ILR Bulletin, Issue 2009, Vol 08
September 2009

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INDUSTRIAL LAW REPORTS ISSUE 8 of 2009

AWARDS REPORTED

Award

Parties

Page

  

Asriyah Sairy v. Suruhanjaya Perkhidmatan Awam, Malaysia & Anor [Civil Suit No: S1-22-41-1988]

[2009] 3 ILR 225

730/2009

Heng Kiah Woo v. Consolidated Farms Berhad [Case No: 3/1-254/08]

[2009] 3 ILR 237

755/2009

Lim Eye Thun v. Majlis Peguam Malaysia [Case No: 5/5-582/08]

[2009] 3 ILR 243

786/2009

Panpac Media (M) Sdn Bhd v. Sasikala T P D Nair [Case No: 22(3)/4-1361-04]

[2009] 3 ILR 263

822/2009

Abdul Ghaffar Cheong Abdullah v. WRP Speciality Products Sdn Bhd [Case No: 3/4-464/07]

[2009] 3 ILR 276

838/2009

Chow Hong Lit v. Fluid Systems Sdn Bhd [Case No: 27/4-1136/05]

[2009] 3 ILR 280

849/2009

Kesatuan Pekerja-pekerja Felda Plantations Sdn Bhd v. Felda Plantations Sdn Bhd [Case No: 5/1-474/08]

[2009] 3 ILR 294

856/2009

Kesatuan Pekerja-pekerja Koperasi Polis Diraja Malaysia Berhad v. Koperasi Polis Diraja Malaysia Berhad [Case No: 26(1)/1-1497/2007]

[2009] 3 ILR 304

869/2009

T Mahendranathan v. KCH Holdings Sdn Bhd [Case No: 5(13)/4-847/04]

[2009] 3 ILR 313

894/2009

Datuk Dr Chew Han Ching v. Putera Capital Berhad [Case No: 13(28)/4-2444/2006]

[2009] 3 ILR 329

896/2009

Lim See Wai v. England Optical Group (M) Sdn Bhd [Case No: 1(4)/4-1839/05]

[2009] 3 ILR 343

907/2009

Ahmad Kamil Abu Hashim lwn. KGMMB Holdings Sdn Bhd [No. Kes: 19/4-846/05]

[2009] 3 ILR 367

909/2009

Suzana Zakaria lwn. Sistem Televisyen Malaysia Berhad [No. Kes: 19/6-930/05]

[2009] 3 ILR 378

938/2009

Lucy Liduin v. Clinipath (Malaysia) Sdn Bhd [Case No: 17/4-8/08]

[2009] 3 ILR 387

966/2009

Usha Kumari Ram Lall v. Malaysia Airline System Berhad [Case No: 3/4-47/06]

[2009] 3 ILR 407

979/2009  

Samat Lakapi v. Malaysian Airline System Berhad [Case No: 17/4-1361/07]

[2009] 3 ILR 419

985/2009

Nermal Singh Amar Singh v.  Federal Express Services (M) Sdn Bhd [Case No: 1(4)/1-48/09]

[2009] 3 ILR 437

SUBJECT INDEX

ADMINISTRATIVE LAW

Disciplinary proceedings - Public servant - Right to oral hearing - Governing principles - Case laws - Federal Constitution, art. 135(2) - Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980, GO 26
Asriyah Sairy v. Suruhanjaya Perkhidmatan Awam, Malaysia & Anor
(Kang Hwee Gee J) [2009] 3 ILR 225

Exercise of administrative powers - Dismissal from service - Request for oral hearing denied - Committee of inquiry not appointed despite peculiar facts of case - Whether plaintiff afforded a fair hearing - Whether disciplinary authority committed procedural unfairness - Whether dismissal null and void - Federal Constitution, art. 135(2) - Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980, GO 26
Asriyah Sairy v. Suruhanjaya Perkhidmatan Awam, Malaysia & Anor
(Kang Hwee Gee J) [2009] 3 ILR 225

CONSTITUTIONAL LAW

Public servants - Dismissal - Request for oral hearing denied - Committee of inquiry not appointed despite peculiar facts of case - Whether plaintiff afforded a fair hearing - Whether disciplinary authority committed procedural unfairness - Whether dismissal null and void - Federal Constitution, art. 135(2) - Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980, GO 26
Asriyah Sairy v. Suruhanjaya Perkhidmatan Awam, Malaysia & Anor
(Kang Hwee Gee J) [2009] 3 ILR 225

DISMISSAL

Breach of company rules and policies - Breach of fiduciary duties - Claimant paying himself bonus - Board of Directors approval not sought - Claimant paying himself bonuses in the past - Whether company had knowledge of it - No issue taken by company before - Effect of - Position held by the claimant in the company - Whether he had the authority to issue bonus payments to himself - 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)
Chow Hong Lit v. Fluid Systems Sdn Bhd
(Mary Shakila Azariah) [2009] 3 ILR 280

Breach of company rules and policies - Breach of fiduciary duties - Claimant paying himself bonus without the approval of the Board of Directors - Calculation of bonus payment - Whether it had been agreed to by the company - Past practice of the company - Whether it had been an established practice of the company - Effect of - 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) and Companies Act 1965 Table A of the Fourth Schedule arts. 92 & 93
Chow Hong Lit v. Fluid Systems Sdn Bhd
(Mary Shakila Azariah) [2009] 3 ILR 280

Breach of company rules and policies - Conflict of interest with company’s business - Claimant signing a Scholarship Agreement with the company - Terms of the Agreement - Whether it had been fraught with ambiguity - Effect of - Whether the claimant had still remained bonded to the company - Interpretation of the Agreement - Effect of - Duration of the Agreement - Whether the claimant had been in breach of the terms of the Agreement - 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)
Lim See Wai v. England Optical Group (M) Sdn Bhd
(Amelia Tee Hong Geok Abdullah) [2009] 3 ILR 343

Breach of company rules and policies - Conflict of interest with company’s business - Claimant incorporating and holding shares in a company carrying on a business of a similar nature to the company - Whether claimant had knowledge - Claimant alleging his name being used by his father - Whether proven by the claimant - Effect of - 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)
Lim See Wai v. England Optical Group (M) Sdn Bhd
(Amelia Tee Hong Geok Abdullah) [2009] 3 ILR 343

Breach of company rules and policies - Dishonesty - Whether claimant had been in breach of her obligations as per the Station Information Manual - Interpretation of terms - Claimant in possession of excess cigarettes - Whether that per se had constituted a misconduct - Effect of - 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)
Usha Kumari Ram Lall v. Malaysia Airline System Berhad
(Franklin Goonting) [2009] 3 ILR 407

Breach of company rules and policies - Dishonesty - Claimant in possession of excess cigarettes - Whether she had admitted to it - Claimant replying to show cause letter and annexing corroborative affidavit - Whether it had been taken into account by the respondent when dismissing her - Effect of - Whether the misconduct had been established by the company - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
Usha Kumari Ram Lall v. Malaysia Airline System Berhad
(Franklin Goonting) [2009] 3 ILR 407

Breach of company rules and policies - Fraud or Dishonesty - STA usage of company employees - Restrictions placed on usage - Whether the claimant had been aware - Effect of - Claimant using deceit and getting his colleague to use his STA privilege for a third party - Representations made by the claimant - Whether it had constituted blatant dishonesty - Claimant’s colleague relying on claimant’s representations and getting into trouble - Subsequently dismissed from service - 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)
Samat Lakapi v. Malaysian Airline System Berhad
(P Iruthayaraj D Pappusamy) [2009] 3 ILR 419

Breach of company rules and policies - Fraud or Dishonesty - Whether the claimant had acted deceitfully - Meaning of deceit - Effect of - Conduct of the claimant - Position held by the claimant in the company - What had been expected of him - Effect of - Whether the claimant had dutifully discharged his responsibilities - Whether the company had been deprived of earning maximum revenue - Effect of - 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)
Samat Lakapi v. Malaysian Airline System Berhad
(P Iruthayaraj D Pappusamy) [2009] 3 ILR 419

Constructive dismissal - Salary - Claimant’s salary not paid - Claimant’s salary payable by HQ where she was supposed to report - Claimant failing to report - Whether claimant had knowledge of it - Whether her contentions that her salary had been unpaid had merit - 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)
Lucy Liduin v. Clinipath (Malaysia) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2009] 3 ILR 387

Constructive dismissal - Status - Treatment of the claimant - Claimant made to sit next to Accounts clerk and in the common area - Position held by the claimant - Claimant holding a managerial position - Effect of - Conduct of company - Whether fundamental breach of terms of employment - Whether justified claimant walking out of employment - Whether claimant had condoned the breach - Claimant walking out immediately - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
T Mahendranathan v. KCH Holdings Sdn Bhd
(Chew Soo Ho) [2009] 3 ILR 313

Constructive dismissal - Transfer - Claimant making demands - Whether they had been reasonable - Effect of - Whether claimant would have acceded to the transfer had her demands been met - Contents of her letters - Attitude of the claimant - 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)
Lucy Liduin v. Clinipath (Malaysia) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2009] 3 ILR 387

Constructive dismissal - Transfer - Claimant given directive to transfer - Claimant refusing to transfer - Continuing to report at Tg. Aru - Whether it had amounted to a defiance of the company’s transfer order - Effect of - Whether claimant’s conduct had amounted to an affirmation of the contract of employment - 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)
Lucy Liduin v. Clinipath (Malaysia) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2009] 3 ILR 387

Constructive dismissal - Transfer - No express policy on payment of expenses on transfer - Whether it could be implied - Factors to consider - 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)
Lucy Liduin v. Clinipath (Malaysia) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2009] 3 ILR 387

Constructive dismissal - Transfer - Whether claimant’s transfer had been bona fide - Whether it had been part of the company’s expansion plans - Effect of - Whether claimant had adduced any evidence to corroborate her allegation that her transfer 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)
Lucy Liduin v. Clinipath (Malaysia) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2009] 3 ILR 387

Constructive dismissal - Transfer - Whether it had been an offer or directive - Factors to consider - Effect of - Company’s words and actions - Whether within company’s discretion to transfer the claimant - Whether there had been any mala fide intent on part of the company - 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)
Lucy Liduin v. Clinipath (Malaysia) Sdn Bhd
(P Iruthayaraj D Pappusamy) [2009] 3 ILR 387

Constructive dismissal - Whether proven by the claimant - Claimant not threatened of forced to resign - Claimant voluntarily resigning - Effect of - Whether there had been a dismissal - Industrial Relations Act 1967, s. 30(5)
Datuk Dr Chew Han Ching v. Putera Capital Berhad
(Eddie Yeo Soon Chye) [2009] 3 ILR 329

Constructive dismissal - Whether proven by the claimant - Whether the company had breached a fundamental term of the claimant’s contract which had gone to the root of the contract - Effect of - Industrial Relations Act 1967
Datuk Dr Chew Han Ching v. Putera Capital Berhad
(Eddie Yeo Soon Chye) [2009] 3 ILR 329

Notice of termination - Forced resignation - Not pleaded by the claimant - Effect of - Whether claimant’s resignation obtained under undue influence, coercion or force - Whether proven by the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Datuk Dr Chew Han Ching v. Putera Capital Berhad
(Eddie Yeo Soon Chye) [2009] 3 ILR 329

Notice of termination - Forced resignation - Whether proven by the claimant - Claimant voluntarily signing undated letter of resignation and depositing it with the company - Whether the claimant had been aware of the effects - Position held by the claimant in the company - Effect of - Claimant not taking any action to withdraw resignation - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Datuk Dr Chew Han Ching v. Putera Capital Berhad
(Eddie Yeo Soon Chye) [2009] 3 ILR 329

Performance - Claimant sending e-mail to company indicating she no longer wished to continue with one publication - Contents of the e-mail - Whether it had been a demand or a request - Factors to consider - Effect of - Claimant still handling the publication after sending out the e-mail - Whether charge proven by the company - Effect of - Whether the company had taken her protests seriously - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Panpac Media (M) Sdn Bhd v. Sasikala T P D Nair
(Teo Say Eng) [2009] 3 ILR 263

Performance - Unsatisfactory performance - Whether proven by the company - Claimant unable to improve the profitability of the publication - Terms and conditions of the claimant’s employment contract - Job scope of the claimant not specified - Effect of - Whether the profitability of the publication had been under her job scope - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Panpac Media (M) Sdn Bhd v. Sasikala T P D Nair
(Teo Say Eng) [2009] 3 ILR 263

Performance - Unsatisfactory performance - Closure of publication due to lack of profitability - Whether claimant had been responsible for the profitability of the publication - Effect of - Whether company had proven the charge against the claimant - Effect of - Whether it had constituted good grounds for terminating the claimant’s employment - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
Panpac Media (M) Sdn Bhd v. Sasikala T P D Nair
(Teo Say Eng) [2009] 3 ILR 263

EVIDENCE

Documentary evidence - To show lack of profitability of publication - Admissibility - Originals not produced and makers of documents not called as witnesses - Effect of - Quality of evidence - Whether documents should be admissible - Industrial Relations Act 1967
Panpac Media (M) Sdn Bhd v. Sasikala T P D Nair
(Teo Say Eng) [2009] 3 ILR 263

INDUSTRIAL COURT

Procedure - Parties - Joinder - Complainant seeking to join liquidators - Reasons for the same - Whether tenable - Whether liquidators could be held personally liable - Effect of - Industrial Relations Act 1967
Heng Kiah Woo v. Consolidated Farms Berhad
(Franklin Goonting) [2009] 3 ILR 237

Procedure - Parties - Joinder - Complainant seeking to join director of respondent company - Whether director had been directing mind or alter ego of the company - Number of shares held by the director sought to be joined - Effect of - Reasons for joining the director to the proceedings - Whether tenable - Effect of - Industrial Relations Act 1967
Heng Kiah Woo v. Consolidated Farms Berhad
(Franklin Goonting) [2009] 3 ILR 237

Procedure - Locus standi - Whether claimant’s solicitors had represented one of the respondent’s associate companies - Separate legal entities - Whether a conflict of interest existed - Capacity of representation - Effect of - Whether the claimant’s solicitors should be allowed to represent the claimant - Effect of - Legal Profession (Practice and Etiquette) Rules 1978, rr. 3, 4, 5 and 16
Abdul Ghaffar Cheong Abdullah v. WRP Speciality Products Sdn Bhd
(Franklin Goonting) [2009] 3 ILR 276

Procedure - Reference to High Court - 7 questions sought to be referred - Whether the questions sought to be referred had merited a reference - Merits of the case undecided - Effect of - Factors to consider - Whether requirements of s. 33A of the IRA had been satisfied - Effect of - Industrial Relations Act 1967, ss. 8(2A), 20(1), 20(2), 20(3), 26, 29, 29(g), 30, 30(4), 33A(1), 52(2), Part VI & Legal Profession Act 1976, ss. 47, 47(1), 98(3)
Lim Eye Thun v. Majlis Peguam Malaysia
(Chew Soo Ho) [2009] 3 ILR 243

Remedies - Compensation - Benefits enjoyed by the claimant during his employment - Whether it had been on a reimbursable basis - No evidence that expenses incurred - Whether equitable to award - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 30(5)
T Mahendranathan v. KCH Holdings Sdn Bhd
(Chew Soo Ho) [2009] 3 ILR 313

Remedies - Compensation - Bonus payments - Whether claimant had been entitled to it contractually - Terms of the claimant’s contract of employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 30(5)
T Mahendranathan v. KCH Holdings Sdn Bhd
(Chew Soo Ho) [2009] 3 ILR 313

Remedies - Compensation - Claimant on a fixed term contract - 42 months left on the contract - Whether amount of backwages should be limited to 24 months - Factors to consider - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 30(5)
T Mahendranathan v. KCH Holdings Sdn Bhd
(Chew Soo Ho) [2009] 3 ILR 313

Remedies - Compensation - Payment to Messrs TMN Management Consultants - Whether claimant had been entitled to it contractually - Terms of the claimant’s contract of employment - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 30(5)
T Mahendranathan v. KCH Holdings Sdn Bhd
(Chew Soo Ho) [2009] 3 ILR 313

PUBLIC SERVANTS

Dismissal - Dismissal of plaintiff nurse - Request for oral hearing denied - Committee of inquiry not appointed despite peculiar facts of case - Whether plaintiff afforded a fair hearing - Whether disciplinary authority committed procedural unfairness - Whether dismissal null and void - Federal Constitution, art. 135(2) - Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980, GO 26
Asriyah Sairy v. Suruhanjaya Perkhidmatan Awam, Malaysia & Anor
(Kang Hwee Gee J) [2009] 3 ILR 225

NON-COMPLIANCE

Award - Consent award - Terms of the consent award - Whether had been ambiguous - Respondent failing to pay the awarded sum to the complainant - Reasons advanced for the same - Effect of - Whether the respondent had been seeking to unilaterally include terms into the consent award to avoid running foul of the law - Effect of - Whether there had been non-compliance by the respondent - Industrial Relations Act 1967, s. 56(1) & Income Tax Act 1967, ss. 83(3) & 83(5)
Nermal Singh Amar Singh v. Federal Express Services (M) Sdn Bhd
(Amelia Tee Hong Geok Abdullah) [2009] 3 ILR 437

Award - Consent award - Terms of the consent award - Respondent failing to comply - Respondent awaiting tax clearance - Whether the respondent had been aware of obligations under the law when entering into consent award - Whether it should be allowed - What the respondent should have done - Respondent failing to pay the awarded sum to the complainant - Effect of - Whether there had been non-compliance by the respondent - Industrial Relations Act 1967, s. 56(1) & Income Tax Act 1967 ss. 83(3) & 83(5)
Nermal Singh Amar Singh v. Federal Express Services (M) Sdn Bhd
(Amelia Tee Hong Geok Abdullah) [2009] 3 ILR 437

Award - Consent award - Respondent failing to comply - Whether consent award could be varied - Whether proper application before the court - Whether special circumstances shown - Effect of - Whether there had been non-compliance by the respondent - Industrial Relations Act 1967, s. 56(1) & Income Tax Act 1967, ss. 83(3) & 83(5)
Nermal Singh Amar Singh v. Federal Express Services (M) Sdn Bhd
(Amelia Tee Hong Geok Abdullah) [2009] 3 ILR 437

Award - Respondent wound-up - Effect of - Liquidators appointed to look after respondent’s interests - Liquidators not party to the proceedings - Effect of - Courses of action open to the complainant - Effect of filing a non-compliance action - Industrial Relations Act 1967, ss. 56(1) & 56(4)
Heng Kiah Woo v. Consolidated Farms Berhad
(Franklin Goonting) [2009] 3 ILR 237

Collective Agreement - Article on existing benefits - Whether lump sum payments came under the ambit of existing benefits - Factors to consider - Effect of - Whether lump sum payments had been performance based - Whether it had been the prerogative of the company to give - Whether the lump sum payments had been annual increments - Effect of - Conduct of the union in negotiating the Collective Agreement - Whether the company had breached the article on existing benefits in the Collective Agreement - Effect of - Industrial Relations Act 1967, s. 56
Kesatuan Pekerja-pekerja Felda Plantations Sdn Bhd v. Felda Plantations Sdn Bhd
(Chew Soo Ho) [2009] 3 ILR 294

Collective Agreement - Article on retirement benefits - Intention of - Claimant seconded to subsidiary of koperasi and later re-absorbed back into the koperasi - Whether there had been a break in his employment - Factors to consider - Effect of - Whether he had been entitled to retirement benefits - Whether the koperasi had breached the article on retirement benefits in the Collective Agreement - Effect of - Industrial Relations Act 1967, s. 56
Kesatuan Pekerja-pekerja Koperasi Polis Diraja Malaysia Berhad v. Koperasi Polis Diraja Malaysia Berhad
(Ahmad Terrirudin Mohd Salleh) [2009] 3 ILR 304

INDEKS PERKARA

PEMBUANGAN KERJA

Pekerja percubaan - Yang menuntut masih menjalani tempoh percubaan - Sama ada tindakan syarikat tersebut menunjukkan niatnya untuk tidak lagi meneruskan dengan kontrak perkhidmatan YM - Sama ada dibuktikan oleh YM - Kesannya - Sama ada YM telah meletak jawatan - Kesannya - Sama ada pembuangan kerja adalah tanpa alasan atau sebab yang adil - Akta Mahkamah Perusahaan 1967, s. 20(3)
Ahmad Kamil Abu Hashim lwn. KGMMB Holdings Sdn Bhd
(Badariah Hassan) [2009] 3 ILR 367

Pemecatan secara konstruktif - Yang menuntut dihalang masuk ke pejabat - Sama ada YM sahaja dihalang masuk ke pejabat - Jawatan YM - Tindakan yang diambil oleh YM - Kesannya - Sama ada tindakan syarikat merupakan perlanggaran yang melibatkan asas kontrak antara mereka - Sama ada tindakan YM adalah pramatang - Kesannya - Apa yang seharusnya dilakukan oleh YM - Sama ada pembuangan kerja adalah tanpa alasan atau sebab yang adil - Akta Mahkamah Perusahaan 1967, s. 20(3)
Ahmad Kamil Abu Hashim lwn. KGMMB Holdings Sdn Bhd
(Badariah Hassan) [2009] 3 ILR 367

PENTAFSIRAN

Award - Yang menuntut diambil bekerja semula oleh syarikat dan dibayar pampasan - Pampasan YM tidak merangkumi bonus dan kenaikan gaji - Sama ada YM berhak kepada bayaran-bayaran tersebut - Kesannya - Terma-terma Award - Interpretasi Award tersebut - Sama ada bayaran bonus dan kenaikan gaji adalah atas budi bicara syarikat - Sama ada YM dapat membuktikan bahawa beliau berhak mendapat bayaran-bayaran tersebut - Kesannya - Akta Mahkamah Perusahaan Act 1967, ss. 30(4), 30(5) dan 33(1)
Suzana Zakaria lwn. Sistem Televisyen Malaysia Berhad
(Badariah Hassan) [2009] 3 ILR 378

CASE OF THE WEEK

AFIZAH YAAKOB v. COSMOPOINT SDN BHD

DISMISSAL: Insubordination - Company transferring the claimant - Whether the claimant's letter of employment had provided for her transfer - Terms and conditions of the claimant's service - Effect of - Reasons for the transfer - Whether the transfer had been bona fide and legal - Whether it had been to satisfy the company's business objectives - Claimant failing to obey transfer orders - Reasons for her refusal - Whether her reasons had constituted personal reasons - Effect of - Whether the company had succeeded in establishing insubordination - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)

DISMISSAL: Insubordination - Company transferring the claimant - Claimant not consulted by company prior to her transfer - Whether the company had been under an obligation to consult her - Effect of - Transfer clause in claimant's letter of employment - Scope of the transfer clause - Effect of - Claimant claiming relocation would be difficult due to lack of support - Whether proven by the claimant - Effect of - Whether the company had succeeded in establishing insubordination - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)

DISMISSAL: Insubordination - Company transferring the claimant - Claimant given 3 days notice informing her of her transfer - Whether it had constituted short notice to the claimant - Whether it had been to satisfy the company's business objectives - Whether the transfer although inconvenient had been legal - Reasons for the company giving her such short notice - Effect of - Claimant failing to obey transfer orders - Claimant not submitting any formal request to extend her transfer orders - What she should have done - Effect of - Whether the company had succeeded in establishing insubordination - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)

DISMISSAL: Insubordination - Company transferring the claimant - Claimant failing to obey transfer orders - Claimant claiming that transfer allowance had been insufficient - Whether the transfer allowance had been contractual - Effect of - Whether her objection to it had been reasonable - Effect of - Whether the claimant had proven that by the transfer she would have suffered a loss of remuneration and benefits - Effect of - Whether the company had succeeded in establishing insubordination - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)


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