| BULLETIN 04/2016 | |
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LATEST CASES (ILR Issue 4 of 2016) SUBJECT INDEX ADMINISTRATIVE LAW Judicial review - Dismissal of police officer - Whether valid - Whether extraneous and irrelevant factors taken into account - Whether affidavit submitted bore no relationship to charge - Whether allegations in affidavit amounted to new charge - Failure to afford opportunity to explain or rebut allegations - Whether breach of fundamental principles of natural justice - Whether dismissal null and void - Federal Constitution, art. 135(2) Judicial review - Municipal officer - Transfer to different department - Issue of transfer brought to attention of State Assemblyman - Whether amounted to breach of discipline - Whether dismissal appropriate - Whether in accordance with Public Officers Regulations (Conduct and Discipline) Rules 1995 - Whether applicant given reasonable opportunity to be heard - Whether respondents guilty of bias - Local Government Act 1976, s. 16(4) - Federal Constitution, art. 135(2) Judicial review - Registration of trade union - Appeal to Minister under s. 71A Trade Unions Act 1959 to cancel registration - Whether appeal decided before appellant filed application for judicial review - Whether Minister had duty to make decision - Whether s. 71A restricts judicial review process - Trade Unions Act 1959, s. 12 Rules of natural justice - Dismissal of police officer - Whether valid - Whether extraneous and irrelevant factors taken into account - Whether affidavit submitted bore no relationship to charge - Whether allegations in affidavit amounted to new charge - Failure to afford opportunity to explain or rebut allegations - Whether breach of fundamental principles of natural justice - Whether dismissal null and void - Federal Constitution, art. 135(2) CONTRACT Specific performance - Contract of service - Dismissal - Reinstatement - Whether applicant could resort to provisions of Industrial Relations Act 1967 - Whether applicant could claim for reinstatement - Whether court could order specific performance of contract of personal service - Whether applicant could only claim for damages - Specific Relief Act 1950, s. 20(1)(b) DISMISSAL Breach of company rules and policies - Carelessness - Claimant accessing, downloading and storing inappropriate and obscene material using the company's computers - Whether proven by the company - His explanations - Whether acceptable - Whether it had been serious enough to warrant his dismissal Breach of company rules and policies - Carelessness - Claimant downloading a lot of copyrighted material using the company's computers - Whether he had been aware that it had been against company policy - Claimant's position in the company - Effect of - Repercussions of his actions - Whether he had exposed the company to the leakage of sensitive information - Business of the company - Whether his actions had justified his dismissal Breach of company rules and policies - Negligence - Whether the claimant had been negligent in signing the Agreement - Evaluation of the evidence adduced - Claimant's defence - Whether acceptable - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Claimant allegedly accessing, downloading and storing inappropriate and obscene material using the company's computers - Whether proven by the company - Evidence adduced - Evaluation of - Claimant not denying it - His explanations - Whether could be accepted - Whether it had constituted a serious misconduct - Factors to consider - Effect of - Whether the company had been reasonable in dismissing him - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5) Misconduct - Claimant downloading a large volume of Rapidshare activity containing a lot of copyrighted material - Whether he had been aware of the company's policy on the same - Whether his explanations had been acceptable - Factors to consider - Whether the claimant by his conduct had clearly violated the policies of the company and prejudiced its welfare - Business of the company - Effect of - Whether the charge had been proven against him - Whether it had been serious - Whether his dismissal had been justified Misconduct - Whether the claimant had signed the Agreement without the authority of the respondent company - Factors to consider - Evidence adduced - Effect of - Whether charges proven by the respondent company - Whether there had been condonation by the respondent company - Delay of 23 months by the respondent company before taking action against the claimant - Effect of - Whether the claimant's dismissal had been justified - Whether dismissal without just cause and excuse Misconduct - Whether the claimant had signed the Agreement without the authority of the respondent company - Whether it had been a serious misconduct - Perusal of the respondent company's DI procedures and policies - Effect of - Position, length of service and service record of the claimant with the respondent company - Whether the respondent company had behaved reasonably towards him - Whether his dismissal had been justified - Whether dismissal without just cause and excuse Performance - Poor performance - Whether proven by the company - Factors to consider - Whether the company had followed the required procedures - Evidence adduced - Evaluation of - Whether the company had been reasonable in dismissing him DOMESTIC INQUIRY Charges - Whether defective for lack of particulars - Factors to consider - Whether the claimant had understood the nature of the alleged charges against him - Whether he had been prejudiced by the missing information - Effect of - Whether the charges had needed to be as precise as that in a criminal trial Procedural impropriety - Whether the claimant had been condemned unheard - Claimant unfit to attend the DI due to his medical condition - Whether the rules of natural justice had been followed - Factors to consider - Whether he had been fairly dismissed Procedural impropriety - Whether the claimant had been given a fair hearing - Factors to consider - Effect of - Whether he had abstained from participating in the DI - Evidence adduced - Whether the respondent company had been right in proceeding with the DI ex-parte - What the respondent company should have done EVIDENCE Adverse inference - Whether an adverse inference ought to be drawn against the claimant for failing to call Dato' Ranbir - Factors to consider - Evidence Act 1950 s. 114(g) Burden of proof - Whether it had been the respondent company's or the claimant's to discharge - Factors to consider Documentary evidence - Findings of the Appeal Panel - Appeal Panel going against the recommendations of the DI and dismissing the claimant - No reasons adduced for the same - Effect of - Whether the decision to dismiss the claimant had been arrived at fairly - Factors to consider Documentary evidence - Findings of the Appeal Panel - Whether it had taken into consideration all salient points and considered all pertinent matters in coming to its decision - Evidence adduced - Evaluation of - Whether it had arrived at a correct decision - Factors to consider - Whether the claimant's dismissal had been carried out correctly Documentary evidence - Findings of the Domestic Inquiry - Whether it had been valid - Factors to consider INDUSTRIAL COURT Remedies - Reinstatement - Whether suitable to award in the circumstances - Claimant's present age and service record with the respondent company - Other factors to consider LABOUR LAW Trade union - Registration - Registration of second respondent as in house union - Appeal to Minister to cancel registration - Whether appeal decided before appellant filed application for judicial review - Whether second respondent's membership overlapped with scope of appellant's membership - Whether law places an investigative role on first respondent - Whether provisions under Trade Unions Act 1959 and Industrial Relations Act 1967 read in isolation - Trade Unions Act 1959, s. 71A PUBLIC SERVANTS Dismissal - Dismissal of police officer - Whether valid - Whether extraneous and irrelevant factors taken into account - Whether affidavit submitted bore no relationship to charge - Whether allegations in affidavit amounted to new charge - Failure to afford opportunity to explain or rebut allegations - Whether breach of fundamental principles of natural justice - Whether dismissal null and void - Federal Constitution, art. 135(2) TRADE DISPUTE Collective Agreement - Commencement date - Determination of - Industrial Relations Act 1967, s. 30(7) Collective Agreement - Terms and conditions of the CA - Article entitled "maximum" - Whether the union's proposal to pay out on a 'personal to holder' basis had any merit - Factors to consider - Evaluation of case laws - Effect of - Whether the existing article in the CA ought to be maintained - Factors to consider - Effect of Collective Agreement - Terms and conditions of the CA - Article on annual bonus - Whether the union's proposal of three months annual bonus plus variables had been reasonable - Factors to consider - Past practice of the company Collective Agreement - Terms and conditions of the CA - Article on annual increments - Whether the union's proposal of 8% per annum or a minimum of RM100, in addition to an annual increment based on performance, over and above the agreed minimum rate of annual increment should be allowed - Factors to consider - Whether the existing article ought to be retained Collective Agreement - Terms and conditions of the CA - Article on annual leave - Whether the company's proposal for a two-tier leave system ought to be allowed - Whether it would be discriminatory to future employees - Factors to consider - Effect of - Whether the company's proposals had been more favourable than those granted in similar industries Collective Agreement - Terms and conditions of the CA - Article on annual leave - Whether the union's demand for additional days being granted to long serving employees, as an act of commendation should be allowed - Factors to consider Collective Agreement - Terms and conditions of the CA - Article on competency allowance - Whether the union's proposal had been acceptable - Factors to consider - Evidence adduced Collective Agreement - Terms and conditions of the CA - Article on duration - Commencement date of the CA - Determination of - Industrial Relations Act 1967, s. 30(7) Collective Agreement - Terms and conditions of the CA - Article on mileage claims - Whether the union's proposals could be adopted - Factors to consider - What would be a reasonable sum to award Collective Agreement - Terms and conditions of the CA - Article on overtime - Whether the company's proposal on this article ought to be allowed - Factors to consider Collective Agreement - Terms and conditions of the CA - Articles on overtime, work on rest days and work and paid public holidays - Determination of 'rate per hour' - Whether it should include 'yearly bonus' - Factors to consider - Past practice of the company Collective Agreement - Terms and conditions of the CA - Article on paid public holidays - Whether the company's proposal to reduce its paid holidays to one (1) day on the eve of a major festival, for those employees celebrating, had been acceptable - Factors to consider Collective Agreement - Terms and conditions of the CA - Article on salaries and sick leave - Whether the company's proposal had been acceptable - Factors to consider - Whether the company had been able to afford it Collective Agreement - Terms and conditions of the CA - Article on salary adjustment - Whether the union's proposal of 13% had been too high - Factors to consider - What would be a reasonable percentage to award - Whether the company had the financial ability to pay Collective Agreement - Terms and conditions of the CA - Article on working hours - Whether the working hours of plant employees should be the same as that of head office staff - Factors to consider - Effect of - Whether the existing article in the CA ought to be maintained Whether the company had been involved in union busting activities - Evidence adduced - Effect of - Whether proven by the union TRADE UNION Whether there had been a contravention of ss. 5(1)(d)(i) and (ii) of the IR Act - Perusal of the provisions in that section - Evidence adduced - Factors to consider - Effect of - Whether the union had made out its case against the company - Industrial Relations Act 1967, ss. 5(1)(d)(i) and (ii) Whether there had been a contravention of s. 4(1) of the Industrial Relations Act - Whether the company had interfered with, restrained or coerced the employee in the exercise of his rights to form and assist in the formation of and to join a trade union and to participate in its lawful activities - Evidence adduced - Factors to consider - Effect of - Whether the union had made out its case against the company - Industrial Relations Act 1967, s. 4(1) Whether there had been a contravention of s. 4(3) of the Industrial Relations Act - Whether the company had supported any trade union of workmen by financial or other means with the object of placing it under its control or influence - Evidence adduced - Factors to consider - Effect of - Whether the union had made out its case against the company - Industrial Relations Act 1967, s. 4(3) WORDS & PHRASES Rate per hour - Determination of - Whether should include 'yearly bonus' - Employment Act 1955, s. 2 |
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