ILR Bulletin, Issue 2009, Vol 06
July 2009

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INDUSTRIAL LAW REPORTS ISSUE 6 of 2009

AWARDS REPORTED

SUBJECT INDEX

Dismissal from service - Disciplinary proceedings - Letter communicating decision to dismiss contradicted earlier show cause letter - Whether disciplinary proceedings rendered flawed
Mohd Daud Mahmod v. Suruhanjaya Perkhidmatan Awam, Malaysia & Anor
(Zaleha Zahari JCA, Hasan Lah JCA & Sulaiman Daud JCA) [2009] 2 ILR 482

Dismissal from service - Disciplinary proceedings - Whether infringement of GO 23 of Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980 - Whether opportunity to mitigate given - Whether reasons for dismissal should be made known
Mohd Daud Mahmod v. Suruhanjaya Perkhidmatan Awam, Malaysia & Anor
(Zaleha Zahari JCA, Hasan Lah JCA & Sulaiman Daud JCA) [2009] 2 ILR 482

Exercise of administrative powers - Domestic discipline - Condonation - One year delay in charging public servant with disciplinary offences - Whether such delay evidenced condonation of public servant’s offences - Whether delay a ground for declaring disciplinary action null and void - Whether delay a ground for setting aside order of dismissal
Ghanasekaran Krishnasamy v. Suruhanjaya Perkhidmatan Awam Malaysia & Anor
(Gopal Sri Ram JCA, Mohd Ghazali Yusoff JCA & Tengku Baharudin Shah JCA) [2009] 2 ILR 457

Exercise of administrative powers - Domestic discipline - Public servant admitting to disciplinary offences - Whether public servant had a right to be heard in mitigation before Disciplinary Board made decision - Whether public servant ought to be allowed application to amend writ for unjust dismissal to plead no opportunity to mitigate before punishment - Whether such amendment an exercise in futility - Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980, GO 26
Ghanasekaran Krishnasamy v. Suruhanjaya Perkhidmatan Awam Malaysia & Anor
(Gopal Sri Ram JCA, Mohd Ghazali Yusoff JCA & Tengku Baharudin Shah JCA) [2009] 2 ILR 457

Remedies - Certiorari - Consumer Claims Tribunal - Application for judicial review to quash award - Rules of the High Court 1980, O. 53 - Whether there was evidence as good grounds to support review - Whether Tribunal fallen foul of acceptable standards of administrative law and justice - Whether Tribunal transgressed principles of control - Whether application dismissed
Sheila Sangar v. Proton Edar Sdn Bhd & Anor
(Mohamad Ariff Yusof JC) [2009] 2 ILR 489

Appeal - Appeal to Court of Appeal - Value of subject matter of claim below RM250,000 - Matter under appeal immensely important and with far-reaching consequences - Whether Court of Appeal ought to grant leave to appellant to appeal
Golden Hope Plantations (Peninsular) Sdn Bhd (Ladang Sungei Senarut) v. Saraswathy Kathan
(Low Hop Bing JCA, Abu Samah Nordin JCA & Sulaiman Daud JCA) [2009] 2 ILR 468

Terms and conditions - Claimant commencing employment with one company and terminated by another - First company bought over by second company - Whether there had been a continuation of service clause in the claimants contract of employment - No written term to that effect - Effect of - Determination of how long the claimant had been in the company’s employ - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Hoe Lian Trading Sdn Bhd v. Term Siok Kim
(Mariah Ahmad) [2009] 2 ILR 519

Public servants - Disciplinary proceedings - Condonation - One year delay in charging public servant with disciplinary offences - Whether such delay evidenced condonation of public servant’s offences - Whether delay a ground for declaring disciplinary action null and void - Whether delay a ground for setting aside order of dismissal
Ghanasekaran Krishnasamy v. Suruhanjaya Perkhidmatan Awam Malaysia & Anor
(Gopal Sri Ram JCA, Mohd Ghazali Yusoff JCA & Tengku Baharudin Shah JCA) [2009] 2 ILR 457

Public servants - Disciplinary proceedings - Whether public servant had a right to be heard in mitigation before punishment - Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980, GO 26
Ghanasekaran Krishnasamy v. Suruhanjaya Perkhidmatan Awam Malaysia & Anor
(Gopal Sri Ram JCA, Mohd Ghazali Yusoff JCA & Tengku Baharudin Shah JCA) [2009] 2 ILR 457

Breach of company rules and policies - Alleged cheating by the company - Company taken over - Company issuing termination letter - Subsequently first termination letter retracted and second termination letter issued - Reasons adduced by the company - Whether acceptable - All the staff signing except the claimant and another person - Reasons adduced by the claimant for not signing - Whether it had been justified - Whether the claimant’s actions had been reasonable - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Leong Nyuk Mui v. Everise Ventures Sdn Bhd
(P Iruthayaraj D Pappusamy) [2009] 2 ILR 557

Breach of company rules and policies - Cheating - Claimant’s contract of employment providing for 3 months notice in lieu of salary for terminations - Company taken over - Claimant offered continued employment - Claimant accepting - Whether claimant had been terminated - Company not complying with notice period - Effect of - Whether company had cheated the claimant of her salary in lieu of notice - Circumstances under which the resignation/termination had taken place - Whether company’s actions had been reasonable - Effect of - Whether allegation of cheating proven by the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Leong Nyuk Mui v. Everise Ventures Sdn Bhd
(P Iruthayaraj D Pappusamy) [2009] 2 ILR 557

Breach of company rules and policies - Claimant alleging cheating by company - Whether proven by the claimant - Effect of - Claimant failing to turn up for work - Reasons for the same - Whether reasonable and responsible - What the claimant should have done - Effect of - Whether the claimant had resigned or been terminated - How to determine - Whether there had been an element of coercion or force used by the company on the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Leong Nyuk Mui v. Everise Ventures Sdn Bhd
(P Iruthayaraj D Pappusamy) [2009] 2 ILR 557

Breach of company rules and policies - Claimant implementing a program without top management’s approval - Consequences of the program - Whether it had been detrimental to the company - Whether functions of the Human Resource Department encroached - Effect of - Job description of the claimant - Intention of the claimant - Whether he had been acting within his authority - Whether it had constituted a misconduct - Effect of - Whether the company had proven the misconduct against the claimant - Whether company had been right in dismissing the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Lai Chung Mun v. Silterra Malaysia Sdn Bhd
(Mohd Amin Firdaus Abdullah) [2009] 2 ILR 582

Breach of company rules and policies - Dishonesty - Claimant using his Staff Travel Authority for the benefit of a third party - Whether the claimant had been directly or indirectly involved - Effect of - Whether a dishonest intent had been established - Position held by the claimant in the company - Whether the company had succeeded in establishing the misconduct against the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mohamad Daud v. Malaysian Airline System Berhad
(P Iruthayaraj D Pappusamy) [2009] 2 ILR 664

Breach of company rules and policies - Dishonesty - Claimant using his Staff Travel Authority for the benefit of a third party - Effect of - Whether the claimant’s actions had deprived the company from earning maximum revenue from a commercial transaction - Whether the charge had been established by the company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mohamad Daud v. Malaysian Airline System Berhad
(P Iruthayaraj D Pappusamy) [2009] 2 ILR 664

Breach of company rules and policies - Dishonesty - Claimant making a false declaration in the Application form - Effect of - Whether the claimant had been aware of the repercussions of his actions - Whether the claimant’s actions had been reasonable - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mohamad Daud v. Malaysian Airline System Berhad
(P Iruthayaraj D Pappusamy) [2009] 2 ILR 664

Breach of company rules and policies - Negligence - Claimant’s position in the company - Duties of the claimant - Whether irregular payments had been made to a third company - Whether third company had been dormant - Effect of - Whether claimant had carried out his duties diligently - Whether irregularities could have been detected if he had been diligent in his duties - Effect of - Whether claimant had been negligent - Allegations levelled against the claimant - Whether the respondent had managed to establish the charge against the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 2 & 20(3)
Zakaria Mohd Noor v. Percetakan Nasional Malaysia Berhad
(Chew Soo Ho) [2009] 2 ILR 638

Constructive dismissal - Relocation - Whether claimants could be transferred - Claimants claiming that they only contracted to work at a certain address - Whether could be accepted - Effect of - Documents of company - Whether had reflected other addresses - Effect of - Whether there had been a fundamental breach of terms of employment by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Umi Kalsom Mat Kassim & Ors v. M-Pol Rubber Products Sdn Bhd
(Mohd Amin Firdaus Abdullah) [2009] 2 ILR 602

Constructive dismissal - Relocation - Whether claimants had been entitled to termination benefits - Whether the plant had been permanently closed down - Effect of - Whether the company had breached the terms of the Collective Agreement - Conduct of the company - Effect of - Whether there had been a fundamental breach of terms of employment by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Umi Kalsom Mat Kassim & Ors v. M-Pol Rubber Products Sdn Bhd
(Mohd Amin Firdaus Abdullah) [2009] 2 ILR 602

Constructive dismissal - Relocation - Whether the claimants had been transferred out or relocated - Differences between the two - Effect of - Whether there had been a fundamental breach of terms of employment by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Umi Kalsom Mat Kassim & Ors v. M-Pol Rubber Products Sdn Bhd
(Mohd Amin Firdaus Abdullah) [2009] 2 ILR 602

Constructive dismissal - Relocation - Claimants had wanted termination benefits as opposed to compensation and backwages - Whether their claims had been rightly founded - Effect of - Whether there had been a fundamental breach of terms of employment by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Umi Kalsom Mat Kassim & Ors v. M-Pol Rubber Products Sdn Bhd
(Mohd Amin Firdaus Abdullah) [2009] 2 ILR 602

Insubordination - Claimant complying with first directive and stating nothing to add to that when given second directive - Effect of - Whether claimant’s indifference had constituted an insubordination - No reasons advanced by claimant for his inability to comply with second directive - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967
Zakaria Mohd Noor v. Percetakan Nasional Malaysia Berhad
(Chew Soo Ho) [2009] 2 ILR 638

Misconduct - Irregular payments made to dormant company - Whether claimant had been issued a warning letter - Whether the claimant had continued making the payments after receiving the warning letter - Timeline of the payments and the warning letter - Effect of - Whether the respondent had proven the misconduct against the claimant - Whether the claimant had neglected his duties - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Zakaria Mohd Noor v. Percetakan Nasional Malaysia Berhad
(Chew Soo Ho) [2009] 2 ILR 638

Misconduct - Claimant charged in his capacity as the Senior Financial and Administration Controller and not as the Internal Auditor - Claimant holding both positions in the company at one time or another - Responsibilities of both positions - Effect of - Whether the charge had been proven against the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Zakaria Mohd Noor v. Percetakan Nasional Malaysia Berhad
(Chew Soo Ho) [2009] 2 ILR 638

Performance - Unsatisfactory performance - Whether proven by the company - Claimant not given any warnings or counselling - Whether they had been necessary - Position held by the claimant - Effect of - Whether claimant had managed to prove mala fide intent on the part of the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Azmi & Co Building Services Sdn Bhd v. Krishnasamy Alagesan
(Eddie Yeo Soon Chye) [2009] 2 ILR 626

Performance - Unsatisfactory performance - Who had lodged the complaint - Whether complaint had been lodged by the respondent - Effect of - Whether proven by the respondent - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Azmi & Co Building Services Sdn Bhd v. Krishnasamy Alagesan
(Eddie Yeo Soon Chye) [2009] 2 ILR 626

Probationer - Probationer claimant - Claimant terminated at expiration of probationary period - Non-performance cited as the reason - No warnings issued to the claimant nor counselling given to him - Whether company’s decision had been bona fide - Effect of - Whether proven by the company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Azmi & Co Building Services Sdn Bhd v. Krishnasamy Alagesan
(Eddie Yeo Soon Chye) [2009] 2 ILR 626

Retrenchment - Redundancy - Whether company had faced a financial slowdown - No reasons adduced - Effect of - Whether the company’s actions were bona fide - Whether a redundancy situation had existed - Whether proven by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Hoe Lian Trading Sdn Bhd v. Term Siok Kim
(Mariah Ahmad) [2009] 2 ILR 519

Procedural impropriety - Charge - Framing and contents of - Whether defective - Effect of - Intended purpose of the charge - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mohamad Daud v. Malaysian Airline System Berhad
(P Iruthayaraj D Pappusamy) [2009] 2 ILR 664

Estoppel - Estoppel by conduct - Employer initially paying temporarily disabled employee for untaken annual leave - Employer subsequently refusing to pay employee for following year’s untaken annual leave - Whether employer ought to be estopped from denying employee such payment
Golden Hope Plantations (Peninsular) Sdn Bhd (Ladang Sungei Senarut) v. Saraswathy Kathan
(Low Hop Bing JCA, Abu Samah Nordin JCA & Sulaiman Daud JCA) [2009] 2 ILR 468

Documentary evidence - Domestic inquiry - Inquiry notes - Whether a prima facie case had been established - Effect of - Role of panel members - Whether the panel members had usurped the role of prosecutor - Whether the rules of natural justice had been complied with - Effect of - Whether the inquiry proceedings had been vitiated - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Lai Chung Mun v. Silterra Malaysia Sdn Bhd
(Mohd Amin Firdaus Abdullah) [2009] 2 ILR 582

Witness - Conflicting evidence of claimant and company - Whose evidence preferable - Who the benefit of doubt should be given to - Effect of - Industrial Relations Act 1967
Hoe Lian Trading Sdn Bhd v. Term Siok Kim
(Mariah Ahmad) [2009] 2 ILR 519

Procedure - Action - Recusal application by the company - Reasons for the same - Whether there had been a likelihood of apparent bias - Effect of - Powers of the court - Factors to consider - Effect of - Whether it was in the interests of justice to grant the recusal application - Industrial Relations Act 1967, ss. 29(g) & 30(5)
Mohamed Razally Abu Hassan v. Nepline Berhad
(Yamuna Menon) [2009] 2 ILR 531

Procedure - Action - Matter struck off – No formal application for reinstatement filed - Claimant present at hearing of matter - Company counsel not objecting to reinstatement of claimant - Effect of - Requirement for a formal application would delay proceedings - Whether could be dispensed with - Effect of - Whether reinstatement should be allowed - Industrial Relations Act 1967, s. 29(g)
Umi Kalsom Mat Kassim & Ors v. M-Pol Rubber Products Sdn Bhd
(Mohd Amin Firdaus Abdullah) [2009] 2 ILR 602

Procedure - Pleadings - Failure to plead - Effect of - Whether it could be taken into consideration - Industrial Relations Act 1967
Leong Nyuk Mui v. Everise Ventures Sdn Bhd
(P Iruthayaraj D Pappusamy) [2009] 2 ILR 557

Procedure - Pleadings - Failure to rebut averment - Effect of - Claimant failing to rebut respondent’s evidence until submission stage - Whether that had been proper - Whether claimant’s evidence should be accepted - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Zakaria Mohd Noor v. Percetakan Nasional Malaysia Berhad
(Chew Soo Ho) [2009] 2 ILR 638

Remedies - Compensation - How calculated - Factors to consider - Multiplicand used - Effect of - Industrial Relations Act 1967
Alan Douglas Mclean v. Mont’ Kiara International School Sdn Bhd
(Fredrick Indran XA Nicholas) [2009] 2 ILR 546

Remedies - Compensation in lieu of reinstatement - Expatriate claimant - Whether there had been a legitimate expectation to an indefinite length of employment - Effect of - Whether as an expatriate he had only been entitled to the balance duration of his fixed-term contract - Effect of - Industrial Relations Act 1967
Alan Douglas Mclean v. Mont’ Kiara International School Sdn Bhd
(Fredrick Indran XA Nicholas) [2009] 2 ILR 546

Remedies - Reinstatement - Whether appropriate - Expatriate claimant - Factors to consider - Effect of - Industrial Relations Act 1967
Alan Douglas Mclean v. Mont’ Kiara International School Sdn Bhd
(Fredrick Indran XA Nicholas) [2009] 2 ILR 546

Employment - Disablement benefits - Whether temporarily disabled employee entitled to receive disablement benefits under Employees’ Social Security Act 1969 - Whether temporarily disabled employee receiving disablement benefits under the Employees’ Social Security Act 1969 entitled to be paid for untaken annual leave - Employees’ Social Security Act 1969, s. 44
Golden Hope Plantations (Peninsular) Sdn Bhd (Ladang Sungei Senarut) v. Saraswathy Kathan
(Low Hop Bing JCA, Abu Samah Nordin JCA & Sulaiman Daud JCA) [2009] 2 ILR 468

Employment - Employees - Employee under temporary disablement - Whether employer prohibited from taking action against employee during employee’s period of temporary disablement - Whether temporary disablement constituted a break in service - Employees’ Social Security Act 1969, s. 53
Golden Hope Plantations (Peninsular) Sdn Bhd (Ladang Sungei Senarut) v. Saraswathy Kathan
(Low Hop Bing JCA, Abu Samah Nordin JCA & Sulaiman Daud JCA) [2009] 2 ILR 468

Employment - Employees - Rights of - Whether rights of employees safeguarded by Employment Act 1955 - Whether Employment Act 1950 allows incorporation of terms more favourable to employees in collective agreements than those terms prescribed under the Employment Act 1955 - Whether employee receiving benefits under the Employees’ Social Security Act 1969 also entitled to receive benefits under the Employment Act 1955 or under contract of employment
Golden Hope Plantations (Peninsular) Sdn Bhd (Ladang Sungei Senarut) v. Saraswathy Kathan
(Low Hop Bing JCA, Abu Samah Nordin JCA & Sulaiman Daud JCA) [2009] 2 ILR 468

Disciplinary proceedings - Procedure - Condonation - One year delay in charging public servant with disciplinary offences - Whether such delay evidenced condonation of public servant’s offences - Whether delay a ground for declaring disciplinary action null and void - Whether delay a ground for setting aside order of dismissal
Ghanasekaran Krishnasamy v. Suruhanjaya Perkhidmatan Awam Malaysia & Anor
(Gopal Sri Ram JCA, Mohd Ghazali Yusoff JCA & Tengku Baharudin Shah JCA) [2009] 2 ILR 457

Disciplinary proceedings - Procedure - Public servant not given opportunity to mitigate before Disciplinary Board made decision - Whether public servant had a right to be heard in mitigation before punishment - Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980, GO 26
Ghanasekaran Krishnasamy v. Suruhanjaya Perkhidmatan Awam Malaysia & Anor
(Gopal Sri Ram JCA, Mohd Ghazali Yusoff JCA & Tengku Baharudin Shah JCA) [2009] 2 ILR 457

Collective Agreement - Given cognizance by the Court - Collective Agreement expired - Union inviting koperasi to enter into new collective agreement - Koperasi declining - Koperasi alleging that they have no right to do so - Koperasi questioning the validity of the Collective Agreement - Effect of - Whether the koperasi could question the validity - Interpretation of articles in the Collective Agreement - Effect of - Industrial Relations Act 1967, s. 17 & Co-operative Societies Act 1933, s. 90
Kesatuan Pekerja-pekerja Perkilangan Perusahaan Makanan v. Koperasi Nelayan Negeri Terengganu Bhd
(Ong Geok Lan) [2009] 2 ILR 513

Collective Agreement - Given cognizance by court - Effect of - Whether court could create new rights and obligations - Under what circumstances - Effect of - Whether present facts justified courts interference - Industrial Relations Act, s. 30(4)
Kesatuan Kebangsaan Pekerja-pekerja Bank v. Bumiputra Commerce Bank Berhad
(Ong Geok Lan) [2009] 2 ILR 497

Collective Agreement - Interpretation of article on bonus payments - Ex gratia payments - Bank making such payments for past 10 years then suddenly ceasing - Whether employees had been entitled to it - Whether the employees had a legitimate expectation to receive it - Meaning of legitimate expectation - Whether it had constituted an existing benefit - Provisions of the Collective Agreement - Intention of the parties - Whether payments had been discretionary - Where the discretion lay - Effect of - Industrial Relations Act 1967
Kesatuan Kebangsaan Pekerja-pekerja Bank v. Bumiputra Commerce Bank Berhad
(Ong Geok Lan) [2009] 2 ILR 497

Collective Agreement - Interpretation of article on pilgrimage leave - Whether there had been discrimination between the different grades of employees - Provisions of the Collective Agreement - Effect of - Industrial Relations Act 1967
Kesatuan Kebangsaan Pekerja-pekerja Bank v. Bumiputra Commerce Bank Berhad
(Ong Geok Lan) [2009] 2 ILR 497

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