ILR Bulletin, Issue 2009, Vol 05
June 2009

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INDUSTRIAL LAW REPORTS ISSUE 5 of 2009

AWARDS REPORTED

SUBJECT INDEX

Statutory bodies - Appeal - Dissatisfaction with decision of disciplinary committee - Whether appeal to court proper procedure - Whether resort should be had to domestic appeal via s. 10B(8) Bank Pertanian Malaysia Act 1969 - Whether abuse of court’s process
Bank Pertanian Malaysia v. Ahmad Zaki Ismail
Nik Hashim FCJ, Abdul Aziz Mohamad FCJ, Hashim Yusoff FCJ [2009] 2 ILR 241

Statutory bodies - Bank - Disciplinary Committee - Suspended employee based on common law rights and remedies - Lack of specific disciplinary regulations - Whether committee empowered to mete out punishment in absence of disciplinary regulations - Whether reliance on common law justified - Whether warning issued to employee proper - Bank Pertanian Malaysia Act 1969, s. 38A
Bank Pertanian Malaysia v. Ahmad Zaki Ismail
(Nik Hashim FCJ, Abdul Aziz Mohamad FCJ, Hashim Yusoff FCJ) [2009] 2 ILR 241

Terms and conditions - Claimants involved in a merger exercise - Respondent company offering claimants contract for one year only - Claimants accepting based on assurances from respondent company - Effect of - Respondent company not keeping their word - Claimants contracts not renewed - Claimants services terminated - Effect of - Whether constituted a unilateral variation of contract - 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)
Shaharom Kamarudin & Ors v. Affin Bank Berhad
(Abdul Aziz Khalidin) [2009] 2 ILR 396

Terms and conditions - Merger exercise - Vesting order and business transfer agreement - Claimants not a party to the Agreement - Terms and conditions - Whether the claimants had been covered by it - Effect of - Whether the respondent had complied with them - Effect of - Claimants terminated - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Shaharom Kamarudin & Ors v. Affin Bank Berhad
(Abdul Aziz Khalidin) [2009] 2 ILR 396

Attendance - Lateness - Whether claimant had been habitually late - Reasons adduced by the claimant - Whether acceptable to the company - Effect of - Whether sufficient evidence adduced by the company - Company’s clock a few minutes ahead - Company’s clocking in machines breaking down from time to time - Whether the company had managed to establish the misconduct against the claimant - Effect of - Whether claimant had been given prior warning - Whether the claimant had been aware of the disciplinary procedures of the company - Whether claimant had been aware of the seriousness of the alleged misconduct - Whether the company had adhered to its disciplinary procedures - Whether the rules of natural justice had been breached - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Automotive Manufacturers (Malaysia) Sdn Bhd v. Ahmad Mohd Som
(Teo Say Eng) [2009] 2 ILR 290

Breach of company rules and policies - Conflict of interest with company - Whether had existed - Claimant purchasing goods direct from the supplier/vendor - Whether the goods had been purchased in her personal capacity - Whether that had been against the company’s practices - Whether the claimant had obtained consent from the company - Company had issued a directive that staff could purchase goods at cost through it - Claimant aware of such directive - Claimant still going against company directive - Effect of - Claimant’s position in company - Whether she had put herself in a position of conflict with the company - Whether the company had suffered a loss - Amount of the loss - Whether it had been relevant - 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)
Norhayati Abd Ghafar v. Goldplum Sdn Bhd
(Jalaldin Hj Hussain) [2009] 2 ILR 324

Breach of company rules and policies - Conflict of interest with the company - Whether the claimant had breached her fiduciary duties to the company - Whether the claimant had wrongfully gained by her actions - Whether the claimant had bought the goods directly - Interpretation of - Effect of - Whether the claimant had breached her express and implied terms with the company - Whether the employer-employee relationship of trust and confidence had been broken - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Norhayati Abd Ghafar v. Goldplum Sdn Bhd
(Jalaldin Hj Hussain) [2009] 2 ILR 324

Breach of company rules and policies - Misconduct - Failing to swipe attendance in and out - Whether proven by the company - Effect of - Claimant not the only one committing the alleged misconduct - No warning letters or show cause letters issued to him in the past - Disparity of treatment between claimant and others - Effect of - Whether the company had practised double standards - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Automotive Manufacturers (Malaysia) Sdn Bhd v. Ahmad Mohd Som
(Teo Say Eng) [2009] 2 ILR 290

Breach of company rules and policies - Procedures to be complied with on trade-in vehicles - Whether there had been an abuse - Whether it had constituted a misconduct - Effect of - Claimant’s defence of superior orders - Whether proven by the claimant - 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)
Gan Kim Koon v. UMW Toyota Motor Sdn Bhd
(Franklin Goonting) [2009] 2 ILR 315

Constructive dismissal - Sole proprietorship changed to partnership - Claimant’s employment had been affected - Effect of -Whether the claimant had been an employee or a partner of the firm - EPF contributions made by the firm for the claimant - Evidence tendered - Claimant’s actions - Whether the claimant had represented herself as a partner of the firm - No written partnership agreement entered into between the parties - Whether there had been an oral agreement - Effect of - Claimant walking out on constructive dismissal - Whether claimant’s actions had been reasonable - Effect of - Whether there had been a fundamental breach of terms of employment by the firm - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Tetuan Choong & Co v. Tan Sook Yin
(Siti Saleha Abu Bakar) [2009] 2 ILR 281

Misconduct - Claimant asked to sign agreement within time period - Claimant refusing - Claimant alleging agreement already exists documenting terms and conditions of employment - Temple disputing - Claimant producing Agreement 1 signed by temple trustee - Temple alleging trustee no capacity to execute Agreement 1 - Whether proven by temple - Effect of - Whether Agreement 1 had existed - Whether the temple had knowledge of it - Effect of - Whether temple had managed to establish the misconduct against the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 2 & 20(3)
Kovil Sri Muthu Mariamman & Ors v. Samugam Munusamy
(Mohd Amin Firdaus Abdullah) [2009] 2 ILR 257

Misconduct - Claimant’s attitude towards students and superiors - Whether had constituted a misconduct - Allegations levelled against the claimant - Whether the school had managed to establish the misconduct against the claimant - Whether company witnesses had discharged the school’s burden of proof and proven the charges - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 2 & 20(3)
Eng Shing Pong v. Pengetua Sekolah Menengah Swasta Genting Highlands
(Jalaldin Hj Hussain) [2009] 2 ILR 415

Misconduct - Claimant leaving project without consent of superior - Whether constituted a misconduct - Whether proven by 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)
Raja Izat Raja Ibrahim v. Peremba Construction Sdn Bhd
(Abdul Aziz Khalidin) [2009] 2 ILR 405

Misconduct - Claimant refusing to sign new agreement - Claimant alleging unilateral variation of agreement by temple - Whether proven by the claimant - Effect of - Whether temple’s actions of unilaterally varying contract had constituted a breach on their part - Effect of - What should have been done to vary terms in the agreement - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Kovil Sri Muthu Mariamman & Ors v. Samugam Munusamy
(Mohd Amin Firdaus Abdullah) [2009] 2 ILR 257

Misconduct - Whether proven by the company against the claimant - Conduct of the company - Company failing to take action for over a year - Whether the company had condoned the claimant’s misconduct - Effect of - Whether company could use the same ground to take disciplinary action - Whether company had acted bona fide - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Automotive Manufacturers (Malaysia) Sdn Bhd v. Ahmad Mohd Som
(Teo Say Eng) [2009] 2 ILR 290

Misconduct - Whether proven by the school - Parents taking out student from school - Loss of trust and confidence in the school - Effect of - Whether sufficiently serious to terminate the claimant’s employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Eng Shing Pong v. Pengetua Sekolah Menengah Swasta Genting Highlands
(Jalaldin Hj Hussain) [2009] 2 ILR 415

Notice of termination - Summary termination - Whether constituted a unilateral variation of contract - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ruth Mark Mark Bajanik Das v. Tang Ling Shopping Centre Sdn Bhd
(Fredrick Indran XA Nicholas) [2009] 2 ILR 387

Retrenchment - Redundancy - Not defined statutorily - What justified retrenchment - Factors to consider - Effect of - Steps taken by the firm - Whether the firm had faced a financial slowdown - When the firm had faced a slowdown - Effect of - Whether the firm’s actions were bona fide - Whether firm’s action had been premature - Effect of - Whether a redundancy situation had existed - Whether proven by the firm - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & 30(5), Employment Protection (Consolidation) Act 1978 (UK) s. 81(2)
Ajiah Atan & Ors v. P S Ranjan & Co
(Mary Shakila Azariah) [2009] 2 ILR 368

Absence of - Whether could be cured by hearing before the Industrial Court - Effect of - Whether claimant had come within the ambit of section 14 of the Employment Act 1955 - Earning capacity of the claimant - Effect of - Whether there had been flagrant breaches of natural justice - Industrial Relations Act 1967, s. 20(3) and Employment Act 1955, s. 14(1)
Eng Shing Pong v. Pengetua Sekolah Menengah Swasta Genting Highlands
(Jalaldin Hj Hussain) [2009] 2 ILR 415

Procedural impropriety - Way in which inquiry conducted - Whether fair - Effect of - Whether the claimant had been denied natural justice - Industrial Relations Act 1967
Automotive Manufacturers (Malaysia) Sdn Bhd v. Ahmad Mohd Som
(Teo Say Eng) [2009] 2 ILR 290

Documentary evidence - Findings of domestic inquiry - Whether to be adopted - Claimant not allowed to cross-examine material witness - Effect of - Whether notes of domestic inquiry should be ignored - Probative value of notes - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Gan Kim Koon v. UMW Toyota Motor Sdn Bhd
(Franklin Goonting) [2009] 2 ILR 315

Documentary evidence - Notes of the Domestic Inquiry - Claimant not challenging notes - Effect of - Whether claimant given chance to defend himself - Whether rules of natural justice complied with - Industrial Relations Act 1967
Automotive Manufacturers (Malaysia) Sdn Bhd v. Ahmad Mohd Som
(Teo Say Eng) [2009] 2 ILR 290

Documentary evidence - Notes of the Domestic Inquiry - Decision arrived at by panel - Basis of decision - Whether the panel had committed an error of law in arriving at its decision - Whether the panel had based its findings on assumptions - Effect of - Whether sufficient evidence adduced by company to prove the charges - Effect of - Whether the rules of natural justice had been complied with - Industrial Relations Act 1967
Automotive Manufacturers (Malaysia) Sdn Bhd v. Ahmad Mohd Som
(Teo Say Eng) [2009] 2 ILR 290

Witness - Credibility of temple witnesses - Whether testimonies supported by any other corroborative evidence - Effect of - Credibility of claimant’s witnesses - Who was more believable - Industrial Relations Act 1967
Kovil Sri Muthu Mariamman & Ors v. Samugam Munusamy
(Mohd Amin Firdaus Abdullah) [2009] 2 ILR 257

Jurisdiction - Whether legal assistants came within the definition of workmen - Test to be applied - Effect of - Whether the Court had jurisdiction to hear and adjudicate on the matter - Effect of - Industrial Relations Act 1967, s. 20
Ajiah Atan & Ors v. P S Ranjan & Co
(Mary Shakila Azariah) [2009] 2 ILR 368

Jurisdiction - Whether the claimant had come within the definition of workman under the Act - Claimant paid daily wages - Terms and conditions of employment contract - Verbal contract - Effect of - Degree of control exercised by the company over the claimant - Whether it constituted a master servant relationship - Effect of - Whether the court had jurisdiction to hear the matter - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Ruth Mark Mark Bajanik Das v. Tang Ling Shopping Centre Sdn Bhd
(Fredrick Indran XA Nicholas) [2009] 2 ILR 387

Procedure - Action - Matter struck off - Reinstatement action filed - Reasons adduced for the same - Whether justified reinstatement - Effect of - Industrial Relations Act 1967, s. 29(g)
Khairul Annuar Abdul Aziz v. Commerce Dot Com Sdn Bhd
(Franklin Goonting) [2009] 2 ILR 363

Procedure - Action - Matter struck off - Reinstatement action filed - Whether there had been inordinate delay in filing application - 6 months - Reasons adduced for the same - Whether justified reinstatement - Effect of - Industrial Relations Act 1967, s. 29(g)
Khairul Annuar Abdul Aziz v. Commerce Dot Com Sdn Bhd
(Franklin Goonting) [2009] 2 ILR 363

Remedies - Compensation awarded - Determination of - Industrial Relations Act 1967
Ruth Mark Mark Bajanik Das v. Tang Ling Shopping Centre Sdn Bhd
(Fredrick Indran XA Nicholas) [2009] 2 ILR 387

Employment - Suspension - Bank employee - Suspended by disciplinary committee based on common law rights and remedies - Lack of specific disciplinary regulations - Whether committee empowered to mete out punishment in absence of disciplinary regulations - Whether reliance on common law justified - Whether warning issued to employee proper - Bank Pertanian Malaysia Act 1969, s. 38A
Bank Pertanian Malaysia v. Ahmad Zaki Ismail
Nik Hashim FCJ, Abdul Aziz Mohamad FCJ, Hashim Yusoff FCJ [2009] 2 ILR 241

Termination simplicitor - No reasons adduced for claimant’s termination - Claimant terminated based on clause in contract - Whether recognized in Malaysia - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Raja Izat Raja Ibrahim v. Peremba Construction Sdn Bhd
(Abdul Aziz Khalidin) [2009] 2 ILR 405

Compensation - Backwages - Determination of - Encompassed commissions which were variable - How calculated - Principles to be followed - Industrial Relations Act 1967
Kovil Sri Muthu Mariamman & Ors v. Samugam Munusamy
(Mohd Amin Firdaus Abdullah) [2009] 2 ILR 257

Compensation - Determination of - Fixed term contract - How calculated - Principles to be followed - Industrial Relations Act 1967
Raja Izat Raja Ibrahim v. Peremba Construction Sdn Bhd
(Abdul Aziz Khalidin) [2009] 2 ILR 405

CASE OF THE WEEK

KESATUAN PEKERJA-PEKERJA PERKILANGAN PERUSAHAAN MAKANAN v. KOPERASI NELAYAN NEGERI TERENGGANU BHD

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