ILR Bulletin, Issue 2009, Vol 11
November 2009

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INDUSTRIAL LAW REPORTS ISSUE 11 of 2009

AWARDS REPORTED

SUBJECT INDEX

ADMINSTRATIVE LAW

Exercise of administrative powers - Judicial review - Refusal to issue motor vehicle licence - Certiorari and mandamus - Applicant blacklisted by respondents due to an outstanding summons - Whether decision to blacklist applicant and not issue him with licence unreasonable and unlawful - Road Transport Act 1987, ss. 15(1), (4), 17(1)(d) - Federal Constitution, art. 13
Leonard Lim Yaw Chiang v. Director Of Jabatan Pengangkutan Jalan Negeri Sarawak & Anor
(Abdul Aziz Rahim J)[2009] 4 ILR 250

Exercise of judicial functions - Judicial review - Appeal to set aside High Court order quashing award of Industrial Court - Failure by Industrial Court to deal with issue on jurisdiction - Whether constituted an error of law upon which judicial review may be granted - Exercise of discretion
Kumpulan Linggi Sdn Bhd (Ladang Bukit Badak) v. The National Union Of Plantation Workers
(Gopal Sri Ram JCA, Hasan Lah JCA, Jeffrey Tan J) [2009] 4 ILR 244

Remedies - Certiorari and mandamus - Refusal to issue motor vehicle licence - Applicant blacklisted by respondents due to an outstanding summons - Whether decision to blacklist applicant and not issue him with licence unreasonable and unlawful - Road Transport Act 1987, ss. 15(1), (4), 17(1)(d) - Federal Constitution, art. 13
Leonard Lim Yaw Chiang v. Director Of Jabatan Pengangkutan Jalan Negeri Sarawak & Anor
(Abdul Aziz Rahim J)[2009] 4 ILR 250

Judicial review - Judicial review proceedings - Appeal to set aside High Court order quashing award of Industrial Court - Failure by Industrial Court to deal with issue on jurisdiction - Whether constituted an error of law upon which judicial review may be granted - Exercise of discretion
Kumpulan Linggi Sdn Bhd (Ladang Bukit Badak) v. The National Union Of Plantation Workers
(Gopal Sri Ram JCA, Hasan Lah JCA, Jeffrey Tan J) [2009] 4 ILR 244

CONTRACT OF EMPLOYMENT

Terms and conditions - Term in collective agreement in conflict with term in letter of appointment in relation to the retirement age of the claimant - Claimant not a member of the union - Whether the claimant had come within the scope of the collective agreement - Effect of - Whether s. 14(3) of the Industrial Relations Act had been contravened - Factors to consider - Effect of - Whether there had been a dismissal - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 14(3), 20(3) & 30(5)
Eng Luan Chin v. Edaran Otomobil Nasional Bhd
(Mary Shakila Azariah) [2009] 4 ILR 335

Terms and conditions - Term in collective agreement in conflict with term in letter of appointment in relation to the retirement age of the claimant - Which one takes precedent - Effect of - Claimant not a member of the union - Whether the claimant had been covered by the collective agreement - Effect of - Implications of s. 17 of the Industrial Relations Act 1967 - Whether mandatory - Whether the claimant had been resigned lawfully - Effect of - Whether there had been a dismissal - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 17 & 20(3)
Eng Luan Chin v. Edaran Otomobil Nasional Bhd
(Mary Shakila Azariah) [2009] 4 ILR 335

Terms and conditions - Termination clause - Claimant terminated pursuant to terms of contract - Whether another person had taken over claimant’s functions - Explanation given by the company on the claimant’s replacement - Whether acceptable - Whether claimant’s functions had ceased to exist - Factors to consider - Effect of - Whether the company had acted mala fide - Whether the claimant had been victimized - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Saemah Abu Said v. Danzas Aei (Malaysia) Sdn Bhd
(Jalaldin Hussain) [2009] 4 ILR 396

Terms and conditions - Termination clause - Claimant terminated pursuant to terms of contract - Whether another person had taken over claimant’s functions - Explanation given by the company on the claimant’s replacement - Whether acceptable - Whether claimant’s functions had ceased to exist - Factors to consider - Effect of - Whether the company had acted mala fide - Whether the claimant had been victimized - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Saemah Abu Said v. Danzas Aei (Malaysia) Sdn Bhd
(Jalaldin Hussain) [2009] 4 ILR 396

Terms and conditions - Termination clause - Interpretation of the clause - Position held by the claimant - Duties of the claimant - Whether it had ceased to exist - Effect of - Claimant terminated pursuant to terms of contract - Claimant an implant from a different company - Whether the main contract had been terminated - Factors to consider - Whether the claimant had been properly terminated - Effect of - Whether the company’s actions were bona fide - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Saemah Abu Said v. Danzas Aei (Malaysia) Sdn Bhd
(Jalaldin Hussain) [2009] 4 ILR 396

DISMISSAL

Absenteeism - Claimant applying to off-set his annual leave with the company - Company not agreeable - Claimant not reporting for work and taking up employment elsewhere - Effect of - Whether leave had been as a matter of right or at the discretion of the company - Whether the claimant had still remained an employee of the company even whilst on leave - Whether the claimant had been in conflict with his duties towards the company - Effect of - Whether the claimant had been in breach of his duties to the company - Effect of - Whether the company had succeeded in proving the misconduct - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Bohari Sayed Mohd v. Hitachi Air Conditioning Product Sdn Bhd
(Mary Shakila Azariah) [2009] 4 ILR 425

Attendance - Lateness - Claimant’s position in the company - Whether the claimant had held a special position in the company - Whether the claimant had enjoyed flexible working hours - Factors to consider - Effect of - Claimant issued warning letters despite not being warned for late attendance before - Motive of the company in issuing the warning letters - Factors to consider - What had brought on the issuance of the warning letters - Whether the company’s management had been displeased with the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Thavake Elumalay v. Shin Eversendai Engineering (M) Sdn Bhd
(Yamuna Menon) [2009] 4 ILR 311

Breach of company rules and policies - Conflict of interest with company’s business - Claimant’s wife a partner in a business in direct competition with the company - Effect of - Non disclosure by the claimant - Claimant denying involvement - Whether it had been a breach of the company’s rules and policies - Terms and conditions of claimant’s employment - Effect of - Whether the company had proven the misconduct against the claimant - Effect of - Whether the company had been right in dismissing the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Low Ah Heng v. Cartrade Sdn Bhd
(Fredrick Indran XA Nicholas) [2009] 4 ILR 295

Breach of company rules and policies - Conflict of interest with company’s business - Position held by the claimant - Whether it had been of a fiduciary nature - Effect of - Whether the company had suffered financial loss - Whether that had been a relevant consideration - Effect of - Potential mischief that could have been caused by the claimant’s actions - Whether the company had proven the misconduct against the claimant - Effect of - Whether the company had been too harsh in dismissing the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Low Ah Heng v. Cartrade Sdn Bhd
(Fredrick Indran XA Nicholas) [2009] 4 ILR 295

Constructive dismissal - Assault - Claimant alleging assault and battery by the company’s representatives - Claimant lodging police report - Company denying assault and battery allegations - Effect of - Material differences in claimant’s testimony and police report - Implications of the same - Whether the claimant had managed to prove it against the company - Evidence tendered by the claimant - Whether had been sufficient - Effect of - Whether it had constituted a fundamental breach of terms of employment - Whether justified claimant deeming himself constructively dismissed - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Yap Soon Kee v. MJSB Resorts Sdn Bhd
(Ong Geok Lan) [2009] 4 ILR 277

Constructive dismissal - Company offering the claimant an opportunity to return to work after temporarily closing down and ceasing operations - Claimant failing to turn up for work - Company failing to pay his salary - Claimant giving notice to the company - Claimant not giving the company time to rectify the breach - Effect of - Whether the claimant had managed to establish a breach of a fundamental term of his contract of employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Abu Hasan Adam v. Koperasi Kesatuan Guru-guru Melayu Malaysia Barat Berhad
(Jalaldin Hussain) [2009] 4 ILR 346

Constructive dismissal - Company repossessing the car and deregistering claimant’s mobile phone - Reasons for the company’s actions - Whether it had been acceptable - Whether the claimant had been entitled to either or both pursuant to his terms of employment - What had his terms of employment been - Employment contract not produced by claimant - Effect of - Claimant’s actions after the company’s actions - Whether he had condoned the breach by the company and waived his right to claim constructive dismissal - Factors to consider - Effect of - Whether the claimant had managed to establish a fundamental breach of his contract of employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Abu Hasan Adam v. Koperasi Kesatuan Guru-guru Melayu Malaysia Barat Berhad
(Jalaldin Hussain) [2009] 4 ILR 346

Constructive dismissal - Status - Claimant asked to move and sit in the meeting room - Position held by the claimant in the company - Whether it had been a special position - Whether the claimant had suffered humiliation by the company’s directions for her to sit in the meeting room - Effect of - Whether it had constituted a fundamental breach of terms of employment - Whether justified claimant deeming herself constructively dismissed - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Thavake Elumalay v. Shin Eversendai Engineering (M) Sdn Bhd
(Yamuna Menon) [2009] 4 ILR 311

Constructive dismissal - Status - Claimant asked to hand over job functions to third parties - Claimant left with nothing to do - Effect of - Whether it had constituted a fundamental breach of terms of employment - Whether it had destroyed the relationship of trust and confidence between the parties - Whether justified claimant deeming herself constructively dismissed - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Thavake Elumalay v. Shin Eversendai Engineering (M) Sdn Bhd
(Yamuna Menon) [2009] 4 ILR 311

Constructive dismissal - Whether the claimant had been forced to sign the letter of pledge - Effect of - Contents of the letter of pledge - Company’s conduct - Effect of - Whether the company had indicated an intention to no longer be bound by the claimant’s contract of employment - Evidence tendered - Whether had been sufficient - Effect of - Whether it had constituted a fundamental breach of terms of employment - Whether justified claimant deeming himself constructively dismissed - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Yap Soon Kee v. MJSB Resorts Sdn Bhd
(Ong Geok Lan) [2009] 4 ILR 277

Probationer - Position held by the claimant in the company - Company disputing employing the claimant in that position - Whether the claimant had been offered employment in that position by the company - Factors to consider - Whether the claimant had been confirmed in his position - Evidence adduced by the claimant - Effect of - Determination of the claimant’s terms and conditions of service - Whether there had been a dismissal - Whether dismissal had been with just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Abu Hasan Adam v. Koperasi Kesatuan Guru-guru Melayu Malaysia Barat Berhad
(Jalaldin Hussain) [2009] 4 ILR 346

Retrenchment - Claimants retrenched - Claimants were union members - Whether their retrenchments had anything to do with the fact that they were union members - Evidence adduced by the claimants - Effect of - Whether claimants had managed to prove victimization by the respondent company - Effect of - Whether there had been a dismissal - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Vijian Paramasivam & Ors v. Sun Media Corporation Sdn Bhd
(Franklin Goonting) [2009] 4 ILR 372

Retrenchment - Claimants retrenched - Whether LIFO principles followed - Claimants parties to the Collective Agreement (‘CA’) - CA didn’t stipulate adherence to LIFO principles - Effect of - Whether the Code of Practice for Industrial Harmony had been complied with - Factors to consider - Whether claimants had been given notice of their retrenchment - Effect of - Whether there had been a dismissal - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Vijian Paramasivam & Ors v. Sun Media Corporation Sdn Bhd
(Franklin Goonting) [2009] 4 ILR 372

Retrenchment - Respondent company hit by economic crisis - Steps taken by respondent to cut costs - Whether they had been effective - Effect of - Respondent adopting a new model - What that entailed - Lots of departments closed down - Business reality - Claimants retrenched - Effect of - Whether retrenchment had been done bona fide - Whether the respondent company had succeeded in proving that the claimants’ services had been surplus to their requirements - Effect of - Whether there had been a dismissal - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, s. 20(3)
Vijian Paramasivam & Ors v. Sun Media Corporation Sdn Bhd
(Franklin Goonting) [2009] 4 ILR 372

Retrenchment - VSS scheme - Claimant contracting to it - Effect of - Claimant then accepting a job in another company - Claimant seeking to off-set his annual leave and leave the employment of the company early - Company not agreeable - Whether it had been the company’s prerogative to say no - Claimant not turning up for work - Company revoking the VSS scheme in relation to the claimant - Whether the company had been justified in doing that - Whether the company’s actions had been bona fide - Effect of - Whether the company had proven the misconduct against the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Bohari Sayed Mohd v. Hitachi Air Conditioning Product Sdn Bhd
(Mary Shakila Azariah) [2009] 4 ILR 425

Retrenchment - VSS scheme offered by the company - Claimant applying and accepted for VSS scheme - Terms and conditions attached to the scheme - Whether the claimant had been aware of it - Position held by the claimant in the company - Effect of - Whether the terms had been too harsh - Whether the Court should adjudicate on harshness or otherwise of the scheme - Whether claimant should be bound by the terms of the scheme - Whether the claimant had been victimized - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Bohari Sayed Mohd v. Hitachi Air Conditioning Product Sdn Bhd
(Mary Shakila Azariah) [2009] 4 ILR 425

DOMESTIC INQUIRY

Charge - Not stating name of other company - Whether it had made the charge defective - Effect of - Claimant admitting to still being in company’s employ whilst working for another company - Whether dismissal had been without just cause and excuse - Industrial Relations Act 1967
Bohari Sayed Mohd v. Hitachi Air Conditioning Product Sdn Bhd
(Mary Shakila Azariah) [2009] 4 ILR 425

EVIDENCE

Adverse inference - In what situations could it be drawn - Whether it could be drawn against the company for failing to produce witnesses - Witnesses no longer with the company - Effect of - Evidence Act 1950, s. 114(g)
Yap Soon Kee v. MJSB Resorts Sdn Bhd
(Ong Geok Lan) [2009] 4 ILR 277

Burden of proof - Constructive dismissal - Burden on claimant to prove - Whether the claimant had discharged his burden - Effect of - Industrial Relations Act 1967
Yap Soon Kee v. MJSB Resorts Sdn Bhd
(Ong Geok Lan) [2009] 4 ILR 277

INDUSTRIAL COURT

Remedies - Punishment - Contributory conduct of claimant - Whether the claimant had contributed to her dismissal - Effect of - Whether it should be taken into account in awarding compensation - Effect of - Factors to consider - What sort of deductions should be made - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Thavake Elumalay v. Shin Eversendai Engineering (M) Sdn Bhd
(Yamuna Menon) [2009] 4 ILR 311

Remedies - Reinstatement - Claimant not wanting reinstatement - Whether the Industrial Court still had the jurisdiction to award compensation - 2 approaches - Which was the preferred approach to be taken - Effect of - Industrial Relations Act 1967
Thavake Elumalay v. Shin Eversendai Engineering (M) Sdn Bhd
(Yamuna Menon) [2009] 4 ILR 311

Remedies - Reinstatement - Claimant seeking reinstatement - Whether is would be an appropriate remedy - Factors to consider - Effect of - Industrial Relations Act 1967
Bohari Sayed Mohd v. Hitachi Air Conditioning Product Sdn Bhd
(Mary Shakila Azariah) [2009] 4 ILR 425

LABOUR LAW

Industrial Court - Award - Compensation for constructive dismissal - Compensation limited to balance period of three months of six-month fixed term contract of employment - Whether employee on a permanent contract of employment - Whether compensation rightfully ordered by Industrial Court
Thangasamy Brown DN Gnanayutham v. Pelabuhan Tanjung Pelepas Sdn Bhd & Anor
(Suriyadi Halim Omar JCA, Heliliah Mohd Yusof JCA, KN Segara JCA) [2009] 4 ILR 269

Industrial Court - Award - Judicial review - Appeal to set aside High Court order quashing award of Industrial Court - Failure by Industrial Court to deal with issue on jurisdiction - Whether constituted an error of law upon which judicial review may be granted - Exercise of discretion
Kumpulan Linggi Sdn Bhd (Ladang Bukit Badak) v. The National Union Of Plantation Workers
(Gopal Sri Ram JCA, Hasan Lah JCA, Jeffrey Tan J) [2009] 4 ILR 244

Industrial Court - Jurisdiction - Judicial review - Appeal to set aside High Court order quashing award of Industrial Court - Failure by Industrial Court to deal with issue on jurisdiction - Whether constituted an error of law upon which judicial review may be granted - Exercise of discretion
Kumpulan Linggi Sdn Bhd (Ladang Bukit Badak) v. The National Union Of Plantation Workers
(Gopal Sri Ram JCA, Hasan Lah JCA, Jeffrey Tan J) [2009] 4 ILR 244

Provident Fund - Contributions - Allegations of unlawful deductions made by employer - Interpretation of regulations of fund - Whether employees entitled to full reimbursement and restitution - Employees Provident Fund Act 1951, s. 9(1) - Employees Provident Fund Act 1991, s. 47(1)
Chong Thian Fook & Ors v. Sarawak Shell Bhd & Ors
(Richard Malanjum CJ (Sabah & Sarawak), Arifin Zakaria FCJ, Nik Hashim FCJ) [2009] 4 ILR 221

Trade union - Collective agreement - Dispute - Judicial review - Appeal to set aside High Court order quashing award of Industrial Court - Failure by Industrial Court to deal with issue on jurisdiction - Whether constituted an error of law upon which judicial review may be granted - Exercise of discretion
Kumpulan Linggi Sdn Bhd (Ladang Bukit Badak) v. The National Union Of Plantation Workers
(Gopal Sri Ram JCA, Hasan Lah JCA, Jeffrey Tan J) [2009] 4 ILR 244

PROVIDENT FUND

Arrears of contributions - Failure to pay - Allegations of unlawful deductions made by employer - Sarawak and Sabah Retirement Benefit Fund - Interpretation of regulations of fund - Whether employees entitled to full reimbursement and restitution - Employees Provident Fund Act 1951, s. 9(1) - Employees Provident Fund Act 1991,
s. 47(1)
Chong Thian Fook & Ors v. Sarawak Shell Bhd & Ors
(Richard Malanjum CJ (Sabah & Sarawak), Arifin Zakaria FCJ, Nik Hashim FCJ) [2009] 4 ILR 221

ROAD TRAFFIC

Licence - Motor vehicle licence - Refusal to issue - Application for orders of certiorari and mandamus - Applicant blacklisted by respondents due to an outstanding summons - Whether decision to blacklist applicant and not issue him with licence unreasonable and unlawful - Road Transport Act 1987, ss. 15(1), (4), 17(1)(d) - Federal Constitution, art. 13
Leonard Lim Yaw Chiang v. Director Of Jabatan Pengangkutan Jalan Negeri Sarawak & Anor
(Abdul Aziz Rahim J) [2009] 4 ILR 250

CASE OF THE WEEK

LIM LEE CHANG v. CHINA AIRLINES

DISMISSAL: Constructive dismissal - Claimant cited for misconduct - Claimant directed to withhold salary of employee but no directions given about statutory contributions - Claimant making statutory contributions as per past practice - Employee subsequently walking out on constructive dismissal - Claimant blamed for overpayment re statutory contributions - Effect of - Whether it had been claimant’s sole fault - Whether other parties had been involved in the mistake - Effect of - Claimant’s position in the company - Effect of - Conduct of company - Whether it had constituted a fundamental breach of terms of employment - Whether justified claimant deeming herself constructively dismissed - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)

DISMISSAL: Constructive dismissal - Claimant cited for misconduct - Claimant’s misconduct put up on the company’s notice board - Whether it had been a past practice of the company - Claimant objecting to it - Informing company of her objections - Company not paying any heed - Effect of - Whether it had constituted a fundamental breach of terms of employment - Whether justified claimant deeming herself constructively dismissed - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)

DISMISSAL: Constructive dismissal - Claimant cited for misconduct - Company unilaterally deducting her salary - Claimant objecting - Company not paying any heed - Effect of - Whether it had constituted a fundamental breach of terms of employment - Whether it had destroyed the relationship of trust and confidence between the parties - Whether justified claimant deeming herself constructively dismissed - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)

INDUSTRIAL COURT: Remedies - Punishment - Contributory conduct of claimant - Evidence that claimant had been rude and negative to her superior - Effect of - Whether it should be taken into account in awarding compensation - Effect of - Factors to consider - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)

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