ILR Bulletin, Issue 2009, Vol 02
March 2009

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INDUSTRIAL LAW REPORTS ISSUE 2 of 2009

AWARDS REPORTED

SUBJECT INDEX

Public servants - Dismissal of police officer - Disciplinary offence - Allegation of - Omission of the word ‘wilfully’ in the charge - Whether charge suffered serious and fundamental inadequacy - Whether defective as to render conviction and sentence null and void - Regulations 2, 3(1) and para. 7 Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970 - Federal Constitution, arts. 5(1), 132
Abdullah Borhan v. Ketua Polis Melaka & Anor
(Low Hop Bing J) [2009] 1 ILR 233

Public servants - Dismissal of police officer - Disciplinary offence - Failure to surrender type of firearm revolver to the armoury - Whether requirement to surrender firearm on an off day or off duty day arose - Whether special conditions specified firearm to be surrendered to the armoury when plaintiff/defendant traveled outside his area - Whether plaintiff found to have breached the order - Regulations 2, 3(1) and para. 7 Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970 - Federal Constitution, arts. 5(1), 132
Abdullah Borhan v. Ketua Polis Melaka & Anor
(Low Hop Bing J) [2009] 1 ILR 233

Absenteeism - Claimant’s absence from work without authorisation - Whether proven by the company - Evidence led by company - Quality of evidence - Whether sufficiently corroborated - Whether acceptable - Effect of - Conduct of claimant - Reasons given by claimant - Attitude of claimant - Effect of - Whether taken into consideration by the company - Whether the company’s action in dismissing him had been reasonable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Tang Sung Teck v. Chin Lian Long Motor Vehicle Co Bhd
(Gabriel Gumis) [2009] 1 ILR 383

Absenteeism - Claimant failing to turn up for work without excuse - Claimant’s absence only for 2 days - Whether it had breached the respondent’s disciplinary procedures - Effect of - Whether it had been a serious breach of his contract of employment - Whether respondent had managed to establish the misconduct against the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & Employment Act 1955, ss. 13 and 15
Vignaeswaran Shanmuganathan v. TNB Engineers Sdn Bhd
(Chew Soo Ho) [2009] 1 ILR 406

Attendance - Lateness - Claimant consistently turning up late for work - Reasons given by claimant - Whether claimant had been exempted from such rules - Effect of - Claimant failing to follow superiors orders and clock in before reporting to work - Superior himself subject to same rules and complying - Whether claimant had been aware of superiors instructions - Effect of - Whether claimants actions had constituted a misconduct - Whether it had been a serious breach of his contract of employment - Whether respondent had managed to establish the misconduct against the claimant - Whether there had been a defect in the respondent’s system of recording attendance - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Vignaeswaran Shanmuganathan v. TNB Engineers Sdn Bhd
(Chew Soo Ho) [2009] 1 ILR 406

Attendance - Lateness - Claimant committing same misconduct before - Respondent not taking any action for 4 months - Whether it amounted to condonation on the part of the respondent - What condonation meant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Vignaeswaran Shanmuganathan v. TNB Engineers Sdn Bhd
(Chew Soo Ho) [2009] 1 ILR 406

Breach of company rules & policies - Company’s email policies - Whether claimant had followed company guidelines - Whether claimant had been aware of company guidelines - Effect of - Accessibility of claimant’s email - Computer system of claimant - Whether the company had managed to prove the misconduct against the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Azami Ahmad v. Bluescope Steel (Malaysia) Sdn Bhd
(Susila Sithamparam) [2009] 1 ILR 433

Constructive dismissal - Change in job functions - Claimant asked to do manual work - Claimant suffering bruises - Medical leave given to claimant - Whether claimant had proven that she had been forced to do manual work or that the company had breached a fundamental term - Effect of - Claimant walking out on employment - Claimant waiting 3 weeks before walking out - Effect of - Whether claimant had succeeded in proving constructive dismissal - 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)
Yap Lai Ching v. Cres Wellness Sdn Bhd
(Siti Saleha Abu Bakar) [2009] 1 ILR 336

Constructive dismissal - Salary - Foreigner claimant - Verbal terms and conditions of service - Company holding on to claimant’s passport - Company failing to return passport to claimant despite numerous requests - Claimant arrested by police and detained for failure to produce passport - Claimant eventually seeking release on his own - Company failing to pay claimant’s salary - Effect of - Conduct of the company - Whether constructive dismissal proven - Whether fundamental breach of terms of employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(1) & 20(3)
Muhammad Ishfaq v. Indrasit Holdings Sdn Bhd
(Siti Saleha Abu Bakar) [2009] 1 ILR 330

Constructive dismissal - Salary - Non-payment - Reasons adduced by company for non-payment - Claimant breaching agreement with company - Claimant admitting to breach - Effect of - Claimant walking out on constructive dismissal - Whether company’s actions had been reasonable - 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)
Yap Lai Ching v. Cres Wellness Sdn Bhd
(Siti Saleha Abu Bakar) [2009] 1 ILR 336

Insubordination - Company summoned to appear in criminal proceedings - Claimant instructed to appear in court and represent the company - Whether within claimant’s job scope - Company deciding to plead guilty - Claimant failing to represent company as instructed - Claimant subpoenaed as prosecution witness - Whether a conflict of interest had arisen - Effect of - Where duty of the claimant lay - Whether claimant’s refusal to represent company had been reasonable - Whether the claimant by his refusal had been insubordinate - Whether the company had succeeded in establishing insubordination - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Jaharuddin Abd Karim v. Dutch Lady Milk Industries Berhad
(Susila Sithamparam) [2009] 1 ILR 314

Misconduct - Claimant allowing publication of newspaper article without company’s authorisation or consent - Whether reasonable - Company information divulged - Effect of - Position held by the claimant - Whether company authorisation had been necessary - Reasons adduced by the claimant - Whether proven by the claimant - Evidence adduced by the claimant - Whether sufficient - Effect of - Whether the company’s action in dismissing him had been reasonable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) and Evidence Act 1950, ss. 32(g) & 114(g)
Tang Sung Teck v. Chin Lian Long Motor Vehicle Co Bhd
(Gabriel Gumis) [2009] 1 ILR 383

Misconduct - Claimant’s attitude towards his superiors - Whether reasonable - Claimant given warning in the past - Failing to take heed - Effect of - Claimant’s position in company - Whether misconduct proven by the company - Effect Of - Whether dismissal had been too harsh under the circumstances - Whether the claimant’s misconducts had been grievous enough to justify summary dismissal - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Tang Sung Teck v. Chin Lian Long Motor Vehicle Co Bhd
(Gabriel Gumis) [2009] 1 ILR 383

Performance - Unsatisfactory performance - Claimant asked to endorse drawings - Claimant declining - Reasons claimant declining - Whether reasonable - Whether respondent’s request had been illegal - Whether claimant under an obligation to carry out notwithstanding - Effect of - 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, ss. 20(3) & 30(5)
Abdul Razak Ismail v. Mix-Target (M) Sdn Bhd
(Chew Soo Ho) [2009] 1 ILR 346

Performance - Unsatisfactory performance - Claimant not given warning to improve - Whether respondent had been under duty to give claimant a warning - Position held by claimant - Effect of - Whether the company had managed to establish the claimant’s non performance - 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, ss. 20(3) & 30(5)
Abdul Razak Ismail v. Mix-Target (M) Sdn Bhd
(Chew Soo Ho) [2009] 1 ILR 346

Procedural impropriety - Appointment of Chairman - Whether appointment had been in conformity with respondents disciplinary procedure - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Vignaeswaran Shanmuganathan v. TNB Engineers Sdn Bhd
(Chew Soo Ho) [2009] 1 ILR 406

Procedural impropriety - Charges brought against the claimant - Whether lacking in material particulars - Effect of - What particulars the charge should have contained - Whether the principles of natural justice had been violated - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Jaharuddin Abd Karim v. Dutch Lady Milk Industries Berhad
(Susila Sithamparam) [2009] 1 ILR 314

Procedural impropriety - Charges - Framing of - Whether had lacked material particulars - Whether claimant had understood them - Whether claimant had been able to prepare his defence to them - Claimant not taking objection to them - Effect of - Industrial Relations Act 1967
Vignaeswaran Shanmuganathan v. TNB Engineers Sdn Bhd
(Chew Soo Ho) [2009] 1 ILR 406

Procedural impropriety - Charges - Framing of - Whether they had contained sufficient particulars - Effect of - Whether void ab initio - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Azami Ahmad v. Bluescope Steel (Malaysia) Sdn Bhd
(Susila Sithamparam) [2009] 1 ILR 433

Procedural impropriety - Chairman of the panel - Claimant had lodged a report against him for negligence in the past - Whether there had been a likelihood of bias - Whether claimant had been given option to recuse the Chairman - Whether the principles of natural justice had been violated - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Jaharuddin Abd Karim v. Dutch Lady Milk Industries Berhad
(Susila Sithamparam) [2009] 1 ILR 314

Procedural impropriety - Minutes of investigation relied on at domestic inquiry - Whether it had been prejudicial to the claimant - Claimant not warned that his statements could be used against him - Effect of - 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)
Azami Ahmad v. Bluescope Steel (Malaysia) Sdn Bhd
(Susila Sithamparam) [2009] 1 ILR 433

Procedural impropriety - Pornographic images relied on by company given to panel only at deliberation stage - Claimant precluded from rebutting the documentary evidence - Effect of - 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)
Azami Ahmad v. Bluescope Steel (Malaysia) Sdn Bhd
(Susila Sithamparam) [2009] 1 ILR 433

Admissibility of - Representations made by the company - Whether relevant to show binding agreement - Whether an oral representation can vary the express terms of the VSS - Effect of - Evidence Act 1950, ss. 91 & 92
PPG Coatings (Malaysia) Sdn Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Petroleum Dan Kimia
(Umi Kalthum Abdul Majid) [2009] 1 ILR 289

Documentary evidence - Claimant seeking discovery of company documents - Whether order for discovery sought had been too wide - Whether documents sought had been relevant to the claimant’s claim - Effect of - Industrial Court Rules 1967, r. 21(B)
David Raymond Pitman v. Vesuvius KSR Sdn Bhd
(Siti Saleha Abu Bakar) [2009] 1 ILR 272

Documentary evidence - Evidence adduced by the company - Whether sufficient to prove the charges against the claimant - Company obtaining documentary evidence the subject matter of the charge from various sources and not from the company computers - Admissibility of - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 54(2)
Azami Ahmad v. Bluescope Steel (Malaysia) Sdn Bhd
(Susila Sithamparam) [2009] 1 ILR 433

Jurisdiction - Claimant claiming reimbursement of taxes - Claimant not objecting to paying taxes until he was dismissed - Whether the Industrial Court had jurisdiction to hear the matter - Effect of - Where the appropriate venue for such a claim had been - Industrial Relations Act 1967
David Raymond Pitman v. Vesuvius KSR Sdn Bhd
(Siti Saleha Abu Bakar) [2009] 1 ILR 272

Jurisdiction - Ministerial reference - Effect of - Whether court had threshold jurisdiction - What this meant - Company not challenging reference in High Court - Effect of - Industrial Relations Act 1967
Kesatuan Pekerja-pekerja Perusahaan Letrik Malaysia Sdn Bhd v. Panasonic AVC Networks Kuala Lumpur Malaysia Sdn Bhd
(Yeoh Wee Siam) [2009] 1 ILR 259

Procedure - Contempt proceedings - When it occurs - Whether ingredients of contempt proven - Whether s. 58 of Industrial Relations Act had applied to claimant’s application - Effect of - Industrial Relations Act 1967, s. 58 & Penal Code (Revised 1997) s. 228
Sathiyamoorthy Karunthappan v. TG Medical Sdn Bhd
(Yamuna Menon) [2009] 1 ILR 453

Remedies - Compensation - Probationer claimant - How calculated - Global sum awarded - Basis of - Industrial Relations Act 1967
Abdul Razak Ismail v. Mix-Target (M) Sdn Bhd
(Chew Soo Ho) [2009] 1 ILR 346

Remedies - Determination of - Conduct of respondent - Whether compensation was justified - Effect of - Industrial Relations Act 1967
National Union Of Hotel, Bar & Restaurant Workers, Peninsular Malaysia v. Traders Hotel Penang By Shangri-La
(Susila Sithamparam) [2009] 1 ILR 368

Remedies - Punishment - Claimant’s salary halved - Subsequently claimant dismissed - Whether constituted double jeopardy to the claimant for the same misconduct - Whether an unfair labour practise - Whether dismissal had been with just cause and excuse - Industrial Relations Act 1967, s. 30(5)
Abdul Razak Ismail v. Mix-Target (M) Sdn Bhd
(Chew Soo Ho) [2009] 1 ILR 346

Remedies - Reinstatement - Whether appropriate - Bistro closed down - Prerogative of the employer - Effect of - No evidence that LIFO breached - Industrial Relations Act 1967
National Union Of Hotel, Bar & Restaurant Workers, Peninsular Malaysia v. Traders Hotel Penang By Shangri-La
(Susila Sithamparam) [2009] 1 ILR 368

Award - Consent award - Complainant given one-year contract to sign when reporting for duty - Directive received from respondent’s Australian headquarters - Whether it bound the complainant - Complainant had been with the company since 1998 - Effect of - Whether the respondent had complied with the terms of the consent award - Consent award entered into by both parties - What that meant - Effect of - Industrial Relations Act 1967, s. 56(1)
Kavidah Machap v. Cigweld (M) Sdn Bhd
(Amelia Tee Hong Geok Abdullah) [2009] 1 ILR 247

Award - Consent award - Complainant reporting for duty pursuant to terms of consent award - Complainant asked to fill up her personal particulars - Complainant refusing to - Effect of - Whether complainant had been considered new recruitment – Industrial Relations Act 1967, s. 56(1)
Kavidah Machap v. Cigweld (M) Sdn Bhd
(Amelia Tee Hong Geok Abdullah) [2009] 1 ILR 247

Award - Consent award - Complainant seeking a variation of the consent award - Compensation to be paid in lieu of reinstatement - Whether reasonable under the circumstances - Reasons advanced by the complainant - Claimant’s motives - Effect of - Whether constituted special circumstances justifying a variation - Industrial Relations Act 1967, s. 56(1)
Kavidah Machap v. Cigweld (M) Sdn Bhd
(Amelia Tee Hong Geok Abdullah) [2009] 1 ILR 247

Collective Agreement - Article on retrenchment - Notice to be given on retrenchment - Whether union had to be given notice - Functions of the union - Effect of - Whether article in the Collective Agreement had been less favorable than the Employment Act 1955 - Whether the employees at the Bistro were covered by the Employment Act 1955 - Whether the respondent had complied with the article in the Collective Agreement - Effect of - Industrial Relations Act 1967, ss. 2, 14(3) & 56(1) & Employment Act 1955 s. 13
National Union Of Hotel, Bar & Restaurant Workers, Peninsular Malaysia v. Traders Hotel Penang By Shangri-La
(Susila Sithamparam) [2009] 1 ILR 368

Collective Agreement - Whether the union would have succeeded had they brought a claim under this head - Whether there had been a non-compliance to the terms of the CA - VSS not covered by CA - Industrial Relations Act 1967 s. 56(1)
Kesatuan Pekerja-pekerja Perusahaan Letrik Malaysia Sdn Bhd v. Panasonic AVC Networks Kuala Lumpur Malaysia Sdn Bhd
(Yeoh Wee Siam) [2009] 1 ILR 259

Collective Agreement - Article on redundancy benefits - Not complied by the company - Company offering VSS to the claimants - Whether company had induced the claimants to accept the VSS - Representations made by the company - Whether to claimants detriment - Compensation received by claimants under VSS less than what they would have received under the CA - Effect of - Whether the VSS had been a separate scheme that could be contracted out of the terms of the CA - Effect of - Industrial Relations Act 1967, ss. 26(2) & 30(5)
PPG Coatings (Malaysia) Sdn Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Perusahaan Petroleum Dan Kimia
(Umi Kalthum Abdul Majid) [2009] 1 ILR 289

Collective Agreement - Company offering VSS - VSS a voluntary scheme - No compulsion by the company on the workers to accept the VSS - Effect of - Whether the VSS came within the scope of the CA - Effect of - What should have been done by the union under those circumstances - Industrial Relations Act 1967, ss. 26(2) & 30(5)
Kesatuan Pekerja-pekerja Perusahaan Letrik Malaysia Sdn Bhd v. Panasonic AVC Networks Kuala Lumpur Malaysia Sdn Bhd
(Yeoh Wee Siam) [2009] 1 ILR 259

Collective Agreement - Company offering VSS - Whether the union had been given notice by the company - Whether the company had been under an obligation to give notice to the union - VSS not within scope of CA - Effect of - No complaint lodged by employees who had accepted the VSS - Effect of - Whether the union had the locus standi to represent the workers in such a situation - Industrial Relations Act 1967, ss. 26(2) & 30(5)
Kesatuan Pekerja-pekerja Perusahaan Letrik Malaysia Sdn Bhd v. Panasonic AVC Networks Kuala Lumpur Malaysia Sdn Bhd
(Yeoh Wee Siam) [2009] 1 ILR 259

Collective Agreement - Whether Code of Conduct for Industrial Harmony had been followed - Whether the Code covered VSS - Effect of - Industrial Relations Act 1967, ss. 26(2) & 30(5A)
Kesatuan Pekerja-pekerja Perusahaan Letrik Malaysia Sdn Bhd v. Panasonic AVC Networks Kuala Lumpur Malaysia Sdn Bhd
(Yeoh Wee Siam) [2009] 1 ILR 259

Collective Agreement - Whether there existed a trade dispute between the parties - Whether conditions in s. 2 of the Industrial Relations Act had been fulfilled - Industrial Relations Act 1967, s. 2
Kesatuan Pekerja-pekerja Perusahaan Letrik Malaysia Sdn Bhd v. Panasonic AVC Networks Kuala Lumpur Malaysia Sdn Bhd
(Yeoh Wee Siam) [2009] 1 ILR 259

"intentionally" - meaning of - Obstructing or interrupting court proceedings - Whether satisfied - Claimant Tamil speaking national - Likelihood of Immigration officer understanding him - Effect of - Penal Code (Revised 1997) s. 228
Sathiyamoorthy Karunthappan v. TG Medical Sdn Bhd
(Yamuna Menon) [2009] 1 ILR 453

"less favorable" - Meaning of - Who it applied to - Interpretation of - Industrial Relations Act 1967, ss. 2 & 14(3)
National Union Of Hotel, Bar & Restaurant Workers, Peninsular Malaysia v. Traders Hotel Penang By Shangri-La
(Susila Sithamparam) [2009] 1 ILR 368

Remedi - Gaji kebelakangan - YM mengandung semasa dibuang kerja - YM tidak mendapat kerja selama 2 tahun selepas dibuang kerja - Sebabnya - Peratusan yang harus ditolak dari jumlah pampasan yang diawardkan - Faktor yang diambil kira - Akta Mahkamah Perusahaan 1967, s. 20(3)
Alico Diesel & Turbo Parts Sdn Bhd lwn. Tsui Su Yun
(Abd Rahman Abdol) [2009] 1 ILR 303

Salahlaku jenayah - Yang menuntut ditahan polis untuk penyalahgunaan dadah semasa waktu bekerja - Syarikat mengambil tindakan tatatertib terhadap yang menuntut dan yang menuntut dibuang kerja - Mahkamah Sesyen kemudiannya membebaskan yang menuntut - Sama ada tindakan syarikat membuang kerja yang menuntut diambil secara terburu-buru - Kesannya - Sama ada syarikat sepatutunya menunggu keputusan Mahkamah Sesyen sebelum membuang kerja yang menuntut - Asas pertuduhan syarikat terhadap yang menuntut - Sama ada salahlaku YM dibuktikan - Sama ada pembuangan kerja YM adalah tanpa alasan atau sebab yang adil - Akta Mahkamah Perusahaan 1967, s. 20(3)
Rosedi Ludin lwn. Pos Malaysia Berhad
(Sulaiman Ismail) [2009] 1 ILR 278

Salahlaku - Saksi responden tidak mempunyai pengetahuan peribadi tentangnya - Saksi responden bergantung kepada kata pekerja-pekerja dan pelanggannya - Pelanggan-pelanggan dan pekerja-pekerja tersebut tidak dipanggil untuk memberi keterangan - Tiada alasan diberikan - Kesannya - YM menyangkal telah melakukan salahlaku tersebut - Sama ada responden berjaya membuktikan salahlaku YM - Sama ada pembuangan kerja YM adalah tanpa alasan atau sebab yang adil - Akta Mahkamah Perusahaan 1967, s. 20(3)
Alico Diesel & Turbo Parts Sdn Bhd lwn. Tsui Su Yun
(Abd Rahman Abdol) [2009] 1 ILR 303

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