ILR_Bulletin_03

AWARD	PARTIES	PAGE
	Ramli Samad v. Pacific & Orient Insurance Co Sdn Bhd [Civil Appeal No: W-04-188-2006]	[2010] 1 ILR 441
36/2010	Shamsul Anwar Haji Md Razi v. Perbadanan Nasional Berhad [Case No: 25(5)/4-491/03]	[2010] 1 ILR 463
98/2010	Wong Wai Meng v. Bitumax Industries Sdn Bhd [Case No: 26(1)(4)/4-2437/06]	[2010] 1 ILR 533
110/2010	Chin Kah Yim v. Poliklinik Khor And Arun [Case No: 3/4-1760/05]	[2010] 1 ILR 541
132/2010	JC Freight & Enterprise v. Ngoh Looi [Case No: 12(22)(15)/4-466/03]	[2010] 1 ILR 546
167/2010	Kwan Yin Ping v. Syarikat Tekala Sdn Bhd [Case No: 17/4-97/08]	[2010] 1 ILR 562
170/2010	Yuan Bahtiar Kassim lwn. Urusan Teknologi Wawasan Sdn Bhd [No. Kes: 2/4-630/07]	[2010] 1 ILR 575
198/2010	Muhammad Syed Mohan Abdullah v. Bateel Asia Sdn Bhd [Case No: 2/4-719/03]	[2010] 1 ILR 583
206/2010	Zahari Ibrahim lwn. Lee Wah Sawmill Sdn Bhd [No. Kes: 11/4-2256/06]	[2010] 1 ILR 595
209/2010	Teh Cheng Hock v. Lilly Industries Malaysia Sdn Bhd [Case No: 24/4-305/06]	[2010] 1 ILR 616
218/2010	Dr Vedhakumar N K Valliappan v. Premium Vegetables Oils Bhd [Case No: 13(20)/4-1729/2005]	[2010] 1 ILR 632

Terms and conditions - Employment contract - Power of the company to review the terms and conditions of the contract - Whether it had enabled the company to unilaterally vary the terms of the contract - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Wong Wai Meng v. Bitumax Industries Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2010] 1 ILR 533

Terms and conditions - Claimant told to prepare his own letter of appointment - Company subsequently not getting back to him on the terms - Whether it had been malicious conduct on the part of the company - Effect of - Whose duty it had been to prepare the letter of appointment - Whether it had been the claimant’s duty to demand a letter of appointment - Effect of - Whether dismissal had been without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) and 30(5)
Muhammad Syed Mohan Abdullah v. Bateel Asia Sdn Bhd
(Mariah Ahmad) [2010] 1 ILR 583

Terms and conditions - Retirement age clause - No such clause in the employment contract - Whether it meant that the claimant could be employed in perpetuity - Effect of - Whether the retirement age had been implied based on the evidence presented - 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)
Wong Wai Meng v. Bitumax Industries Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2010] 1 ILR 533

Terms and conditions - Retirement age clause - No such clause in the employment contract - Whether the claimant had been aware of the retirement age policy of the company - Age of the claimant when he had taken up employment - Whether he should have been made aware of the policy at that stage - Effect of - Retirement policy of the company - When it had come into effect - Whether it had bound the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Wong Wai Meng v. Bitumax Industries Sdn Bhd
(Ahmad Terrirudin Mohd Salleh) [2010] 1 ILR 533

Breach of company rules and policies - Claimant absent from work - Claimant on medical leave for a prolonged period - Medical certificates submitted - Backdated medical certificates - Genuineness of the medical certificates - Effect of - Issuing doctor questioned and giving an explanation - Whether his explanation had been reasonable - Effect of - Whether it had constituted just cause to dismiss the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
JC Freight & Enterprise v. Ngoh Looi
(Gulam Muhiaddeen Abdul Aziz) [2010] 1 ILR 546

Breach of company rules and policies - Claimant declaring incorrectly on purchase price of the car offered to him by the company to get a higher loan sum - Whether it had constituted a misuse of his position in the company - Position held by the claimant - Effect of - Whether proven by the company - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Shamsul Anwar Haji Md Razi v. Perbadanan Nasional Berhad
(Jalaldin Hussain) [2010] 1 ILR 463

Breach of company rules and policies - Claimant on medical leave for a prolonged period - Whether the medical leave taken had been excessive - Effect of - Whether there had been a suspicion of the abuse in taking medical leave - Effect of - Whether dismissal had been without just cause and excuse - Industrial Relations Act 1967
JC Freight & Enterprise v. Ngoh Looi
(Gulam Muhiaddeen Abdul Aziz) [2010] 1 ILR 546

Breach of company rules and policies - Claimant on medical leave for a prolonged period - Whether the claimant had informed her employers of the fact that she had been on medical leave - Steps taken by the claimant - Whether they had been sufficient - Effect of - Whether the claimant had discharged her burden of proof - Whether it had been a fundamental duty on the part of the claimant to inform the company of her absence - Effect of - Claimant’s attitude - Effect of - Whether dismissal had been without just cause and excuse - Industrial Relations Act 1967
JC Freight & Enterprise v. Ngoh Looi
(Gulam Muhiaddeen Abdul Aziz) [2010] 1 ILR 546

Constructive dismissal - Change in job function - Claimant developing a medical problem and put on a monthly retainer with the company - Retainer arrangement to continue for a particular period of time pursuant to an agreement reached between the parties - Whether the claimant had still been in the company's employ by virtue of the retainer arrangement - The claimant subsequently asking to be put into his original position during the period of the retainer - Company offering him an alternative position - Claimant walking out of employment and claiming constructive dismissal - Effect of - Intention of the company - Whether there had been a fundamental breach of the terms of employment by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Dr Vedhakumar N K Valliappan v. Premium Vegetables Oils Bhd
(Eddie Yeo Soon Chye) [2010] 1 ILR 632

Constructive dismissal - Change in job function - Claimant entering into a retainer arrangement with the company - Claimant walking out of his employment and claiming constructive dismissal during the period of the retainer arrangement - Whether the claimant had jumped the gun - Effect of - Whether there had been a fundamental breach of the terms of employment by the company - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Dr Vedhakumar N K Valliappan v. Premium Vegetables Oils Bhd
(Eddie Yeo Soon Chye) [2010] 1 ILR 632

Insubordination - Claimant failing to give a report to the company despite numerous requests - Whether it had constituted willful disobedience - 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)
Shamsul Anwar Haji Md Razi v. Perbadanan Nasional Berhad
(Jalaldin Hussain) [2010] 1 ILR 463

Insubordination - Claimant passing remarks about the management - Whether it had been unwarranted - Whether proven by the company - Effect of - Claimant’s letters to the company - Whether it had been insulting and disrespectful - 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)
Kwan Yin Ping v. Syarikat Tekala Sdn Bhd
(P Iruthayaraj D Pappusamy) [2010] 1 ILR 562

Misconduct - Claimant borrowing money from the management of the company - Claimant warned not to do so - Warning letters issued - Claimant still continuing in conduct - Effect of - Whether her actions had increased the seriousness of the gravity of her misconduct - Effect of - Whether the misconduct had been proven by the company - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Kwan Yin Ping v. Syarikat Tekala Sdn Bhd
(P Iruthayaraj D Pappusamy) [2010] 1 ILR 562

Misconduct - Claimant hiring and firing staff without the Boards approval - Whether hiring and firing staff had been within the claimant’s scope of duties - Effect of - Claimant not issued a warning letter for his actions - Whether the company had proven that the claimant had needed the Board’s approval before hiring and firing staff - Evidence adduced by the company - Effect of - Whether the company had proven the claimant’s misconduct - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Muhammad Syed Mohan Abdullah v. Bateel Asia Sdn Bhd
(Mariah Ahmad) [2010] 1 ILR 583

Misconduct - Claimant preaching and talking about religion in the company - Whether that per se had constituted a misconduct - Claimant issued warnings - Claimant still persisting in her behaviour - Whether her conduct had been offensive to her fellow workers - Effect of - Whether her actions had increased the seriousness or the gravity of her misconduct - Whether her conduct had been inconsistent with her implied duty to devote her full time and effort to the performance of her duties in the company - Effect of - Whether the claimant’s actions had been disruptive - Whether the misconduct had been proven by the company - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Kwan Yin Ping v. Syarikat Tekala Sdn Bhd
(P Iruthayaraj D Pappusamy) [2010] 1 ILR 562

Probationer - Claimant put on probation for 3 months - Claimant not given a confirmation letter - Effect of - Whether the claimant had been a probationer at the point in time of his dismissal - Claimant not given a Letter of Appointment - Claimant’s appointment subject to the oral agreement reached between the claimant and COW1 - Effect of - Claimant claiming that agreement was that he would be automatically confirmed upon expiry of his probation period - Whether proven by the claimant - What the claimant’s expectations had been - Whether his expectations had been reasonable - 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)
Muhammad Syed Mohan Abdullah v. Bateel Asia Sdn Bhd
(Mariah Ahmad) [2010] 1 ILR 583

Charges - Framing of - Claimant’s charges based on a term not applicable to him - Effect of - Claimant putting in double claims - Claimant claiming he had not been aware that he had double claimed - Offering to pay the money back - Whether he had in fact double claimed - Effect of - Whether the claimant had been guilty of a breach of his terms of employment by his actions - Claimant found guilty on this charge - Whether the findings of the panel on this charge had been untenable - Whether the company had managed to establish the misconduct against the claimant - Evidence adduced by the company - Effect of - Industrial Relations Act 1967
Shamsul Anwar Haji Md Razi v. Perbadanan Nasional Berhad
(Jalaldin Hussain) [2010] 1 ILR 463

Charges - Framing of - Claimant’s charges based on a term not applicable to him - Effect of - Claimant putting in double claims - Claimant claiming he had not been aware that he had double claimed - Offering to pay the money back - Whether he had in fact double claimed - Whether the claimant had had knowledge of the claims - Effect of - Whether the claimant had been guilty of a breach of his terms of employment by his actions - Claimant found guilty on this charge - Whether the findings of the panel on this charge had been untenable - Whether the company had managed to establish the misconduct against the claimant - Evidence adduced by the company - Effect of - Industrial Relations Act 1967
Shamsul Anwar Haji Md Razi v. Perbadanan Nasional Berhad
(Jalaldin Hussain) [2010] 1 ILR 463

Charges - Framing of - Sum claimed in the charges differing from the sum claimed by the claimant - Company failing to account for it - Effect of - Whether the claimant had been guilty of a breach of his terms of employment by his actions - Whether the company had managed to establish the misconduct against the claimant - Effect of - Industrial Relations Act 1967
Shamsul Anwar Haji Md Razi v. Perbadanan Nasional Berhad
(Jalaldin Hussain) [2010] 1 ILR 463

Procedural impropriety - No witnesses called at the DI - Claimant’s charges considered with those of other people - Effect of - Whether the findings had been based on merits - Whether the proceedings had been invalidated - Effect of - Industrial Relations Act 1967
Shamsul Anwar Haji Md Razi v. Perbadanan Nasional Berhad
(Jalaldin Hussain) [2010] 1 ILR 463

Procedural impropriety - Whether the DI had been valid - Claimant requesting for documents from the company to prepare his case - Delay in the company giving them to him - Company not giving him all the documents - Effect of - Whether the claimant had been given a fair chance to reply - Whether bias had existed - Whether the proceedings had been invalidated - Effect of - Industrial Relations Act 1967
Shamsul Anwar Haji Md Razi v. Perbadanan Nasional Berhad
(Jalaldin Hussain) [2010] 1 ILR 463

Documentary evidence - Findings of the DI - Whether the findings had been accurate - Claimant not disputing contents - Effect of - Industrial Relations Act 1967
Shamsul Anwar Haji Md Razi v. Perbadanan Nasional Berhad
(Jalaldin Hussain) [2010] 1 ILR 463

Witnesses - Claimant’s evidence and COW1’s evidence - Whose evidence had been more believable - Effect of - Whether dismissal without just cause and excuse - Industrial Relations Act 1967
Muhammad Syed Mohan Abdullah v. Bateel Asia Sdn Bhd
(Mariah Ahmad) [2010] 1 ILR 583

Jurisdiction - Whether the claimant had sought reinstatement as a remedy - Claimant giving opposing answers in his testimony - Which one was to be believed - Effect of - Conduct of the claimant - Effect of - Whether the Industrial Court had jurisdiction to hear the matter - Effect of - Industrial Relations Act 1967
Chin Kah Yim v. Poliklinik Khor And Arun
(Franklin Goonting) [2010] 1 ILR 541

Remedies - Backwages - How calculated - Factors to consider - Whether the claimant’s Valshare payouts or bonuses should have been taken into account - Whether these payments had been benefits rather than rights - Evidence adduced - Whether there should have been scaling down on these figures - The claimant’s post dismissal earnings - Effect of - Industrial Relations Act 1967
Teh Cheng Hock v. Lilly Industries Malaysia Sdn Bhd
(Yamuna Menon) [2010] 1 ILR 616

Remedies - Reinstatement - Whether the claimant had wanted this remedy - Conduct of the claimant - Effect of - Whether the Industrial Court had jurisdiction to hear the matter - Effect of - Where the appropriate venue for such a claim had been - Industrial Relations Act 1967
Chin Kah Yim v. Poliklinik Khor And Arun
(Franklin Goonting) [2010] 1 ILR 541

Remedies - Reinstatement - Whether appropriate - Factors to consider - Effect of - Industrial Relations Act 1967
Teh Cheng Hock v. Lilly Industries Malaysia Sdn Bhd
(Yamuna Menon) [2010] 1 ILR 616

Workmen’s compensation - Insurance - Judgment sum - Liability of insurer to satisfy judgment sum against insured co-employee - Co-employee contributing under Employees’ Social Security Act 1969 - Whether s. 31 of same Act prohibited recovery of judgment sum - Tan Peng Loh v. Lee Aik Fong & Anor
Ramli Samad v. Pacific & Orient Insurance Co Sdn Bhd
(James Foong JCA, Heliliah Mohd Yusof JCA, Abdul Malik Ishak JCA) [2010] 1 ILR 441

Insurance - Judgment sum - Liability of insurer to satisfy judgment sum obtained by worker against insured co-worker - Co-employee contributing under Employees’ Social Security Act 1969 - Whether s. 31 of same Act prohibited recovery of judgment sum - Tan Peng Loh v. Lee Aik Fong & Anor
Ramli Samad v. Pacific & Orient Insurance Co Sdn Bhd
(James Foong JCA, Heliliah Mohd Yusof JCA, Abdul Malik Ishak JCA) [2010] 1 ILR 441

Prosidur - Bankrap - YM seorang bankrap - Penangguhan kes dibenarkan beberapa kali - YM masih gagal untuk mendapat sanksi Ketua Pengarah Insolvensi - Kes dibatalkan - Kesannya - YM memfailkan permohonan untuk menghidupkan semula kes - Permohonan difailkan diluar jangkamasa 3 bulan yang diperuntukkan oleh mahkamah - Sama ada tempoh masa 3 bulan itu adalah mandatori - Faktor-faktor yang harus dipertimbangkan oleh mahkamah - Sama ada permohonan YM harus dibenarkan - Tugas mahkamah untuk bertindak mengikut ekuiti dan naluri baik tanpa mengambilkira teknikaliti dan ‘legal form’ - Akta Perhubungan Perusahaan 1967, ss. 20(3), 29(g) & 30(5) dan Akta Bankrapsi 1967, s. 28
Yuan Bahtiar Kassim lwn. Urusan Teknologi Wawasan Sdn Bhd
(Mariah Ahmad) [2010] 1 ILR 575

Prosidur - Tindakan - Permohonan menghidupkan semula tindakan - Faktor- faktor yang harus diambil kira - Sama ada kelakuan YM adalah relevan - Kesannya - Sama ada ketidakadilan akan menimpa YM sekiranya permohonannya ditolak - Kesannya - Akta Perhubungan Perusahaan 1967, s. 30(5)
Yuan Bahtiar Kassim lwn. Urusan Teknologi Wawasan Sdn Bhd
(Mariah Ahmad) [2010] 1 ILR 575

Salahlaku - YM memukul pekerja asing - Sebabnya - Sama ada YM diprovokasi - Faktor-faktor yang harus diambil kira - Kesannya - Sama ada salahlaku YM dibuktikan oleh syarikat - Tindakan yang diambil oleh syarikat - Sama ada memadai - Kesannya - Sama ada pembuangan kerja YM adalah tanpa alasan atau sebab yang adil - Akta Perhubungan Perusahaan 1967, s. 20(3)
Zahari Ibrahim lwn. Lee Wah Sawmill Sdn Bhd
(Ahmad Rosli Mohd Sham) [2010] 1 ILR 595

Salahlaku - YM memukul pekerja asing - Sama ada berjaya dibuktikan oleh syarikat - Kesannya - YM dibuang kerja -Sama ada hukuman buang kerja terhadap YM terlalu berat - Sama ada elemen provokasi wujud - Kesannya - Apa yang sepatutnya dibuat oleh YM - Kesannya - Sama ada pembuangan kerja YM adalah tanpa alasan atau sebab yang adil - Akta Perhubungan Perusahaan 1967 ss. 20(3) and 30(5)
Zahari Ibrahim lwn. Lee Wah Sawmill Sdn Bhd
(Ahmad Rosli Mohd Sham) [2010] 1 ILR 595

Prosidur - Sama ada siasatan dalaman yang dijalankan selaras dengan prinsip ‘natural justice’ - Cara siasatan dalaman dikendalikan - Kesannya - Sama ada telah dijalankan secara adil - Kesannya - Akta Perhubungan Perusahaan 1967
Zahari Ibrahim lwn. Lee Wah Sawmill Sdn Bhd
(Ahmad Rosli Mohd Sham) [2010] 1 ILR 595

New This Week	1. ILR Articles
	2. ILR Issue 3 of 2010