ILR Bulletin, Issue 2009, Vol 03
April 2009

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INDUSTRIAL LAW REPORTS ISSUE 3 of 2009

AWARDS REPORTED

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Certiorari, application for - Setting aside or quashing award of Industrial Court - Constructive dismissal - Compensation in lieu of reinstatement - Reimbursement - Whether dismissal without just cause and excuse - Whether interference with decision justified
Chong Mee Hup Kee Sdn Bhd v. Mahkamah Perusahaan Malaysia & Anor
(VT Singham J) [2009] 1 ILR 465

DISMISSAL

Absenteeism - Claimants not turning up for work - Whether it had been a strike - Reasons given by the claimants - Whether claimants failure to turn up for work had been a willful breach - Whether the company had been aware of the claimants failure to turn up for work - Effect of - Whether claimants actions had constituted a misconduct - Whether the company had managed to establish the misconduct against the claimants - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & Employment Act 1955, s. 15(2)
Khagendra GC & Anor v. Perabut Chip Hong Sdn Bhd
(Jalaldin Hussain) [2009] 1 ILR 620

Absenteeism - Foreigner claimants - Terms of the employment contract - Whether claimants had been subject to the Labour Office Regulations - Whether breached by claimants - Term which was allegedly breached not stated - Employment contract not produced by company - Effect of - Termination letter not addressed to claimants - Effect of - Whether the company had complied with the termination clause in the claimants contract - Whether the company had managed to establish the misconduct against the claimants - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & Employment Act 1955, ss. 13 and 15
Khagendra GC & Anor v. Perabut Chip Hong Sdn Bhd
(Jalaldin Hussain) [2009] 1 ILR 620

Breach of company rules & policies - Bribery - Demanding of - Respondent’s suppliers offering claimant commission payments - Subsequently lodging a complaint against the claimant - Whether the complainant had come to court with clean hands - Claimant not in receipt of any monies - Effect of - Claimant aware of company policy - Whether it had constituted a misconduct - Whether claimant had tarnished company image by his actions - Whether the company had managed to prove the misconduct against the claimant - Evidence relied on by the respondent - Whether correctly relied on - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Lim Boon Keong v. On Semiconductor, SCG Industrial Malaysia Sdn Bhd
(Chew Soo Ho) [2009] 1 ILR 587

Breach of company rules & policies - Bribery - Demanding of - Claimant had informed his immediate superior of his actions - No objections from immediate superior - Whether it constituted condonation by the respondent company - Effect of - 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)
Lim Boon Keong v. On Semiconductor, SCG Industrial Malaysia Sdn Bhd
(Chew Soo Ho) [2009] 1 ILR 587

Breach of company rules and policies - Drugs - Abuse of - Claimant tested positive for drugs but not a drug dependent within the meaning of the act - Whether it had constituted a misconduct - Claimant remanded by police - Company suspending him and subsequently dismissing him - Police releasing the claimant - Pilfering of company goods - Whether company had been right in dismissing the claimant - Whether the company had proven the misconduct against the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Kamisan Abu Bakar v. Allied Pickfords (M) Sdn Bhd
(Rajendran Nayagam) [2009] 1 ILR 497

Breach of company rules and policies - Drugs - Abuse of - Claimant a repeat offender - Company employing him despite prior misconduct - Effect of - Whether the company could take into account his previous misconduct - Seriousness of the goods pilfering suffered by the company - Effect on the company’s reputation - 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)
Kamisan Abu Bakar v. Allied Pickfords (M) Sdn Bhd
(Rajendran Nayagam) [2009] 1 ILR 497

Breach of company rules and policies - Fraud/Dishonesty - Claimant cheating on mandatory test - Whether established by the company - Claimant admitting to the same in his explanation letter - Subsequently retracting it and proffering reasons for admission - Whether acceptable - Effect of - Whether the company had managed to establish the misconduct against the claimant - Whether it had been serious enough to warrant dismissal - Whether the relationship of trust and confidence had broken down between the parties - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Azami Alias v. Malaysian Airlines System Berhad
(Siti Saleha Abu Bakar) [2009] 1 ILR 506

Breach of company rules and policies - Fraud/ Dishonesty - Whether claimant had demanded monies from the retailers - Claimant’s job functions - Purpose for which monies were put to use - Entertainment of ministry officials - Whether it had been in breach of the company’s policy - Whether claimant had been aware of company policy - 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)
Mohd Hashim Zainal Abidin v. Caltex Oil Malaysia Limited
(Amelia Tee Hong Geok Abdullah) [2009] 1 ILR 536

Breach of company rules and policies - Fraud/Dishonesty - Whether entertainment of ministry officials had been within claimant’s job scope - Company requesting the claimant to "manage" the situation - Effect of - Whether claimant had to "manage" the situation within confines of the law and company policy - 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)
Mohd Hashim Zainal Abidin v. Caltex Oil Malaysia Limited
(Amelia Tee Hong Geok Abdullah) [2009] 1 ILR 536

Breach of company rules and policies - Medical leave - Whether claimant had taken excessive medical leave - Claimant’s medical condition - Whether claimant had been unable to perform his job functions - Medical report submitted - Whether it had been adequate - Company not discussing the medical report with the claimant - Whether the claimant should have been allowed to get an independent opinion on his capabilities to do the job - 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)
Steven Eruthiaraj Peter Felix Dawson v. Johan Ceramics Berhad
(Susila Sithamparam) [2009] 1 ILR  522

Breach of company rules and policies - Medical leave - Whether claimant had taken excessive medical leave - Company requesting that claimant be given medical leave - Effect of - Whether claimant had been harassed by the company - Actions of the company - 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)
Steven Eruthiaraj Peter Felix Dawson v. Johan Ceramics Berhad
(Susila Sithamparam) [2009] 1 ILR 522

Breach of company rules and policies - Medical leave - Claimant taking long medical leave - Whilst on medical leave claimant sitting on SOCSO Appeal Board - Effect of - Whether company could take objection to 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)
Steven Eruthiaraj Peter Felix Dawson v. Johan Ceramics Berhad
(Susila Sithamparam) [2009] 1 ILR 522

Breach of company rules and policies - Fraud/Dishonesty - Claimant forging entries in daily checkroll data sheet - Whether it had been in breach of the company’s policy - Whether proven by the company - Whether company had condoned the claimant’s actions - 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, ss. 20(3) & 30(5)
Quek Shin & Sons Pte Ltd v. Elangovan Sabapathy
(Mohd Amin Firdaus Abdullah) [2009] 1 ILR 557

Breach of company rules and policies - Fraud/Dishonesty - Claimant forging harvesters signatures in the Advance Book - Whether it had been in breach of the company’s policy - Whether proven by the company - Whether company had condoned the claimant’s actions - 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, ss. 20(3) & 30(5)
Quek Shin & Sons Pte Ltd v. Elangovan Sabapathy
(Mohd Amin Firdaus Abdullah) [2009] 1 ILR 557

Breach of company rules and policies - Fraud/Dishonesty - Claimant taking loan from supplier - Whether it had been a friendly loan - Whether proven by the claimant - Whether her actions had contravened the company’s policy - Whether the claimant had been aware of such a policy - Effect of - Seniority of the claimant - Whether it should be taken into account - Whether there had been a conflict of interest - Whether the claimant had put the company in an embarrassing position - Claimant’s job functions - Whether she had abused her position - 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)
Nur Faridah Nanyan v. GKN Driveline Malaysia Sdn Bhd
(Mohd Amin Firdaus Abdullah) [2009] 1 ILR 610

Breach of company rules and policies - Theft - Attempted theft - Company’s case against claimant based on circumstantial evidence - Whether the circumstantial evidence had been sufficient to prove the claimant’s involvement in the misconducts - Whether proven by the company - Whether it had been in breach of the company’s policy - Effect of - Whether the company had managed to establish the misconducts against the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Sharp Roxy Corporation (M) Sdn Bhd v. Jaga The Son B Ramalingam
(Mohd Amin Firdaus Abdullah) [2009] 1 ILR 667

DOMESTIC INQUIRY

Absence of - Whether claimant had fallen under purview of Employment Act - Whether the failure to hold a Domestic Inquiry had been fatal - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & Employment Act 1955, s. 14
Kamisan Abu Bakar v. Allied Pickfords (M) Sdn Bhd
(Rajendran Nayagam) [2009] 1 ILR 497

Absence of - Whether the claimant had been given sufficient opportunity to answer to the allegations of misconduct - Claimant admitting to cheating on the test - Effect of - Whether the company had established the misconduct against him - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Azami Alias v. Malaysian Airlines System Berhad
(Siti Saleha Abu Bakar) [2009] 1 ILR 506

Findings - Finding of guilt on charges brought against the claimant - Whether claimant had been accorded the opportunity to mitigate before punishment was meted out - Whether the claimant had been en employee within the contemplation of the Employment Act 1955 - Job scope of the claimant - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967 & Employment Act 1955, s. 2(1) and First Schedule
Quek Shin & Sons Pte Ltd v. Elangovan Sabapathy
(Mohd Amin Firdaus Abdullah) [2009] 1 ILR 557

Findings - Whether the inquiry notes had been accurate - Effect of - Whether a prima facie case had been made out - Whether the matter should be heard de novo - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Sharp Roxy Corporation (M) Sdn Bhd v. Jaga The Son B Ramalingam
(Mohd Amin Firdaus Abdullah) [2009] 1 ILR 667

Findings - Whether the inquiry notes had been accurate - Inquiry conducted in the claimant’s absence - Reasons for claimant’s absence - Whether rules of natural justice had been breached - Whether the panel members had addressed their minds to all the available evidence - Effect of - Whether a prima facie case had been made out - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Quek Shin & Sons Pte Ltd v. Elangovan Sabapathy
(Mohd Amin Firdaus Abdullah) [2009] 1 ILR 557

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)
Lim Boon Keong v. On Semiconductor, SCG Industrial Malaysia Sdn Bhd
(Chew Soo Ho) [2009] 1 ILR 587

Procedural impropriety - Wording of charges - Whether had been vague - Whether had fulfilled the basic requirements of fairness - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Sharp Roxy Corporation (M) Sdn Bhd v. Jaga The Son B Ramalingam
(Mohd Amin Firdaus Abdullah) [2009] 1 ILR 667

EVIDENCE

Claimant’s evidence - Material contradictions between written explanation and written statements - Which one was more believable - Credibility of the claimant - Issues not pleaded brought up at trial - Whether should be accepted - Whether sufficiently proven by the claimant - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Quek Shin & Sons Pte Ltd v. Elangovan Sabapathy
(Mohd Amin Firdaus Abdullah) [2009] 1 ILR 557

Claimant’s evidence - Material contradictions - Effect of - Credibility of the claimant - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Sharp Roxy Corporation (M) Sdn Bhd v. Jaga The Son B Ramalingam
(Mohd Amin Firdaus Abdullah) [2009] 1 ILR 667

INDUSTRIAL COURT

Procedure - Action - Duplicity of action - High Court decision pending appeal before a judge in chambers - In the meantime similar action filed in Industrial Court - Effect of - Whether the facts and issues in the 2 matters had been similar - Whether there had existed a multiplicity of proceedings - Whether it had been desirable - Factors to consider - Effect of - Whether the matter should be adjourned sine die - Industrial Relations Act 1967, s. 30(5)
Barry Francis Spencer/Barii Spencer Abdullah v. Courts Mammoth Berhad
(Ong Geok Lan) [2009] 1 ILR 515

LABOUR LAW

Industrial Court - Award - Certiorari, application for - Setting aside or quashing award of Industrial Court - Constructive dismissal - Compensation in lieu of reinstatement - Reimbursement - Whether dismissal without just cause and excuse - Whether interference with decision justified
Chong Mee Hup Kee Sdn Bhd v. Mahkamah Perusahaan Malaysia & Anor
(VT Singham J) [2009] 1 ILR 465

Industrial Court - Recognition - Recognition by conduct - Section 9 of Industrial Relations Act 1967 - Employer had not expressly recognized trade union of its employees - Employer member of employer trade union which had concluded collective agreements for category of work involving employer’s employees - Whether employer bound by terms and conditions of collective agreements - Whether employer had by conduct accorded recognition to trade union in question - Flexibility in formalities for recognition of trade union - Recognition may be accorded without strict compliance with provisions of s. 9 of Industrial Relations Act 1967
Dynamic Plantations Bhd v. YB Menteri Sumber Manusia & Anor And Another Appeal
(James Foong JCA, Zainun Ali JCA & Ahmad Maarop JCA) [2009] 1 ILR 478

REMEDIES

Punishment - Mitigating factors - Whether dismissal too harsh under circumstances - Claimant’s unblemished record with the company not taken into account - Whether the claimant had been induced to breach company rules - Whether dishonest intent had been proven - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Lim Boon Keong v. On Semiconductor, SCG Industrial Malaysia Sdn Bhd
(Chew Soo Ho) [2009] 1 ILR 587

CASE OF THE WEEK

SUPPIAH VELLAISAMY v. THE NEW STRAITS TIMES PRESS (MALAYSIA) BERHAD

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