors v. Dai-Ichi Electronics (M) Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2008] 4 ILR 544

Documentary evidence - Admissibility of - Maker of the document not called - Whether all reasonable steps had been taken to secure the attendance of the maker at the trial - Company failing - Effect of - Whether the documents came within the exception to the hearsay rule - Whose duty to prove - Whether the document had formed part of the record of proceedings - Effect of - Evidence Act 1950, s. 73A(1) & 73A(2)
Radhakrishnan Rengasamy v. YTL Land Sdn Bhd
(Fredrick Indran XA Nicholas) [2008] 4 ILR 701

Documentary evidence - Claimant’s testimony - Material contradictions - Effect of - Whether could be ignored - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Joseph De Cruz v. Tay & Partners
(Jalaldin Hussain) [2008] 4 ILR 630

Documentary evidence - Notes of the Domestic Inquiry - Notes appearing to be irregular - No evidence on the veracity of the notes - Effect of - Whether reliance on the notes would have been prejudicial to the claimant - Whether the claimant had been denied natural justice - Industrial Relations Act 1967
Rodziyah Abdullah & Ors v. Dai-Ichi Electronics (M) Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2008] 4 ILR 544

Documentary evidence - Notes of the Domestic Inquiry - Reference made to it in the course of proceedings - Failure to formally mark the notes as an exhibit - Effect of - Whether it had been necessary for the court to evaluate on validity and propriety of DI - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Radhakrishnan Rengasamy v. YTL Land Sdn Bhd
(Fredrick Indran XA Nicholas) [2008] 4 ILR 701

Documentary evidence - Statutory declaration relied on by the company - Whether signatory to the declaration should have been called - Company failing to call - Witness signing the declaration in return for an indemnity from the company - Whether that diminished the value of the contents of the declaration - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Woon Wee Meng v. Assa Abloy Malaysia Sdn Bhd
(Siti Saleha Abu Bakar) [2008] 4 ILR 616

Jurisdiction - Claimant not seeking reinstatement - Whether the court had jurisdiction to hear the matter - Reasons advanced by the claimant for not seeking reinstatement - Whether acceptable - Whether court automatically had to adjudicate the reference once dispute referred by the Minister - Circumstances under which court would not be able to adjudicate the reference - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Eric Ho Shing Chiang v. UMW Toyota Motor Sdn Bhd
(Muniandy Kannyappan) [2008] 4 ILR 586

Jurisdiction - Company alleging it is not the claimant’s employer - Only brought up in Amended Statement of Reply - Whether it had been an afterthought - What should have been done by the company - Company’s documents all point to the company being the claimant’s employer - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Woon Wee Meng v. Assa Abloy Malaysia Sdn Bhd
(Siti Saleha Abu Bakar) [2008] 4 ILR 616

Procedure - Locus standi - Union inviting another company not a party to the original collective agreement to commence collective bargaining - Whether the union had been accorded recognition by that company - Statutory provisions not followed - Effect of - Whether the Industrial Court had been the proper forum to pursue the matter - Powers of the Minister - What had been the proper forum - Industrial Relations Act 1967, ss. 9(5), 9(6), 13 & Part III
Kesatuan Kebangsaan Pekerja-pekerja Perdagangan v. Bumiputra-Commerce Factorlease Berhad
(Franklin Goonting) [2008] 4 ILR 601

Procedure - Locus standi - Whether union could represent employees - Preliminary objection raised by company - Unfair dismissal case on employee/union member pending in a different division of the Industrial Court - Effect of - Whether the court had to wait for the disposal of that case before proceeding to hear the preliminary objection - Effect of - Industrial Relations Act 1967, ss. 26(1) & 26(2)
Guocera Tile Industries (Kapar) Sdn Bhd v. Kesatuan Sekerja Pembuatan Barangan Galian Bukan Logam
(Syed Ahmad Radzi Syed Omar) [2008] 4 ILR 581

Procedure - Locus standi - Whether union could represent workmen - Union not having any beneficiaries - Effect of - Company to the collective agreement now dormant - Effect of - Existing union seeking to join another union to represent interests of workmen - In what circumstances could that be allowed - Whether it should be allowed in this case - Effect of - Scope of representation of union sought to be joined - Industrial Relations Act 1967
Kesatuan Kebangsaan Pekerja-pekerja Perdagangan v. Bumiputra-Commerce Factorlease Berhad
(Franklin Goonting) [2008] 4 ILR 601

Procedure - Parties - Joinder - Whether an employee in a related or similar industry could be a member of a particular union - Factors to consider - Matter for the decision of the Registrar of Trade Unions - Effect of - Whether the joinder would have effectively usurped the function of the Registrar of Trade Unions - Whether joinder necessary to make adjudication enforceable and effective - Industrial Relations Act 1967, s. 29(a) & Trade Union Act 1959, s. 12(2)
Kesatuan Kebangsaan Pekerja-pekerja Perdagangan v. Bumiputra-Commerce Factorlease Berhad
(Franklin Goonting) [2008] 4 ILR 601

Remedies - Backwages - How multiplicand arrived at - Factors to consider - Whether dismissal had been with just cause and excuse - Industrial Relations Act 1967
Eric Ho Shing Chiang v. UMW Toyota Motor Sdn Bhd
(Muniandy Kannyappan) [2008] 4 ILR 586

Remedies - Claim for loss of earnings - Claimant gainfully employed elsewhere after dismissal - Whether equitable - Claimant would have retired in 9 months had he been with the company - Effect of - Whether the claimant had suffered pecuniary losses - Effect of - Industrial Relations Act 1967
Eric Ho Shing Chiang v. UMW Toyota Motor Sdn Bhd
(Muniandy Kannyappan) [2008] 4 ILR 586

Remedies - Compensation in lieu of reinstatement - Whether should be awarded - Claimant suffering mental anguish - Claimant main contributor to family income - Effect of - How multiplicand arrived at - Industrial Relations Act 1967
Eric Ho Shing Chiang v. UMW Toyota Motor Sdn Bhd
(Muniandy Kannyappan) [2008] 4 ILR 586

Remedies - Punishment - Whether dismissal had been too harsh and absurd under the circumstances - Whether the company had taken all relevant matters into consideration before dismissing the claimant - Whether dismissal had been with just cause and excuse - Industrial Relations Act 1967, s. 30(5)
Eric Ho Shing Chiang v. UMW Toyota Motor Sdn Bhd
(Muniandy Kannyappan) [2008] 4 ILR 586

Remedies - Reinstatement - Claimant refusing remedy of reinstatement - Claimant retiring from company in 9 months - Whether acceptable - Options available to the claimant - Whether dismissal had been with just cause and excuse - Industrial Relations Act 1967
Eric Ho Shing Chiang v. UMW Toyota Motor Sdn Bhd
(Muniandy Kannyappan) [2008] 4 ILR 586

Remedies - Compensation - Scaling down - No post dismissal earnings - Percentage to be applied - Effect of - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Lau Chew Peng v. Iomega (M) Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2008] 4 ILR 522

Remedies - Compensation - Scaling down - Whether claimant’s contributory conduct should be taken into account - Whether gainful employment and contributory conduct were two separate factors - Factors to consider when scaling down compensation - Effect of - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Lau Chew Peng v. Iomega (M) Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2008] 4 ILR 522

Remedies - Compensation - Scaling down - Whether claimant’s post dismissal earnings should be taken into account - To what extent - Effect of - What was a fair, reasonable and equitable amount to apply - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Lau Chew Peng v. Iomega (M) Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2008] 4 ILR 522

Social security - Accidents while travelling - Whether arose out of and in the course of employment - Whether there was deviation during employee’s journey - Whether a liberal interpretation to s. 24 of Employees Social Security 1969 should be applied
Ketua Pengarah Pertubuhan Keselamatan Sosial v. Vadivelan Sandara Saigara
(VT Singham J) [2008] 4 ILR 485

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