ILR Bulletin, Issue 2009, Vol 07
August 2009

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INDUSTRIAL LAW REPORTS ISSUE 7 of 2009

AWARDS REPORTED

SUBJECT INDEX

ADMINISTRATIVE LAW

Remedies - Certiorari, application for - To quash award of Industrial Court - Whether Industrial Court erred in law and in excess of jurisdiction
Ranhill Worley Sdn Bhd v. Franz Jozef Marie Schefman & Anor
(Lau Bee Lan J) [2009] 3 ILR 1

DISMISSAL

Breach of bank rules and policies - Misappropriation of bank funds - Claimant explaining misconduct - Bank carrying out investigations - Whether bank had proven the misconduct against the claimant - Effect of - Job description of the claimant - Effect of - Whether the bank had been right in dismissing the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Abdul Aziz Lome v. Bumiputra-Commerce Bank Berhad
(Haji Sulaiman Ismail) [2009] 3 ILR 90

Breach of bank rules and policies - Misappropriation of bank funds - Claimant not denying the misconduct - Whether claimant had breached relationship of mutual trust and confidence reposed in him by the bank - Claimant following superior’s orders - Superior subsequently dismissed by the bank - Effect of - Whether the claimant had gained financially - Effect of - Whether the misconduct had been proven against the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Abdul Aziz Lome v. Bumiputra-Commerce Bank Berhad
(Haji Sulaiman Ismail) [2009] 3 ILR 90

Breach of bank rules and policies - Misappropriation of bank funds - Claimant found guilty by panel of Domestic Inquiry - Effect of - No police report lodged by the bank - Effect of - Whether decision of panel had been correctly arrived at - Whether all relevant considerations had been taken into account in making a decision to dismiss the claimant - Effect of - Claimant’s past clean record with the bank - Whether it had been material - Claimant staying back to face the charges and defend himself at the Domestic Inquiry - Effect of - Indication of - Whether punishment of dismissal meted out against the claimant had been too harsh - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & 30(5)
Abdul Aziz Lome v. Bumiputra-Commerce Bank Berhad
(Haji Sulaiman Ismail) [2009] 3 ILR 90

Breach of company rules and policies - Breach of fiduciary duties - Claimant a shareholder and director in a company carrying on a similar business with her employer - Whether it had constituted a misconduct - Whether her employer had been aware - Whether her employer had issued out a prohibition - Whether the claimant had been aware of the prohibition - Position held by the claimant in the respondent company - Effect of - Respondent company carrying out investigations - Whether respondent company had proven the misconduct against the claimant - Effect of - Whether respondent company had been right in dismissing the claimant - Effect of - Whether the respondent company had done what a reasonable employer would have done - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Northern Elevator Berhad v. Chin Mike Ching
(Mohd Amin Firdaus Abdullah) [2009] 3 ILR 129

Breach of company rules and policies - Breach of fiduciary duties - Claimant a shareholder and director in a company carrying on a similar business as her employer for many years - Whether her employer had been aware - Whether it had constituted a misconduct - Whether her employer had condoned the misconduct - Lapse of 3 months between the time employer found out and disciplinary action being taken against the claimant - Reasons for the delay - Whether acceptable - Effect of - Whether the respondent company had been right in dismissing the claimant - Effect of - Whether the respondent company had done what a reasonable employer would have done - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Northern Elevator Berhad v. Chin Mike Ching
(Mohd Amin Firdaus Abdullah) [2009] 3 ILR 129

Breach of company rules and policies - Breach of fiduciary duties - Admission - Claimant taking a personal loan - Not following procedures - Whether he had been aware of the procedures - Position held by the claimant in the respondent company - Whether he ought to have known - Effect of - Whether it had been a willful disregard for procedure - 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)
Barudi Ak Linggong v. Malaysian Shipping Agencies (Sarawak) Sdn Bhd
(Muniandy Kannyappan) [2009] 3 ILR 165

Breach of company rules and policies - Breach of fiduciary duties - Claimant approving staff loans without proper authority - Admission by the claimant - Whether his actions had been a breach of the entrustment of company funds - Position held by the claimant - His functions - 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)
Barudi Ak Linggong v. Malaysian Shipping Agencies (Sarawak) Sdn Bhd
(Muniandy Kannyappan) [2009] 3 ILR 165

Breach of company rules and policies - Gambling - Criminal conduct - Test for determining whether it had been a misconduct - Whether satisfied by the company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mahkota Technologies Sdn Bhd v. Munusamy M Nadesan & Ors
(Soo Ai Lin) [2009] 3 ILR 117

Breach of company rules and policies - Gambling - Evidence adduced by the company - CCTV footage - Only showing arrest of the claimants - Actual act of gambling not shown - Effect of - Whether there had been merit to the claimants allegations that CCTV footage had been tampered with - Claimants not disputing company witnesses testimony - Effect of - Whether the company had reasonably entertained the belief that the claimants had been gambling - Whether it had been justified - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Mahkota Technologies Sdn Bhd v. Munusamy M Nadesan & Ors
(Soo Ai Lin) [2009] 3 ILR 117

Breach of company rules and policies - Gambling - Whether the punishment of dismissal had been too harsh - Positions held by the claimants in the company - Whether their indulgence in criminal activities during working hours had constituted a misconduct serious enough to warrant their dismissal - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Mahkota Technologies Sdn Bhd v. Munusamy M Nadesan & Ors
(Soo Ai Lin) [2009] 3 ILR 117

Breach of company rules and policies - Theft - Claimant admitting to misconduct - Company carrying out investigations - Whether company had proven the misconduct against the claimant - Effect of - Job description of the claimant - Claimant issuing out tickets under third party names - Whether it had constituted a misconduct - Effect of - Whether the company had been right in dismissing the claimant - Effect of - Whether the company had done what a reasonable employer would have done - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Sistem Penerbangan Malaysia (MAS) v. Rokiah Juhari & Ors
(Khadijah Mahmud) [2009] 3 ILR 103

Breach of company rules and policies - Theft - Missing cash from ATM machines - Company carrying out investigations - Outcome of investigation - Whether company had proven the misconduct against the claimants - Effect of - Whether the company had been right in dismissing the claimants - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Shaiful Nizam Abdul Kadir & Ors v. MEPS Currency Management Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2009] 3 ILR 182

Breach of company rules and policies - Theft - What constitutes theft in industrial adjudication - Whether the criteria had been met - Effect of - Whether the misconduct had been proven by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Shaiful Nizam Abdul Kadir & Ors v. MEPS Currency Management Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2009] 3 ILR 182

Constructive dismissal - Claimant’s immediate superior accused of sexual harassment - Whether proven by claimant - Evidence adduced by the claimant - Whether her evidence had been corroborated - Effect of - 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)
Yasmin Norhazleena Bahari Md Noor v. Institut Kefahaman Islam Malaysia
(Franklin Goonting) [2009] 3 ILR 75

Constructive dismissal - Claimant resigning - Respondent accepting her resignation and communicating acceptance to her - Claimant subsequently retracting her resignation and giving second resignation letter - Effect of - Whether second resignation letter had been valid in law - Effect of - Whether dismissal with just cause and excuse - Industrial Relations Act 1967
Yasmin Norhazleena Bahari Md Noor v. Institut Kefahaman Islam Malaysia
(Franklin Goonting) [2009] 3 ILR 75

Constructive dismissal - Date stated in Minister’s reference is date of second resignation letter - Second resignation letter not valid in law - Effect of - Whether claimant’s claim for constructive dismissal had been brought properly - Effect of - Whether dismissal with just cause and excuse - Industrial Relations Act 1967
Yasmin Norhazleena Bahari Md Noor v. Institut Kefahaman Islam Malaysia
(Franklin Goonting) [2009] 3 ILR 75

Constructive dismissal - Sexual harassment - SMS text messages - Handwritten - Quality of evidence - What the claimant should have done - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(1) & 20(3)
Yasmin Norhazleena Bahari Md Noor v. Institut Kefahaman Islam Malaysia
(Franklin Goonting) [2009] 3 ILR 75

Constructive dismissal - Transfer - Whether claimants could be transferred - Whether they had suffered any loss of service or seniority - Effect of - Claimants jobs - Company offering them Income Guaranteed Scheme for a short while - Effect of - Intention of the company - 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)
Razali Abu Bakar v. Stanson Marketing Sdn Bhd & Another Case
(Amelia Tee Hong Geok Abdullah) [2009] 3 ILR 15

Constructive dismissal - Transfer - Whether claimants transfers had been bona fide - Whether it had been part of the company’s expansion plans - Effect of - Claimants questioning rationale of their transfers - Whether claimants had adduced any evidence to corroborate their allegations that their transfers had been mala fide - 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)
Razali Abu Bakar v. Stanson Marketing Sdn Bhd & Another Case
(Amelia Tee Hong Geok Abdullah) [2009] 3 ILR 15

Constructive dismissal - Transfer - Claimants transferred out - Claimants part of union – Whether the company had knowledge of it - Whether their transfers had been part of a "union busting" exercise - Whether proven by claimants - 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)
Razali Abu Bakar v. Stanson Marketing Sdn Bhd & Another Case
(Amelia Tee Hong Geok Abdullah) [2009] 3 ILR 15

Constructive dismissal - Transfer - Claimants appealing against transfers - Unsuccessful - Contents of appeal letters - Whether it had been prepared with the assistance of others - 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)
Razali Abu Bakar v. Stanson Marketing Sdn Bhd & Another Case
(Amelia Tee Hong Geok Abdullah) [2009] 3 ILR 15

Retrenchment - Reorganization - Bank outsourcing ITD department to another company - All existing employees in ITD offered employment with new company - Letters of termination issued accordingly - All employees accepting except one - Effect of - Whether there was any mala fide intention on the part of the bank - Whether the reorganization had been done with a bona fide intention - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mohd Ruslan Mohd Yusof & 24 Ors v. Malayan Banking Berhad
(Fredrick Indran XA Nicholas) [2009] 3 ILR 51

Retrenchment - Reorganization - Bank outsourcing ITD department - Whether a legitimate managerial prerogative - Employees offered employment with new company - One employee declining - Effect of - Whether managerial prerogative could disregard security of tenure - Contents of letter of employment - Whether the bank had complied with the terms and conditions of the letter of offer - Effect of - What the bank should have done - Whether the bank’s actions had been bona fide - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Mohd Ruslan Mohd Yusof & 24 Ors v. Malayan Banking Berhad
(Fredrick Indran XA Nicholas) [2009] 3 ILR 51

DOMESTIC INQUIRY

Absence of - Whether it had been fatal to the company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Sistem Penerbangan Malaysia (MAS) v. Rokiah Juhari & Ors
(Khadijah Mahmud) [2009] 3 ILR 103

Procedural impropriety - Finding of guilt by enquiry - Punishment meted out - Claimant not informed of appeal and review process - Intention of the appeals process - Part of company’s disciplinary procedures - Effect of - Whether rules of natural justice had been breached - Effect of - Whether the company had come to court with clean hands - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Barudi Ak Linggong v. Malaysian Shipping Agencies (Sarawak) Sdn Bhd
(Muniandy Kannyappan) [2009] 3 ILR 165

Procedural impropriety - Prosecuting officer also sitting as panel member of the Domestic Inquiry - Whether that had been right - Effect of - Whether there had been a likelihood of bias - Whether it had constituted a flaw in the Domestic Inquiry proceedings - 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)
Mahkota Technologies Sdn Bhd v. Munusamy M Nadesan & Ors
(Soo Ai Lin) [2009] 3 ILR 117

Procedural impropriety - No indication as to who had been the prosecutor - No information as to the functions of the panel members - Whether it had been fatal to the company - Effect of - Whether it had nullified the inquiry proceedings - Whether rules of natural justice had been complied with - Whether element of bias had existed - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Northern Elevator Berhad v. Chin Mike Ching
(Mohd Amin Firdaus Abdullah) [2009] 3 ILR 129

Procedural impropriety - No charge sheet given to the claimant - Whether it had been a mandatory requirement - Effect of - Whether the claimant had been aware of the charges brought against her - Whether she had been given a chance to reply to the charges - Position of the claimant in the company - Effect of - Whether a prima facie case had been made out against her - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Northern Elevator Berhad v. Chin Mike Ching
(Mohd Amin Firdaus Abdullah) [2009] 3 ILR 129

EVIDENCE

Admissions - Claimant admitting to the misconduct - Claimant alleging that he had been under duress to admit to the misconduct - Effect of - Whether his admission had been procured under duress - Whether duress proven by the claimant - Effect of - Outcome of company’s investigations - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3) & Evidence Act 1950, ss. 24 and 114(g)
Sistem Penerbangan Malaysia (MAS) v. Rokiah Juhari & Ors
(Khadijah Mahmud) [2009] 3 ILR 103

Documentary evidence - Inquiry notes - Whether had been accurate - Whether rules of natural justice had been complied with - Effect of - Whether a prima facie case had been made out against the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Northern Elevator Berhad v. Chin Mike Ching
(Mohd Amin Firdaus Abdullah) [2009] 3 ILR 129

Documentary evidence - Respondent’s documents - Whether the documents had belonged to the claimant - Whether legally obtained - Whether common law position should apply - Effect of - Claimant seeking to admit - What steps the claimant should have taken - Effect of - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Sugunasegari P S Suppiah v. SAP Malaysia Sdn Bhd
(Franklin Goonting) [2009] 3 ILR 47

INDUSTRIAL COURT

Jurisdiction - Workman - Whether the claimant had been a workman within the ambit of the Industrial Relations Act 1967 - Position held by claimant - Effect of - Claimant subsequently buying up 4 million issued and paid-up shares in the wholly owned subsidiary company of employer - Effect of - Whether the claimant’s capacity as a workman had changed - Contents of Sale of Shares Agreement - Effect of - Whether the Industrial Court had jurisdiction to hear the matter - Effect of -Whether dismissal had been without just cause and excuse - Industrial Relations Act 1967, s. 20(1)
Omar Saad v. KFC Holdings (Malaysia) Bhd
(Fredrick Indran XA Nicholas) [2009] 3 ILR 113

Procedure - Pleadings - Defective charge - Matter not pleaded - Whether company witnesses could be cross-examined on matters not pleaded - Factors to consider - Whether the interests of justice would be compromised - Effect of - Powers of the Court - Industrial Relations Act 1967, ss. 29(d) & 30(5)
Malayan Banking Berhad v. Mohd Naim Abdullah & Another Case
(Gulam Muhiaddeen Abdul Aziz) [2009] 3 ILR 156

Procedure - Pleadings - Negligence not ground for termination in termination letters - Brought up during the course of the hearing - Effect of - Whether should be allowed - Whether it had been an afterthought - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Shaiful Nizam Abdul Kadir & Ors v. MEPS Currency Management Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2009] 3 ILR 182

LABOUR LAW

Industrial Court - Remedies - Certiorari, application for - Postponement for applicant to call crucial witness disallowed by Industrial Court - Whether learned chairman acted fairly - Backwages for unexpired period of fixed term contract - Whether logical and reasonable - Whether Industrial Court erred in law and in excess of jurisdiction
Ranhill Worley Sdn Bhd v. Franz Jozef Marie Schefman & Anor
(Lau Bee Lan J) [2009] 3 ILR 1

INDEKS PERKARA

KETERANGAN

Saksi - Keterangan saksi - Pemeriksaan balas - Tujuan - YM gagal untuk memeriksa balas keterangan saksi responden - Sama ada itu bermaksud YM menerima keterangan saksi responden - Kesannya - Apa yang harus dilakukan dalam keadaan sedemikian - Sama ada YM dibuang kerja secara lisan - Sama ada pembuangan kerja adalah tanpa alasan atau sebab yang adil - Akta Mahkamah Perusahaan 1967, s. 20(3)
Rira Bina Sdn Bhd v. Patrick Moya
(Kamaruzaman Ab Jalil) [2009] 3 ILR 198

PEMBUANGAN KERJA

Pemecatan secara konstruktif - Sama ada dibuktikan oleh YM - Sama ada responden telah mengadakan perundingan dengan YM - Sama ada pertemuan YM dengan pihak responden diadakan di dalam keadaan yang mesra - Kesannya - YM menafikan menulis surat perletakan jawatan dan membuat laporan polis - Keterangan saksi responden - Kesannya - Sama ada terdapat penamatan kerja secara lisan oleh responden - Sama ada dibuktikan oleh responden - Sama ada tindakan responden merupakan perlanggaran yang melibatkan asas kontrak antara mereka - Kesannya - Sama ada pembuangan kerja adalah tanpa alasan atau sebab yang adil - Akta Mahkamah Perusahaan 1967, s. 20(3)
Rira Bina Sdn Bhd v. Patrick Moya
(Kamaruzaman Ab Jalil) [2009] 3 ILR 198

Pemecatan secara konstruktif - Sama ada dibuktikan oleh YM - YM menerima gaji 3 bulan - Kesannya - Sama ada tindakan YM tersebut menunjukkan kesukarelawannya untuk meletak jawatan - Kesannya - Sama ada responden menunjukan niat untuk masih lagi terikat dengan kontrak perkhidmatan - Kesannya - Sama ada pembuangan kerja adalah tanpa alasan atau sebab yang adil - Akta Mahkamah Perusahaan 1967, s. 20(3)
Rira Bina Sdn Bhd v. Patrick Moya
(Kamaruzaman Ab Jalil) [2009] 3 ILR 198

Pemecatan secara konstruktif - Sama ada dibuktikan oleh YM - Terma-terma kontrak YM - Terma asasi - Sama ada menjadi intipati kepada kontrak perkhidmatan YM - Kesannya - YM tidak mempunyai masalah bekerja dengan responden - Kesannya - Sama ada responden menunjukan niat untuk masih lagi terikat dengan kontrak perkhidmatan - Kesannya - Sama ada pembuangan kerja adalah tanpa alasan atau sebab yang adil - Akta Mahkamah Perusahaan 1967, s. 20(3)
Rira Bina Sdn Bhd v. Patrick Moya
(Kamaruzaman Ab Jalil) [2009] 3 ILR 198

Pemecatan secara konstruktif - Sama ada dibuktikan oleh YM - YM mengambil cuti sehari - Cuti YM diluluskan oleh responden - Sama ada cuti YM telah merencatkan operasi responden - Kesannya - Sama ada tindakan YM mengambil cuti tersebut mewajarkannya dibuang kerja - Kesannya - Sama ada responden menunjukan niat untuk masih lagi terikat dengan kontrak perkhidmatan - Kesannya - Sama ada pembuangan kerja adalah tanpa alasan atau sebab yang adil - Akta Mahkamah Perusahaan 1967, s. 20(3)
Rira Bina Sdn Bhd v. Patrick Moya
(Kamaruzaman Ab Jalil) [2009] 3 ILR 198

CASE OF THE WEEK

LIM SEE WAI v. ENGLAND OPTICAL GROUP (M) SDN BHD

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