ILR Bulletin, Issue 2009, Vol 04
June 2009

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INDUSTRIAL LAW REPORTS ISSUE 4 of 2009

AWARDS REPORTED

SUBJECT INDEX

Terms and conditions - Notice of termination - Claimant terminated pursuant to terms of contract - Claimant past age of retirement when he had rejoined the company - Claimant aware of retirement age in company - Reasons adduced by company for claimants termination - Effect of - Whether the company’s actions were bona fide - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ravindran Ayasamy v. Malaysia Design & Innovation Centre
(Susila Sithamparam) [2009] 2 ILR 102

Terms and conditions - Notice of termination - Claimant terminated pursuant to terms of contract - Degree of control by the company on the claimant - Whether the claimant had been a workman within the definition of the Act - Matters to consider - Whether claimant protected by the Act - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3), 30(5) & 2
Ravindran Ayasamy v. Malaysia Design & Innovation Centre
(Susila Sithamparam) [2009] 2 ILR 102

Attendance - Claimant issued a show cause letter - Whether a fundamental breach of the contract of employment - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Suppiah Vellaisamy v. The New Straits Times Press (Malaysia) Berhad
(Franklin Goonting) [2009] 2 ILR 109

Attendance - Claimant taking more leave than contractual entitlement - Effect of - Whether the non-approval of his annual leave by the respondent had been justified - Claimant overpaid - Respondent deducting his salaries and deferred salaries to recoup overpayment - Effect of - Whether a fundamental breach of the contract of employment - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Suppiah Vellaisamy v. The New Straits Times Press (Malaysia) Berhad
(Franklin Goonting) [2009] 2 ILR 109

Breach of company rules and policies - Confidentiality clause - Whether claimant had been in breach of it - Claimant photocopying company documents and giving it to third parties - Documents not marked "confidential" or kept in a sealed envelope - Whether the documents had been of a confidential nature - Effect of - Documents used as basis of a newspaper article - Company’s name not mentioned - Whether the company’s image had been tarnished - 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)
Norazah Abdul Rashid v. Anjur Dinamik Sdn Bhd
(Susila Sithamparam) [2009] 2 ILR 226

Breach of company rules and policies - Medical leave - Claimant going on medical leave during crucial time for the company - Whether claimant had been aware - Rumours that claimant had threatened to take medical leave if her annual leave was not approved - Effect of - Claimant submitting medical certificates - Whether the company had verified claimant’s medical condition - Whether the company had acted professionally and ethically - Company not challenging medical certificates submitted by the claimant - 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)
Norazah Abdul Rashid v. Anjur Dinamik Sdn Bhd
(Susila Sithamparam) [2009] 2 ILR 226

Breach of company rules and policies - Medical leave - Claimant transferred to Human Resources Department - Claimant not happy - Attempts to see top level people in the company unsuccessful - Effect of - Whether claimant’s grievances had been genuine - 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)
Norazah Abdul Rashid v. Anjur Dinamik Sdn Bhd
(Susila Sithamparam) [2009] 2 ILR 226

Change of ownership - 1st company under receivership - Selling assets to 2nd company - Effect of - Whether the 1st company had changed its ownership by such sale - 1st company and 2nd company entering into management agreement with third parties - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Abdul Aziz Abdul Majid & Ors v. Kuantan Beach Hotel Sdn Bhd & Anor
(Haji Sulaiman Ismail) [2009] 2 ILR 168

Change of ownership - 1st company selling assets to 2nd company by Sale and Purchase Agreement - Contents of Sale and Purchase Agreement - Only buildings and property had been purchased - Effect of - Whether an automatic transfer had taken place - Whether the claimants’ were to be transferred to the 2nd company - Whether there had been privity of contract between the 2nd company and the claimants’ - Effect of - Whether the 2nd company had been bound by the terms of the Collective Agreement entered into between the claimants’ and the 1st company - Terms of the Collective Agreement - Whether the claimants’ had been employed or terminated by the 2nd company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & Evidence Act 1950, ss. 91 and 92
Abdul Aziz Abdul Majid & Ors v. Kuantan Beach Hotel Sdn Bhd & Anor
(Haji Sulaiman Ismail) [2009] 2 ILR 168

Change of ownership - 1st company under receivership - Whether it had informed the union of its predicament - Termination letters subsequently issued - Whether Code of Conduct for Industrial Harmony adhered to - Effect of - Whether the purpose for which the claimants had been employed had come to an end - Whether there had been discrimination between unionized and non-unionized members - Effect of - Whether the 1st company had been justified in their actions - Whether the 1st company’s actions had been reasonable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) and 30(5)
Abdul Aziz Abdul Majid & Ors v. Kuantan Beach Hotel Sdn Bhd & Anor
(Haji Sulaiman Ismail) [2009] 2 ILR 168

Constructive dismissal - Claimant reaching the age of retirement - Retirement age stipulated in Employee Handbook of parent company - Whether the employee handbook bound the claimant and the company’s employees - Whether the corporate veil of the company and parent company could be lifted - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & Code of Conduct for Industrial Harmony
Ng Chee Wan v. Ranhill Bersekutu Sdn Bhd
(Susila Sithamparam) [2009] 2 ILR 80

Constructive dismissal - Transfer - Claimant accused of dishonesty in handling monies - Whether proven by the college - No standard procedure adopted by the college in the handling of monies - Past practise of the college - Claimant’s job functions - Effect of - Whether proven by the college - Whether the transfer had constituted a demotion - Effect of - Conduct of company - 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)
Jane VM Fernandez v. Kolej Tuanku Jaafar
(Mary Shakila Azariah) [2009] 2 ILR 182

Constructive dismissal - Transfer - Claimant issued a show cause letter and duly responded - Company failing to revert to her on the outcome of her reply - Company in possession of a reply - Effect of - Company’s actions - Whether company’s actions actuated by bad faith - Whether fundamental breach of the contract of service by the company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Maybank v. Cheo Ai Mee
(Syed Ahmad Radzi Syed Omar) [2009] 2 ILR 204

Constructive dismissal - Transfer - Prerogative of the employer - Whether could be challenged - Effect of - Whether the transfer had effectively been a demotion - Claimant’s terms and conditions of service remained unchanged - Whether company’s actions were bona fide - Reasons for the transfer - Effect of - Claimant only person affected by the transfer - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & 30(5)
Sukhdev Singh Pritam Singh v. Bax Global (Malaysia) Sdn Bhd
(Mary Shakila Azariah) [2009] 2 ILR 129

Constructive dismissal - Transfer - Prerogative of the employer - Whether the 5 restrictions to the managerial prerogative had been breached - Effect of - Whether the transfer had been bona fide - Claimant’s terms and conditions of service remained unchanged - Whether company’s actions were bona fide - Reasons for the transfer - Effect of - Claimant only person affected by the transfer - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Maybank v. Cheo Ai Mee
(Syed Ahmad Radzi Syed Omar) [2009] 2 ILR 204

Constructive dismissal - Transfer - Transfer based on finding of guilt - Decision wrongly arrived at - Effect of - Transfer in essence a demotion - Whether the transfer had been erroneous - Whether college’s loss of confidence in her had been unmeritorious - Whether a breach of contract of employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Jane VM Fernandez v. Kolej Tuanku Jaafar
(Mary Shakila Azariah) [2009] 2 ILR 182

Constructive dismissal - Transfer - Whether the transfer had been a demotion - Whether the claimant had rejected the transfer - Whether company aware that claimant had rejected the transfer - Effect of - Company’s actions - Whether company’s actions actuated by bad faith - Whether fundamental breach of the contract of service by the company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Sukhdev Singh Pritam Singh v. Bax Global (Malaysia) Sdn Bhd
(Mary Shakila Azariah) [2009] 2 ILR 129

Constructive dismissal - Transfer - Whether bona fide - Audit report the basis of the transfer - How the audit report had been conducted - Whether bias had existed - Claimant’s alibi not taken into account - Effect of - Claimant alleging COW2 threatened her - Police report lodged - Company aware of police report - Whether COW2 should have been excused from the investigation - Effect of - Whether claimant singled out to shoulder the blame - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Maybank v. Cheo Ai Mee
(Syed Ahmad Radzi Syed Omar) [2009] 2 ILR 204

Constructive dismissal - Unilateral variation of contract by the company - Effect of - Whether the company’s actions were bona fide - Claimant given retirement notice - Whether claimant had been aware of retirement age of the company - Retirement age not stipulated in any of the claimant’s contracts of employment - Whether the company’s retirement age had been equitable - Company refusing to withdraw retirement notice - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ng Chee Wan v. Ranhill Bersekutu Sdn Bhd
(Susila Sithamparam) [2009] 2 ILR 80

Constructive dismissal - Whether claimant had been bound by the terms in the Employee Handbook - No reference to employee handbook in claimant’s letters of appointment - Effect of - Whether the claimant had enjoyed any benefits under the terms of the handbook - Whether the doctrine of approbation and reprobation had applied in this case - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Ng Chee Wan v. Ranhill Bersekutu Sdn Bhd
(Susila Sithamparam) [2009] 2 ILR 80

Constructive dismissal - Whether claimant had fulfilled the contract test - Effect of - Claimant walking out on constructive dismissal - Whether respondent’s actions had been reasonable - Effect of - Whether there was a fundamental breach of terms of employment by respondent - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Suppiah Vellaisamy v. The New Straits Times Press (Malaysia) Berhad
(Franklin Goonting) [2009] 2 ILR 109

Insubordination - Claimant terminated - Whether claimant had been informed of reasons for his termination - Whether evidence adduced by company had been sufficient - Consistency of company’s evidence - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Hussin Md Zin v. Triways Holdings (M) Sdn Bhd
(Franklin Goonting) [2009] 2 ILR 142

Insubordination - Claimant replying to show-cause letter - Whether accepted by the company - Company perceiving claimant’s reply as brash - Effect of - Whether the company had succeeded in establishing insubordination - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Hussin Md Zin v. Triways Holdings (M) Sdn Bhd
(Franklin Goonting) [2009] 2 ILR 142

Insubordination - Contents of claimant’s e-mails - Whether it had been rude - Whether the claimant had been provoked into writing those e-mails - Whether proven by the claimant - Company’s actions - Effect of - Claimant’s position in the company - Whether the company had succeeded in establishing insubordination - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mior Rosli Mior Mohd Jaafar v. Bumi Armada Berhad
(Susila Sithamparam) [2009] 2 ILR 39

Notice of termination - Claimant past retirement age - Claimant issued termination letter effectively retiring him - Claimant allowed to work past retirement age on goodwill basis before - Effect of - Whether claimant had been retired - Factors to consider - Conduct and practise of company - Effect of - Whether the company’s actions were bona fide - Effect of - Whether the claimant had been retired or dismissed - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & 30(5)
Md Hussain Ibrahim v. Sateras Resources (Malaysia) Berhad
(Yamuna Menon) [2009] 2 ILR 62

Notice of termination - Claimant retired as he had passed the age of retirement - Whether proven by the company - Whether company had satisfied their burden of proof - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Md Hussain Ibrahim v. Sateras Resources (Malaysia) Berhad
(Yamuna Menon) [2009] 2 ILR 62

Absence of - Company aware of need for one - Reasons for not holding a Domestic Inquiry - Whether could be accepted - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Hussin Md Zin v. Triways Holdings (M) Sdn Bhd
(Franklin Goonting) [2009] 2 ILR 142

Admissions - Whether the claimant’s evidence had negated his allegations of breach of contract - Effect of - Industrial Relations Act 1967
Suppiah Vellaisamy v. The New Straits Times Press (Malaysia) Berhad
(Franklin Goonting) [2009] 2 ILR 109

Adverse inference - Non-production of material evidence - Company failing to produce the tape - Company witnesses failing to corroborate COW2’s evidence - Effect of - Whose evidence more believable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & Evidence Act 1950, s. 114(g)
Maybank v. Cheo Ai Mee
(Syed Ahmad Radzi Syed Omar) [2009] 2 ILR 204

Burden of proof - At domestic inquiry - Who bore the burden - College themselves not believing that the claimant was guilty - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Jane VM Fernandez v. Kolej Tuanku Jaafar
(Mary Shakila Azariah) [2009] 2 ILR 182

Documentary evidence - Findings of domestic inquiry - Whether the panel had considered all the evidence properly - Expectation of panel - Whether erroneous - Whether panel had overlooked certain facts - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Jane VM Fernandez v. Kolej Tuanku Jaafar
(Mary Shakila Azariah) [2009] 2 ILR 182

Jurisdiction - Whether claimant had prayed for reinstatement - Matter not pleaded by the company - Matter not put to claimant in cross-examination - Effect of - Whether the Court had jurisdiction to hear the matter - Industrial Relations Act 1967
Hussin Md Zin v. Triways Holdings (M) Sdn Bhd
(Franklin Goonting) [2009] 2 ILR 142

Remedies - Compensation - Backwages - Whether should be limited to 24 months - Pre-amendment to the Industrial Relations Act 1967 - Factors to consider - Whether the company had caused delay - Effect of - Whether there were justifiable circumstances for the court to depart from Practise Direction 1 of 1987 - Effect of - What was a fair, reasonable and equitable amount to award - Industrial Relations Act 1967, ss. 20(3) & 30(5) and Industrial Relations (Amendment) Act 2007 2nd Schedule, s. 30(6)
Abdul Rahim Abdul Manaf v. Hicom Holding Berhad
(Ahmad Terrirudin Mohd Salleh) [2009] 2 ILR 54

Remedies - Compensation - Retirement benefits - Whether it had been a term of the claimant’s employment contract - Effect of - Whether it could be considered future earnings - Claimant would have been entitled to it had he not been dismissed - What had been fair and equitable under the circumstances - Effect of - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Abdul Rahim Abdul Manaf v. Hicom Holding Berhad
(Ahmad Terrirudin Mohd Salleh) [2009] 2 ILR 54

Employment - Dismissal - Allegation of unlawful and unjust dismissal - Claim for salary and benefits - Backwages - Whether Industrial Court the proper forum - Whether an abuse of court process for plaintiff to file present claim - Whether plaintiff allowed to succeed in obtaining declaration - Industrial Relations Act 1967, s. 20(1), (1A)
Daud Abdul Kadir v. Malaysian Airlines System Bhd
(Tee Ah Sing J) [2009] 2 ILR 1

Compensation - Calculation of - Whether the claimant had been guilty of contributory misconduct - Whether the claimant had used rash words in his reply - Whether a challenge had been made to the company - Effect of - Industrial Relations Act 1967, s. 30(5)
Hussin Md Zin v. Triways Holdings (M) Sdn Bhd
(Franklin Goonting) [2009] 2 ILR 142

Collective Agreement - Interpretation of article on shift allowance - Whether the current shift rates had been competitive with other companies in the same industry - Whether current shift allowance had been fair and reasonable - Comparable industry used based in Taiping - Comparable industry in operation for less years than the company - Effect of - Whether acceptable - Union failing to provide a better company to use as a comparison - Effect of - Industrial Relations Act 1967, s. 30(4)
Kesatuan Kebangsaan Pekerja-Pekerja Syarikat Syarikat Pembuat Keluaran Getah v. Goodyear Malaysia Berhad
(Syed Ahmad Radzi) [2009] 2 ILR 159

Collective Agreement - Interpretation of article on wage adjustment - Company’s profit trend - Effect of the global financial economic crisis - Responsibility of the Industrial Court - Basis for the increase - Effect of - Industrial Relations Act 1967, ss. 30(4), 30(5) & 30(7)
Kesatuan Kebangsaan Pekerja-Pekerja Syarikat Syarikat Pembuat Keluaran Getah v. Goodyear Malaysia Berhad
(Syed Ahmad Radzi) [2009] 2 ILR 159

"workman" - Definition of - Whether claimant came within the definition of workman - No Employees’ Provident Fund contributions made - Whether that had been material - Reasons adduced for the same - Effect of - Industrial Relations Act 1967, ss. 2 & 20 & Employees Provident Fund Act 1991, s. 54C(3)
Ravindran Ayasamy v. Malaysia Design & Innovation Centre
(Susila Sithamparam) [2009] 2 ILR 102

CASE OF THE WEEK

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