[2011] 1 ILR -698

ZAINAL ABIDIN ZAKARIA V ARUS DIMENSI SDN. BHD  - CASE NO:1/1-788/10
SUSILA SITHAMPARAM

INDUSTRIALCOURT:  Procedure- Parties- Joinder

1. In an application for joinder under the said  Act, the test in Hotchtief's case had to be satisfied before a Director could be joined as a party.
2. There are 2 limbs in Hotchtief's case. The first is whether the party to be joined is interested in the proceedings and the second is whether the employer is able to represent itself ( himself?) in the proceedings.

[2011] 1 ILR 507- SUNNY KHOO

SUNNY KHOO V YB MENTERI SUMBER MANUSIA, MALAYSIA, KUALA LUMPUR

HIGH COURT MALAYA, KUALA LUMPUR AZIAH ALI J

[JUDICIAL REVISION] NO:R1-25-143-2008] 1ST NOVEMBER 2010

Administrative Law- JR- Statutory Body - Decision of Minister  not to refer representation on dismissal to IC for adjudication - Whether decision justified in view of  reinstatement offer made- IRA 1967 s20(3)

The applicant applied for JR under O53 Rules of the HC 1980 for an order for certiorari to quash the decision made by the Minister under S20(3) of the IRA 1967 in refusing to refer the applicant's representation to the IC for adjudication.

Held: the applicant refused the offer of re-instatement to his previous post with the same terms and conditions of employment. If the employer reinstates or offers to reinstate  the employee to his former employment without loss of any benefits or privileges, there is simply nothing to refer because of the re-instatement or the offer thereof.

THE LAW ON INSUBORDINATION -DISOBEDIENCE

GOODYEAR BHD & NATIONAL UNION OF EMPLOYEES IN COMPANIES MANUFACTURING RUBBER PRODUCTS (AWARD 63 OF 1986)

the IC in this case took the approach, that an act of disobedience can justify dismissal only if it is of a nature which goes to show  in effect that the servant is repudiating the contract or one of its essential conditions. The disobedience must have the quality that it is willful, in other words a deliberate flouting of essential contractual conditions.

[2011] 1 ILR 320

ADAM LAU CHEE SENG V AMBIENCE LIGHTING (M) SDN. BHD.

DISMISSAL- INSUBORDINATION

The Company had sent him s show cause cause letter asking him to explain why action should not be taken against him and giving him 7 days to reply but he had been issued a dismissal letter  2 days later.Thus the claimant had not been given the opportunity to reply which also had not been right.Thus taking all the evidence and circumstances into consideration, the claimant's dismissal had been without just cause or excuse.

TIME FACTOR

JOEDY KANNIAH V POLIKLINIK VETERINA SDN.  BHD & ORS [1997]  5 CLJ 237

[2011] 1 ILR 249

CHEAW HON LEONG V MULLER MARTINI (MALAYSIA) SDN. BHD
YAMUNA MENON [CASE NO 24(5)/4-2131/04]

DISMISSAL- Unsatisfactory performance /whether proven by the Company

Held :-For the Claimant. The issue of confidentiality had not been pleaded and neither had it been given as a reason for the Claimant's dismissal.

[Dismissal without just cause or excuse- Claimant awarded backwages and compensation in lieu of re-instatement in the sum of RM532,500/ ]

[2011] 3 ILR 257

GURU DHILLION V PROFITABLE PLOTS SDN. BHD   [FRANLIN GOONTING]

Dismissal- Poor Performance
Held: For the Claimant- Dismissal without just cause or excuse

The Claimant's testimony, which had been corroborated by the documents tendered to the Court had stood unrebutted by the respondent.The respondent had given non-performance as the reason for the dismissal and hence the onus had been on then to prove it. From the evidence, the reason had not been made out and following Goon Kwee Phoy, the inevitable conclusion had been that the dismissal had been without just cause and excuse.

PLEADINGS

RANJIT KAUR A/P S GOPAL  SINGH V HOTEL EXCELSIOR (M) SDN. BHD [2010] 6 MLJ 1 (RAUS SHARIF FCJ)

Issues:- Labour  Law- Industrial Court-Finding of Fact- Issue not pleaded in Claimant's SOC- Finding made based on umpleaded issue- whether  Industrial Court free to raise issues raised in pleadings-whether S30 (5) of the IRA 1967 could save Claimant's defective pleadings --IRA 1967 S30(5).

The IRA 1967 could not be used to overide or circumvent the basic rules of pleadings. The  IC, like the Civil Courts must confine itself to the four corners of  the pleadings.Pleadings in the IC are as important as in the civil courts.The Claimant must plead his case and the IC must decide on the Claimant's pleaded case. This is important in order to prevent the element of surprise and provide room for the other party  to adduce  evidence once a fact or an issue is pleaded.The IC's duty to act according to equity, good conscience and substantial merits of the case without regard to technicalities and legal form under Sect 30(5), does not give the IC the right to ignore the Industrial Court Rules 1967 made under the principal act (see paras 28-29) R Rama Chandran v The Industrial  Court of Malaysia & Anor [1997] 1 MLJ 145 followed.

CD- SYARIKAT PERMODALAN

SYARIKAT PERMODALAN KEBANGSAAN BHD V MOHAMED JOHARI ABDUL RAHMAN  --INDUSTRIAL COURT  KUALA LUMPUR- N RAJASEGARAN AWARF NO 921 OF 2004 [CASE NO:15/4-629/01]

Held :For the Claimant

In order for an employee to claim CD, 4 conditionsmust be met:-

1. there must be a breach of contract by the employer
2. the breach must be sufficiently important so as to justify the employee resigning
3. the employee must leave in response to the breach and not for some unconnected reason
4. the employee msut not delay too  long in terminating the contract in response to the employees  breach

[2011] 1 ILR 490

SUBRAMANYAH AJ KARUPPIAH V BANK NEGARA MALAYSIA
CA- PUTRAJAYA - ADMINISTRATIVE LAW

The officers  and employees of BNM  are appointed under S15 of the Central  Bank of
Malaysia  Act 1958 . They are subject to the terms and conditions of service as may be determined by BNM.The appellant did not fall within the categories of public officers or employees in Art 132, and thus was not eligible for the protection and benefits under the General Orders.

[2011] 3 ILR 40

YUSOF AHMAD V TENAGA NASIONAL BERHAD
INDUSTRIAL COURT KUALA LUMPUR

Issue: Complainant alleging non-compliance of Article 19 of the CA.
Held: Dismissing the application.
This matter should have been brought up as a trade dispute under Sect.26 of the Act as opposd to a complaint of non-compliance under Sect.56

[2011] 3 ILR 1

PORT VIEW SEAFOOD VILLAGE SDN. BHD V ROCELYN TUBAL RANESES
High Court Sabah &Sarawak , KK David Wong Dak Wah J [KII (A)-20-2010-II] 22nd November 2010

LABOUR LAW: Wages - Service Charge- Whether a part of  Wages- Labour Ordinance ( Sabah) s2

The pivotal words in s2(3) of the Labour Ordinance were "work done in respect of his contract of service". As long as payments were made because of that service, they fell within the definition of wages. In the present case, the "service charge" was payment made for "work done in respect of his contract of service"" (PC in Peter Anthony Pereira & Anor v Hotel Jayapuri Bhd & Anor [1987] 1 CLJ 14;1987 CLJ (Rep)  12 PC

CD ISSUES

THE LAW ON CONSTRUCTIVE DISMISSAL

Western Excavating v Sharp [1978] IQB  761

If the employer is guity of conduct which is a significant breach going to the root of the contract of  employment, or that the employer no longers intends to be bound  by one or more of the essential terms of the contract , then the emp[loyee is entitled to traet himself as discharged  from any further performance.

This case was cited with approval in the Supreme Court Case of  Wong Chee Hong v Cathay Organisation [1988] 1 CLJ 45 WHERE IT WAS STATED AS FOLLOWS:-

The common law has always recognised the right of an employee to terminate his contract of service and therfore to consider himself as dischrged  from further obligation if the employer is guilty of such breach  as effects  the foundation of the contract or if the employer has evinced or shown an  intention  not to be bound by it any longer.

(ii) A single act or series of acts.

Lewis v Motorworld Garages  Ltd. [1986] I.C.R. 157

(iii) Implied term of trust and confidence

It is now trite law that  the function of the Industrial court is to attain social justice and not legal justice.

Dr. A. Dutt v Assunta Hospital  [1981] LNS 5.

ON POOR PERFORMANCE

POOR PERFORMANCE- PERKHIDMATAN YANG TIDAK MEMUASKAN
PEKERJA PERCUBAAN-PROBATIONER
SALAHLAKU- MISCONDUCT

S33 (1) IRA 1967

ENABLES ANY PARTY BOUND BY A COURT'S AWARD TO APPLY TO THE COURT FOR A DECISION ON ANY QUESTIONS THAT ARISES AS TO THE INTERPRETATION OF THE SAID AWARD.

VIKAY TECHNOLOGY SDN. BHD ANG ENG SEW [1993] 1 ILR 90

AS LONG AS THE EMPLOYER IS REASONABLY SATISFIED THAT THE EMPLOYEE IS NOT SUITABLE FOR THE JOB HE MAY BE REMOVED. SUITABILITY IS NOT JUST BASED ON PERFORMANCE OF THE EMPLOYEE BUT ALSO HIS CONDUCT, BEHAVIOUR AND ATTITUDE IN RELATION TO THE JOB HE IS EMPLOYED.

SOON SENG INDUSTRIAL PRODUCTS SDN.BHD METAL INDUSTRIES EMPLOYEES UNION

[1988] 2 ILR 219

IT IS WELL ESTABLISHED THAT A PROBATIONER HOLDS NO LIEN ON THE POST.

TAN SENG LEE V UNIVERSAL DRILLERS SDN. BHD

ILR 2009 1 PAGE 112

GENERALLY THE COURT WILL NOT INTERFERE IN A DECISION BY THE EMPLOYER WHO TERMINATES A CONTRACT DURING THE PROBATIONARY PERIOD ON THE GROUND THAT HE IS DISSATISFIED WITH THE WORKMAN IF THAT OPINION HAS BEEN FORMED BONA FIDE.