WELTEX CASE 1998 1 LNS 258

In the case of Weltex Knitwear Industries Sdn Bhd  vLaw Kar Toy [1998] 1 LNS 258 it was stated by Abdul Kadir Sulaiman  J.

"...where the factum of dismissal  is in dispute it is for the workman to establish that he was dismissed by the employer."

STANDARD OF PROOF

TELEKOM MALAYSIA KAWASAN UTARA V KRISHNAN KUTTY SANGUNI NAIR & ANOR
[2002] 3 CLJ 314
( Theft of Company property)
COURT OF APPEAL  The Industrial Court must not be burdened with the  technicalities concerning the different standards of proof or the rules of evidence or procedure that are applied ina court of law.The Industrial Court must be allowed to conduct its proceedings as a'court of arbitration' with the necessary flexibility to arrive at a decision...

standard of proof is the civil standard- balance of probabilities

imbangan kebarangkalian - balance of probabilities

melangkaui batasan keraguan- beyond reasonable doubt

mahkamah timbangtara--Court of arbitration

MIsconduct

Wong Yuen Hock v  Hong Leong Assurance [1995] 3 CLJ 344

the function of the Industrial  Court in dismissal cases on a reference under S20 is twofold;

firstly, to determine whether the misconduct complained of  by the employer has been established and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal.

CD

AFINDI RAMLI & ANOR [2012]1 ILR 262

w/r transfer order is in breach of  fundamental terms of contract

Based on the terms of the Claimant's contract of emplyment, the Claimants were not employed to be stationed permanently at Genting Highlands exclusively but were subjected to transfer based on the transfer clause.

PRIMA FACIE

WELTEX KNOTWEAR INDUSTRIES SDN BHD LAW KAR TOY & ANOR [1998]  1 LNS 258

All dismissal is prima facie without just cause or excuse.

FORCED RESIGNATION

RG CHANDRASEGARAN V LIPO CORPORATION [2012] 1 ILR 241

Based on the principles found in Harpers Trading (M) Sdn Bhd Butterworth v Kesatuan Kebangsaan Pekerja Pekerja Perdagangan [1988] 2 ILR 314 the resignation letter was not voluntary but due to the pressure and threat imposed upon him.

Sulaiman Ismail, Industrial Court Penang

B. R. Ghaiye- p 712

And as to absence of employee without permission B.R Ghaiye at page 712 said


" No employee can claim as a matter of right leave of absence without permission and when there might not be any permisision for the same. Remaining absent without any permission is therfore, gross violation of discipline..."

This issue was discussed in the case of Pan Global Textiles Bhd Pulau Pinang v Ang Beng Teik [2002] 1 CLJ 181 ( at page 187)

TAN SEE GUAN V PEMBINAAN INFRA E & J SDN. BHD

2011 4 ILR

Issue - Fixed Term Contract

Once it is established that there is a fixed term contract, the dissolution of the contract upon reaching the expiry date of the fixed term or upon any extension of that expiry date would spell the end of the Claimants tenure with the Company

[see M Vasagam Muthusamy v Kesatuan Pekerja-Pekerja Resorts World, Pahang & Anor ]

GENERAL CONTAINERS S/B

GENERAL CONTAINERS S/B V YIP SIEW  LING [1994] 2 ILR 912 (AWARD NO 418 OF 1994)

It is a trite principal of Industrial Law that only a workman who has been dismissed by his employer may seek the remedies available under S20 of the IRA 1967.

[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