Cases | Recent Decisions

2021

Court of Appeal

Facts: The Respondents were dismissed from employment by TNB, on the allegation that they had conducted unauthorized modification works at the five-foot way of one premise that led to excessive voltage thereby causing a disruption in the supply of electricity throughout the said neighbourhood. They filed a representation for unfair dismissal, which the Industrial Court via the Award No. 497/2019 held that TNB had failed to prove the allegation against the Respondents on a balance of probabilities. As such, the Respondents’ dismissal were held to be without just cause and excuse. TNB had then filed an application to judicially review the said Award of the Industrial Court, which application was dismissed by the High Court. TNB further appealed to the Court of Appeal to quash the High Court’s decision.

Held: The Court of Appeal held that there is no merits in TNB’s appeal, as TNB was unable to establish any valid ground warranting the appellate intervention – in particular, TNB failed to prove as to how the Industrial Court was erred in drawing an adverse inference against TNB for its failure to call the material witness, one Mr. Chen (i.e. the Complainant who had allegedly identified the Respondents as the persons who conducted the unauthorized modification works at his house) to give evidence before the Industrial Court. Hence, the High Court’s Judgment and the Industrial Court’s Award are upheld, with costs ordered against TNB.

Facts: The Claimant, a Senior Manager of Insight Administration Team, was  dismissed by the Company on several allegations of unprofessional and abusive behaviors towards the staff, in particular, that the Claimant had acted in breach of the Company’s policy on Global Workplace violence. The Industrial Court via the Award No. 881/2019 held that the Claimant’s dismissal was with just cause and excuse, as the Claimant’s conduct in the entire circumstances of this case was inconsistent with the trust and responsibility reposed in him by the Company in the employer-employee relationship between them. The Claimant, represented by Muhendaran Sri, filed a Judicial Review application at the High Court to challenge the said Award, on the grounds inter alia that the Industrial Court had committed errors of law and/or fact when the learned Chairman had completely failed in its fundamental duties by:

(a) failing to conduct any investigation/analysis/ evaluation on the facts and evidence presented by both parties, but had instead merely copied and pasted the submissions made by both parties, in coming to its decision in the said Award;

(b) failing to make any finding of facts on the issue of whether the Claimant had indeed committed the misconducts for which he was dismissed; and

(c) failing to provide any reason/justification as to why the learned Chairman arrived at the decision in the said Award.

The High Court dismissed the Claimant’s application and upheld the said Award. The Claimant thereafter appealed to the Court of Appeal.

Held: The Court of Appeal held that there were no appealable errors committed by both the Industrial Court and the High Court. Hence, the appeal was dismissed with costs and the Industrial Court Award No. 881/2019 stands.

Facts: The Claimant was dismissed by the Bank for poor performance. The Industrial Court held that the dismissal was without just cause and excuse for the reasons, among others that, the Bank had failed to comply with its own Guidelines on several aspects in the placement of the Claimant under the Consequence Management Programme (i.e. a Performance Improvement Plan) and that the Bank had failed to provide the necessary assistance, guidance, coaching and training to help the Claimant to improve her performance. The Bank filed a Judicial Review Application to challenge the Industrial Court Award, which application was dismissed by the High Court on 5th December 2019, on the basis that there were no errors committed by the learned Chairman of the Industrial Court in arriving at his decision. Unsatisfied with the decision, the Bank filed an appeal to the Court of Appeal to quash the High Court’s decision. 

Held: The Court of Appeal came to the unanimous decision that there is merits in the Bank’s appeal, as the Industrial Court had erred in arriving at its decision. The Court allowed the Bank’s appeal with costs, and the High Court’s Judgment and the Industrial Court’s Award No. 2822/2018 are thereby quashed.

High Court

Facts: Both the Respondents (a security guard and a general worker) were alleged to have breached the Appellant’s (Company) instructions and Guidelines regarding to Covid 19 during MCO period. The Appellant failed to pay the Respondents their half month salary due to the Appellant’s finding of guilty of the alleged wrongdoing against the Respondents after the Domestic Inquiry.

The Respondents then filed a complaint against the Appellant, and the Labour Department ordered the Appellant to pay the Respondents the unpaid salary.

This is an application by the Appellant for a leave to appeal out of time, as the Appellant contended that based on the representation made by the officer of the Labour Department, they had time to file an appeal until 27th November 2020, as the 14-days’ time limit only started to run from the day that they received the Order on 13th November 2020, even though the Order is dated 6th November 2020.

However, as clearly shown from the evidence enclosed by the Respondents, the Appellant’s Assistant Manager who was presence in the Labour Department on 6th November 2020, has acknowledged and received the Order dated 6th November 2020 on the day itself when the Order was handed down by the Labour Department.

Further, the Respondents (as represented by Messrs. Muhendaran Sri) submitted that it is clearly laid down under Order 55 rule 2 Rules of Court 2012 that the mandatory time-limitation to bring an appeal to the High Court is 14 days from the date of the decision; and the Labour Department has no jurisdiction to grant an extension of time without an application by the Applicant to seek for a leave for an extension of time to appeal.

Held: The High Court rejected the Appellant’s application with RM6,000.00 costs subjected to allocator and the appeal is dismissed.

Facts: This case emanates from the Industrial Court Award No. 706 of 2020, wherein the Industrial Court held that the Company’s dismissal of Respondent 2 (represented by Muhendaran Sri) was without just cause and excuse as Respondent 2 was not redundant. The Industrial Court thereby awarded compensation in lieu of reinstatement and backwages to Respondent 2. Unsatisfied with the Award, the Company sought to judicially review the said Award, on the grounds that the Industrial Court had erred in, inter alia:

(a) holding that Respondent 2 was dismissed via the Company’s letter of MSS dated 2nd January 2018;

(b) holding that Respondent 2 was not redundant; and

(c) awarding backwages to Respondent 2. It is the Company’s contention that pursuant to Practice Note No. 3 of 2019 issued by the President of the Industrial Court, backwages is only to be awarded in cases where an order of reinstatement is made. Since Respondent 2, in this case, is not ordered to be reinstated, and an order for compensation in lieu of reinstatement is made instead, the backwages should not be granted.

Held: The learned High Court Judge in dismissing the Company’s application, held that there were no errors committed by the Industrial Court in arriving at the said Award. Further, the learned Judge was unable to agree with the Company’s contention in respect of the Practice Note No. 3 of 2019 and the order of backwages. The Company’s judicial review application is thereby dismissed with costs and the said Industrial Court’s Award is upheld.

Facts: This case emanates from the Industrial Court Award No. 694 of 2020, wherein the learned Chairman of the Industrial Court held that the Company’s series of actions to the Claimant, i.e. Theva Pragash Kanapathy (represented by Muhendaran Sri) constitute a constructive dismissal:

(a) failure to pay the employer’s contributions towards the Claimant’s EPF and SOCSO; and failure to remit the Claimant’s contributions towards his EPF, SOCSO, and PCB to the relevant authorities, despite having deducted the corresponding amount from the Claimant’s monthly salaries;

(b) failure to pay the Claimant’s monthly salaries in full, and delayed in making the payment;

(c) failure to provide the Claimant with an office space after the Company shifted to a new premise, and deleted the Claimant’s email which he was actively using for work-related matters;

(d) attempted to convert the Claimant’s status from a permanent employee to a Consultant on contract basis, via a backdated offer letter cum with a pre-prepared notice of resignation to be executed by the Claimant.

The Industrial Court further held that the Claimant’s dismissal was without just cause and excuse. The learned Chairman thereafter handed down a Rectification Award to rectify the quantum of the backwages awarded to the Claimant.

The Company sought to judicially review the said decision of the Industrial Court, on the grounds inter alia that the Industrial Court had erred in:

(i) failing to appreciate that the Company’s failure in respect of the matters specified in paragraphs (a) and (b) above was not intentional, but due to the Company was suffering from financial difficulties and cash flow problems. The Company further contends that the failure regarding the payment of salaries did not affect the Claimant alone, but all the employees of the Company;

(ii) failing to appreciate that the Claimant had failed in his duties to submit the sales tracking report, and was absent from work for about 3 months.

(iii) handing down the Rectification Award without any basis or justification, and that the Industrial Court had acted ultra vires its jurisdiction in doing so.

Held: The learned High Court Judge held that the learned Chairman of the Industrial Court did not commit any errors in coming to its decision in both the Awards. Hence, the Company’s Judicial Review application is dismissed with costs, and both the Awards of the Industrial Court are thereby upheld.

Industrial Court

Facts: The Claimant (an Associate), who was employed under a 4-years’ CIMB Fusion Programme (hereinafter referred to as “the Programme”, as governed under the ACA Tripartite Training Programme), had during the 1st and 2nd year of the Programme been employed by the Company, and had been employed by CIMB during the 3rd year, and she was supposed to report back to the Company for her 4th year of service under the Programme. However, the Claimant (as represented by Messrs. Muhendaran Sri) claimed that she was unfairly dismissed by the Company, as she had upon reaching the end of her third year of service, been informed by the Company that she was removed from the Programme jointly by the Company and CIMB. Instead, the Claimant was offered with a fixed term employment contract for 12 months, which she had refused to accept. The Company then informed the Claimant that no offer letter would be issued to her.

Held: It is the Industrial Court’s finding that there was no dismissal by the Company, and therefore the Claimant’s case was dismissed. The Court held that CIMB Fusion Programme was merely a training programme offered to the trainees, with separate fixed term employment contracts offered by the Company and CIMB respectively, instead of an employment contract by itself. It is up to the Company’s or CIMB’s discretion to assess the Claimant’s performance and decide whether to offer employment after the end of each fixed term contract.  The Company was under no obligation to employ the Claimant under a third employment contract after the Claimant’s second employment contract with CIMB has expired, and the Company and CIMB had already decided to remove the Claimant from the Programme. Further, the Court held that the element of warnings with regards to poor performance and/or behavioral issues before the termination of employment is not essential in this case as, at the very first place, the Claimant involves is a trainee instead of a permanent employee. Secondly, the Court is also of the view that at the time of the Claimant’s removal from the Programme, the Claimant was employed by CIMB, therefore any performance evaluation done during the Claimant’s employment with CIMB did not involve the Company, as the third fixed term employment contract between the Claimant and the Company was not even executed by the time of her removal from the Programme.

Facts: The Claimant, who was employed as an Assistant Manager under a 4-years’ CIMB Fusion Programme with PricewaterhouseCoopers (hereinafter referred to as “the Programme”, as governed under the ACA Tripartite Training Contract), had during the 1st and 2nd year of the Programme been employed by PricewaterhouseCoopers (“PwC”), and had been employed and promoted by the Bank as a Senior Associate during the 3rd year, and she was supposed to report back to PwC for her 4th year of service under the Programme. However, the Claimant (as represented by Messrs. Muhendaran Sri) claimed that she was unfairly dismissed by the Bank, as she had upon reaching the end of her third year of service, been informed by the Bank that the Bank and PwC had jointly decided to remove her from the Programme as she had not met the performance expectations under the Programme.

Held: It is the Industrial Court’s finding that there was no dismissal by the Bank as the fixed term contract between the Claimant and the Bank had naturally expired by effluxion of time, and therefore the Claimant’s case was dismissed. The Court held that CIMB Fusion Programme was merely a training programme offered to the trainees, with separate fixed term employment contracts offered by PwC and the Bank respectively, instead of an employment contract by itself. It is up to PwC’s or the Bank’s discretion to assess the Claimant’s performance and decide whether to offer employment after the end of each fixed term contract.  PwC was under no obligation to employ the Claimant under a third employment contract after the Claimant’s second employment contract with the Bank has expired, and PwC and the Bank had already decided to remove the Claimant from the Programme. Further, the Court held that the element of warnings with regards to poor performance and/or behavioral issues before the termination of employment is not essential in this case as, at the very first place, the Claimant involves is a trainee instead of a permanent employee. Secondly, the Court is also of the view that it was incumbent for the Claimant, being a trainee to satisfy the Bank as to her performance and job suitability; and the Court is reluctant to interfere with the management prerogative of the Bank’s Training Organisation in deciding on the method of carrying out the training and the way of assessing the trainee’s performance.

Facts: The Claimant was put under a six-months’ probation when he was employed by the Company as a Manager. However, he was terminated before the end of his probation. The Claimant claimed that he was unfairly dismissed by the Company.

On the other hand, the Company avers that the termination of the Claimant’s employment is because of the Claimant’s unsatisfactory work performance and misconduct. The issue before the court is whether it is sufficient for the communication of the termination of the Claimant’s service to be carried out by an email without giving the reasons for the termination.

Held: The Industrial Court held that since the Claimant’s dismissal is undisputed , the burden is on the Company to provide firm reasons to justify its action of dismissing the Claimant. However, the Company failed to adduce sufficient evidence before the Court to prove the allegations against the Claimant of his rude attitude towards his reporting superior, and his poor performance in order to justify the Claimant’s dismissal as with just cause or excuse.

The Court ruled that the Company should have:

  1. taken a proper process to inform the Claimant about the issue concerning of his rude attitude (if it appears to be true), i.e. by issuing Show Cause letter; and
  2. taken some follow-ups on the issue of the Claimant’s poor performance (if it appears to be true),

in order to provide the Claimant an opportunity to explain and defend himself.

Thus, the Court held that the Company’s action in dismissing the Claimant without having a proper process of dealing with the allegations against the Claimant, and without providing the Claimant with explanation and reasons of the same, amounting to a deprivation of the Claimant’s opportunity to defend himself which is a clear violation of the principle of fairness, and the unfair dismissal against the Claimant has violated the Claimant’s right to livelihood which is a fundamental human right to life.

The Industrial Court awarded the Claimant (represented by Messrs. Muhendaran Sri) 12 months backwages with 10% deduction for his post dismissal earning totaling to RM86,400.00, without compensation in lieu of reinstatement as the Claimant was still under probation at the time of his dismissal.

Facts: This is a complaint of non-compliance of the Industrial Court Award No. 694 of 2020 dated 1st June 2020 (“the said Award”) by the Claimant who was represented by Messrs. Muhendaran Sri. The Company was ordered to pay RM221,000.00 less statutory contributions (“the award sum”) to the Claimant within 60 days from the day of the said Award, as the Industrial Court held that the Claimant was constructively dismissed by the Company. However, the Company has failed to pay the award sum in compliance with the said Award.

Held: The Court unanimously allowed an order of compliance by the Company.

Facts: This is an Interim Award for the Company’s application under Section 29(a) of the Industrial Relations Act 1967 and Rule 12 of the Industrial Court Rules 1967 for the Company to be substituted with DMIA (M) Sdn. Bhd. as the Respondent in the current claim of constructive dismissal by the Claimant. The Claimant, represented by Muhendaran Sri, opposed the said application.

Held: The learned Chairlady Puan Anna Ng Fui Choo in dismissing the said Application, held that it is settled law that to succeed in an application to substitute a party, the court has to be satisfied that the party named in the reference does not fully represent the interest of the employer. More importantly, the consideration is whether or not the substitution of the proposed party is necessary to make adjudication itself effective and enforceable. The Court observed that one of the most relevant issue (if not the most important) in a dismissal case like this, is who the employer is. Thus, it was entirely for the Claimant to decide and name who had entered into a contract of employment with him and who had dismissed him. The Court further held that the Company’s application at this stage, to argue that it has been inaccurately named as a party as it was not the Claimant’s employer, is not only improper but also lagged for not applying to challenge the Ministerial reference in the High Court. If it was pleaded in the Company’s Statement in Reply that the Company was not the Claimant’s employer, the Company could have lead evidence to prove the same at the trial.

Lastly, the Court expressed that it does not view the Company’s substitution application as being made in bona fide, extremely minor and that it will not prejudice the Claimant in any way. The learned Chairlady opined that the Claimant’s case may suffer serious repercussions if the wrong employer is named, because this may lead to the Claimant’s case being dismissed and that will definitely prejudice him. Further, in dismissing this application, the Court does not impose liabilities on a party who is not proven to be the employer, more so when the burden of proof in this case, being a claim of constructive dismissal, is on the Claimant.

Facts: This is an application for an order of non-compliance of the Industrial Court Award No. 706 of 2020 dated 1st June 2020 (“the said Award”) by the Claimant who was represented by Messrs. Muhendaran Sri. In the said Award, the Claimant who claimed that he was unfairly dismissed by the Company via a letter of Mutual Separation Scheme has been awarded to be paid by the Company RM106,425.48 less statutory contributions to the Claimant (“the award sum”), within 60 days from the day of the award. However, the Company has failed to make payment in compliance with the said Award.

The Company did not dispute the fact of its failure to pay the award sum, instead the Company claimed that it has suffered financial incapacity to comply with the said Award caused by the loss suffered by the Company for the year 2017 to 2019, following the financial impact after the Covid 19 pandemic since March 2020.

On the other hand, the Claimant pleaded that the Company has filed a Judicial Review application and has obtained a Conditional Stay Order from the High Court, where the Company was instructed to deposit the award sum to the Claimant’s solicitor’s client account to be held on trust, but the Company nonetheless failed to do so without contacting and informing the Claimant’s solicitors for the reason of non-compliance. Further, the Claimant submitted that financial incapacity per se is not special circumstances.

Held: The Court held that there is a special circumstance to justify the Company’s non-compliance of the said Award, as the Company’s financial position should not be taken into consideration as a ground for non-compliance. Thus, the Court orders the Company to comply with the said Award and pay the award sum within 14 days from the date of this award.

Facts: The Claimant (Sous Chef) as represented by Messrs. Muhendaran Sri, had after receiving an Employee Warning Notice, alleging him that he had failed to follow the Company’s Standard Operating Procedure (SOP) in the preparation of food and he was trying to cheat, attended a meeting with the Company’s officers.

The Claimant claimed that he was forced to resign during the meeting with the threat that if he did not do so and proceeded with the domestic inquiry, he would be blacklisted, and his salary and balance annual leaves would be forfeited.

It is undisputed that:

(a) the Claimant had tendered his resignation on the same day after the meeting, which was also accepted by the Company on the very same day; and

(b) the Claimant had on the following day after tendering his resignation letter, written a letter to the Company to retract his resignation letter, stating that he was forced to resign during the meeting, but was rejected by the Company in its reply to the Claimant 6 days later.

The Company, on the other hand, maintained that the Claimant had resigned voluntarily to avoid possible disciplinary action, as he had admitted to his failure to follow the SOP with his own handwriting on the Employee Warning Notice stating that he “will follow SOP standard”.

Held: The Industrial Court held that the Claimant was forced to resign by the Company and that the Company had failed to prove on balance of probabilities that such forced resignation which tantamount to a dismissal was with just cause or excuse, based on the finding of facts that:

  1. the SOP which was purportedly breached by the Claimant was never produced before the Court to explain the legitimacy of the Company’s allegation against the Claimant;
  2. the evidence produced by the Company did not suffice the Court in establishing that the investigation of the Claimant’s alleged non-compliance of SOP was indeed carried out by the Company;
  3. the elements of the Claimant’s alleged dishonesty were never proven by the Company;
  4. the Company was already prepared to dismiss the Claimant during the meeting, as the Company was at that time already armed with information of the Claimant’s past disciplinary misconduct and a computer was also provided for the Claimant to prepare his resignation letter after the meeting; and
  5. during the meeting, the Claimant was not only demanded to tender his resignation with a 24 hours’ notice, but he was also put under an impression that he will face with a potential damage to his career as a chef of more than 20 years within the hotel industry by ensuing the disciplinary process.

The Court after taking consideration the Claimant’s post dismissal earnings, awarded the Claimant backwages and compensation in lieu of reinstatement totalling RM106,407.00 only less  statutory deduction.

2020

Court of Appeal

Facts: The Claimant claimed that he was unfairly dismissed by the Company effective 31.05.2013. However, the Company argued that there was no dismissal took place on 31.05.2013 but only on 01.06.2013, as the notice of termination informed the Claimant that his last working day shall be on end month of May. The Industrial Court held that the dismissal took place only on 01.06.2013 and as such there was no dismissal on 31.05.2013 as complained by the Claimant. Consequently, the Claimant’s claim has been struck off for want of jurisdiction since the Claimant’s representation was said to be premature. The Claimant, represented by Muhendaran Sri, filed a Judicial Review Application to High Court to challenge the Industrial Court’s decision. The High Court held that the decision of the Industrial Court is tainted with error of law, irrationality and unreasonableness. The effective date of the Claimant’s dismissal was indeed on 31.05.2013 and thus the issue of want of jurisdiction which is the basis for the Industrial Court to strike off the Applicant’s representation is no longer tenable. The Applicant’s representation is clearly not premature. The High Court allowed the Judicial Review Application and ordered that the Claimant’s case be remitted back to Industrial Court for a re-hearing for an adjudication based on the merits, i.e. whether the Claimant’s dismissal was without just cause and excuse.

Dissatisfied with the High Court’s decision, the Applicant (i.e. the Company) filed an appeal to the Court of Appeal.

Held: The Court of Appeal dismissed the appeal and upheld the High Court’s decision.

Facts: Following the High Court’s decision which dismissed the Company’s appeal and upheld the Labour Court’s decision in favour of the 66 workers, the Company filed a Notice of Motion for leave to appeal to the Court of Appeal against the said High Court’s decision. The Company raised only one (1) ground in support of its Motion, namely there is an important question of law for determination of the Court of Appeal which has never been decided by any courts of law before, that: “Samaada majikan yang bukan ahli kesatuan majikan (employer’s union) yang di sini ialah “Malaysian Agricultural Producers Association” hendaklah membayar gaji kepada pekerja-pekerjanya yang menjadi ahli National Union of Plantation Workers mengikut kadar mengikut kadar yang terkandung dalam perjanjian kolektif yang telah ditandatangani di antara National Union of Plantation Workers dengan Malayan Agricultural Producers Association?”

Held: After hearing the counsel for the Company and Messrs. Muhendaran Sri, who represented the 66 workers, the Court of Appeal came to a unanimous decision that there is no novel issue of law to be determined by the Court and the dispute of the case is facts-based.  The Court of Appeal thereby dismissed the Notice of Motion with costs.

Facts:  The Company filed a Judicial Review Application against the Industrial Court’s Award, where the learned Chairman held that the punishment of dismissal imposed on the Claimant was too harsh (at the Industrial Court’s proceedings, the Claimant admitted guilty to the misconduct and shown remorse, but disputed on the proportionality of his punishment). The Company contended at the High Court inter alia that the Industrial Court had erred in law in granting a lump sum of RM 42,336.00 to the Claimant (which is the amount of retirement benefits which the Claimant would be entitled to, had him not been dismissed by the Company). The High Court dismissed the Company’s application and upheld the Industrial Court’s decision. Dissatisfied with the decision, the Company filed an appeal to the Court of Appeal.

Held:   The Court of Appeal finds merits in the Company’s appeal and ordered that the High Court Order be set aside.

[P.S.: This is the first case where Muhendaran Sri conducted the hearing of the appeal by way of E-Appellate (via Zoom)].

High Court

Facts: The Respondents were alleged to have conducted unauthorized electrical works at the five-foot way of one premise that led to excessive voltage which caused a disruption in the supply of electricity throughout the said neighbourhood. They were dismissed and the Industrial Court held that the Applicant had failed to prove the charges against the Respondents on a balance of probabilities. As such, the Applicant’s action of terminating the Respondents was tantamount to a dismissal without just cause and excuse. The Industrial Court ordered the Company to pay to the 2nd Claimant, represented by Messrs. Muhendaran Sri, RM 75,732.00. The Applicant filed an application to judicially review the said Award of the Industrial Court.

Held: The High Court dismissed the Applicant’s application and upheld the Award of the Industrial Court.

Facts: The Claimant, represented by Messrs. Muhendaran Sri, is alleged to have utterred abusive, bullying and discriminative words toward her subordinates. An inquiry was held by the Company and the Claimant was subsequently dismissed.

The Industrial Court held that the dismissal of the Claimant was without just cause or excuse as the Company had failed to discharge the burden of proving that the Claimant was guilty of the allegations. The Company filed a Judicial Review Application to the High Court to challenge the said Industrial Court’s Award on the basis that the learned Chairman of the Industrial Court had committed an error when he refused to grant the postponement of the hearing as requested by the Company’s Human Resource Manager (for the reason that their previously Solicitors have discharged themselves from acting for the Company and the newly appointed Solicitors of the Company was not available to attend the hearing as scheduled.)

Held: The High Court held that there was no errors committed by the learned Chairman of the Industrial Court in arriving at the said Award. Hence, the Company’s Judicial Review Application is dismissed with costs.

Facts: Food Union, who is represented by Muhendaran Sri, filed a judicial review application to challenge the Industrial Court Award No. 75/2019 dated 7th January 2019 in respect of the decision to incorporate Article 4.5 into the first ever Collective Agreement entered between Food Union and Ban Heng Bee Rice Mill. Article 4.5 reads “In the event the Company is the aggrieved party, it shall take up the matter with the union or the Union Works committee representative who is tasked with all the Company’s directives pertaining to discipline, increasing productivity and all other matters. Should the union or its Union Works Committee representative fail in this endeavor, the Company shall, in its absolute right, seek the replacement of the Union Works Committee member (s) with more competent personnel who are able to effectively cooperate with the Company regarding the same”. The grounds for the judicial review application are among others that Article 4.5 is not in line with the provisions of the IRA 1967, it would infringe the rights of the union members and lead to Union busting, and that it would give the Company’s absolute rights to replace any members of the Union Works Committee.

Held: The High Court held that Article 4.5 is worded rather too wide and it could easily be abused by the Company. Hence, the Court allowed Food Union’s application and granted the order of Certiorari to quash Article 4.5 from the Industrial Court Award No. 75/2019.

Facts:   The Claimant, who was the Chief Operating Officer / Executive Director of the Company claimed constructive dismissal on the basis that the Company had circulated a memorandum to all the Company’s personnel, which announced the son of the Company’s Chairman/ Managing Director who was 27 year-old, to take over a considerable portion of the Claimant’s responsibilities without the prior knowledge and consultation with the Claimant and which is in breach of the Limits of Authority set by the Board of Directors. The Company had purportedly undertaken a “restructuring” which was only the rearrangement of the Claimant’s roles and responsibilities. The Industrial Court held that the Claimant, represented by Muhendaran Sri, has succeeded in establishing that the Company had breach the essential implied term of the contract of employment, that is of preserving the relationship of mutual trust and confidence between employer and employee, and ordered the Company to pay the Claimant the sum of RM 2,455.515.00 together with the Company’s contributions towards the Claimant’s EPF (18%). Unsatisfied with the Industrial Court’s decision, the Company filed a judicial review application to the High Court to quash the said Award.

Held:    The High Court ruled that there is no merit in the Company’s application and the Industrial Court’s Award is thereby upheld.

Facts: On 1st January 2016, the Applicant’s employment was terminated by the Hospital by way of statutory retirement on the basis that the Applicant’s current age of 82 was way above the minimum retirement age as stipulated under the Minimum Retirement Act Age 2012, coupled with the allegation that the Applicant had not been able to comply with his clinical services at the Hospital. The Industrial Court held that the Applicant’s termination was lawful by way of retirement pursuant to Section 4 of the Minimum Retirement Age Act 2012 upon the Applicant not only attaining but surpassed the minimum retirement age of 60. The Industrial Court further held that it would be completely unnecessary for the Court to consider the issue of whether the Claimant was no longer providing the Clinical Services with the Hospital. Messrs. Muhendaran Sri, in representing the Applicant, filed the present application at the High Court for an order of certiorari to quash the said Industrial Court Award.

Held:    The High Court allowed the Applicant’s application on the grounds that Section 4 of the Minimum Retirement Age Act 2012 does not apply to the Applicant, due to the fact that there was an assurance given by one Mother Mary Xavier from the Hospital to the Applicant that he could work in the Hospital for as long as he wishes. The learned High Court Judge further held that the existence of the said assurance was a finding of fact made by the High Court in the previous suit involving the same parties (please see the case of Dr. Satwant Singh Gill v. Hospital Assunta [1998] 4 CLJ 47, which finding was subsequently upheld by the Court of Appeal in Civil Appeal No.: W-04-31-1998. Hence, the High Court in the present application is bound to follow the said finding of fact.

Facts:   The Claimant was dismissed from employment by the Bank for the alleged misconduct of having instructed/forced his team members to channel referral fees to the Claimant’s brother and wife even though both of them were not the actual referral of the sales. The Industrial Court held that there was no concrete evidence tendered before the Court, other than the Claimant’s purported admission in the Interview Statement (which the Industrial Court had come to the finding that the said admission was involuntary), to show that the Claimant was guilty of the alleged misconduct. Accordingly, the Claimant’s dismissal was held to be without just cause and excuse. The Bank challenged the Industrial Court’s decision by filing a judicial review application to the High Court.

Held:    The High Court held that there was no error committed by the learned Chairman of the Industrial Court in arriving at the said Award, and that there is no tenable ground upon which the said decision and the findings of facts of the Industrial Court ought to be disturbed.

Industrial Court

Facts: The Claimant, represented by Messrs. Muhendaran Sri, claimed that he was unfairly dismissed by the Company through the Mutual Separation Agreeement (MSA) that he had involuntarily signed. The Claimant was informed by the Head of Human Resource (COW-1) that the Group Human Resources would be undergoing restructuring and that the Claimant’s position would not exist, rendering him redundant. COW-1 then offered the Claimant a Mutual Separation Package. Thereafter, a MSA was prepared for the Claimant and the Director of Human Resource of Hong Leong Group (COW-2) had repeatedly asked the Claimant to sign and at the same time to tender his resignation. The Claimant eventually sign and accept the MSA under duress.

Held: The Industrial Court came to the findings that the Company’s Senior Officers, i.e. COW-1 and COW-2, had misrepresented to the Claimant that he had been found redundant during the restructuring exercise within the Group Human Resource, and thus a MSP was being offered to him so he could walk away from the Company without the stigma of retrenchment being attached to him. The Court further held that the Claimant was clearly led into believing the misrepresentations of COW-1 and COW-2 and did indeed act to his detriment when he signed the MSA relying on the said misrepresentations.The Court agrees with the submission of the Claimant’s Counsel that the MSA was signed by the Claimant due to consistent and persistent misrepresentation of redundancy made by COW-1 and COW-2 and the intense pressure exerted by both COW-1 and COW-2 on the Claimant to accept the MSA.

Under the circusmtances, the Court finds that the MSA dated 5th February 2018 was not entered into by the Claimant on his own free volition. The Claimant had indeed been dismissed by the Company and such a dismissal was made without just cause and excuse. The Court awards and directs that the Company pay to the Claimant a total sum of RM 184,000.00, including the statutory contributions deducted from the award sum as well as its own share towards the contributions to the relevant statutory bodies (including all interests and/or dividends payable on such statutory contributions from the date of the Claimant’s dismissal).

Facts:   The Claimant, a Personal Finance Advisor, is dismissed by the Bank on the ground of misconduct, for having made false representation in respect of eleven (11) Credit Card Applications processed by her (which were received by the Claimant via emails) when she chopped ‘Originals Sighted’ on the application forms and the supporting documents despite the original documents are not sighted. The Bank alleged that the Claimant’s conduct had breached the Bank’s e-SPI on Cards: Operational Guidelines and Procedures which stipulates that original documents must be sighted. The Claimant, represented by Messrs. Muhendaran Sri, contends that the said e-SPI apply only to ‘Normal Application’, namely walk-in applications, and did not apply to applications by way of email.

Held:    The Court held that the Bank has proven on a balance of probabilities that the Claimant was guilty of making false representation in respect of the eleven (11) Credit Cards application when she chopped ‘Originals Sighted’ despite did not sight the originals. The Court further held that the this constitutes a just cause and excuse for the Bank to dismiss the Claimant’s employment. The Claimant’s claim is therefore dismissed.

 

Facts:   The Claimant was offered employment Radio Announcer under a one-year contract, which was subsequently extended for another one year until 31st March 2016. Prior to the expiry of the contract, the Claimant was offered another contract of employment for three (3) years as Radio Announcer effective 1st April 2016 to 31st March 2019. Sometime in mid year 2017, the Claimant was instructed by the Company to set up a company in order to continue her employment as Radio Announcer with the Company and that a new contract would be entered into by the Company with the Claimant’s newly set up company. The Claimant had no choice but to follow instruction and set up a company called “LKD Empire Sdn. Bhd”. On 27th December 2017, the Company entered into a “Radio Announcer Performance Agreement” with LKD Empire Sdn. Bhd. for the Claimant to provide her service as Radio Announcer, for the period of 1st December 2017 until 31st March 2019. By a letter dated 1st August 2018, the Company terminate the “Radio Announcer Performance Agreement”. The Claimant, represented by Messrs. Muhendaran Sri, claimed that she has been unfairly dismissed by the Company by its termination of the said Performance Agreement. The Company contends that there is no dismissal as the Claimant was not a ‘workman’ of the Company, but an independent contractor and thus, she is not entitled to bring a claim under Section 20 of the Industrial Relations Act 1967.

Held:    The Court held that based on the terms of the “Radio Announcer Performance Agreement”, the duties and responsibilities of the Claimant as Radio Announcer which is an integral part of the Company’s business, the fact that the Claimant was the only person, and no one else, to provide the services to the Company under the said Agreement and that the Claimant was bound to provide her service exclusively to the Company, the Claimant indeed falls under the definition of a ‘workman’. The Court further held that the Company’s termination of the said Agreement tantamount to a dismissal of the Claimant without just cause and excuse. The Court also addressed the Claimant’s argument that the nature of her employment was permanent even though her contract was for a fixed term. The Court agreed with the Claimant’s contention due to the fact that the nature of her duties and responsibilities was permanent and the fact that the Company hired someone else to take over and perform the Claimant’s role after her dismissal. The Court awarded RM 133,000.00 to be paid by the Company to the Claimant.

Facts: The Company, represented by Muhendaran Sri, was the Sub-Contractor for the Engineering, Procurement and Construction of 3 Large Scale Solar Power Plant Projects and the Claimant was employed by the Company as a Material Manager, particularly for the Project at Jasin, Melaka, on a contract basis for a period of 12 months. Due to an internal restructuring, the Claimant’s employment was transferred to a wholly-owned Subsidiary of the Company, i.e. ITRAMAS RE Services Sdn. Bhd. effective 1st August 2017. The Claimant’s initial contract was extended by ITRAMAS RE Services Sdn. Bhd. effective 3rd July 2018 to 1st October 2018 as the Jasin Project is yet to be completed. The Claimant’s contract was further extended effective 1st November 2018 to 31st January 2019 as the Jasin Project was near completion and this would enable the Claimant to perfect the documentation and the records of the Project. On 19th December 2018, the Claimant received a letter of end of contract, whereby he was informed that the Company was giving him one-month notice of termination and that his contract would end on 18th January 2019. The Claimant claimed that he was dismissed by the Company without just cause and excuse.

Held: The Court held that the Claimant’s contract was a genuine fixed term contract, dependant on the successful completion of the Jasin Project. Evidence remained unrebutted that the Jasin Project had been fully completed at the time the Company ended the Claimant’s contract. More crucially, the Claimant did not even plead in his Statement of Case that his employment was actually a permanent one and the Company’s witnesses were also not challenged that the fixed term contract of the Claimant was not genuine. As the Court finds that the Claimant’s employment contract was a genuine fixed term contract, the question of there being a dismissal does not arise. The Claimant’s claim is thereby dismissed.

Facts: The Claimant (Group Chief Marketing Officer) claimed that he has been constructively dismissed by the Company on 20th August 2018, based on four (4) grounds. Firstly, the Company failed to remit the Claimant’s portion of EPF, SOCSO and PCB (which had been duly deducted from the Claimant’s monthly salary) to the relevant authorities, since March/ April 2017. The Company had also failed to make the employer’s contributions towards the Claimant’s EPF and SOCSO since March/April 2017. Secondly, since August 2017, the Company had delayed the payment of the Claimant’s salary and started the practice of paying salaries by way of instalments without the Claimant’s consent. From December 2017, the Company had even failed to pay the Claimant’s salary in full, resulting in overdue salaries to the Claimant. Thirdly, when the Company shifted to a new premise in January 2018, they failed to provide the Claimant an office in the new premise. In addition, the Company deleted the Claimant’s official email in July 2018. The Claimant contends that both of these incidents obstructed the performance of his duties. Fourthly, on 9th July 2018, the Company attempted to convert the Claimant’s permanent employment to contractual basis for one-year, by way of a letter of offer backdated to 28th May 2018 coupled with a notice of resignation backdated to 1st May 2018 to be signed off by the Claimant.

Held: The Industrial Court came to the decision that the Claimant has established all the four (4) grounds which entitled him to claim for constructive dismissal. The Court held that the purported reason for the Company to delay the remittance of the Claimant’s EPF, SOCSO and PCB namely the purported cash flow problems, was unacceptable, as the payment of EPF, SOCSO and PCB are not only the fundamental terms of an employment contract but they are also statutory obligations under the respective Acts of Parliament. The Court also applied the trite law that non-payment of salaries as and when it falls due is a fundamental breach of an employment contract. By deleting the Claimant’s email and failing to provide him with a workplace, the Company was held to have breached the basic entitlement of an employee which evinced refusal to keep him any longer in the Company’s employment.

On the other hand, the Company failed to prove the allegations of absence from work and failure to submit sales tracking report against the Claimant. Hence, the Company’s dismissal of the Claimant was without just cause and excuse. The Court awarded the Claimant, represented by Muhendaran Sri, RM221,000.00 less statutory contributions (please also refer to the Rectification Award) as backwages and compensation in lieu of re-instatement.

Facts: The Claimant, who was represented by Muhendaran Sri, claimed that he was dismissed by the Company via a letter of Mutual Separation Scheme (“the MSS letter”), whereas the Company contends that the said letter was an offer and that they never terminated the Claimant but the Claimant simply abandoned his employment and walked out by his letter dated 10th January 2018.

Held: The Industrial Court came to the finding that the Company’s contention as well as the testimonies of their two (2) witnesses were wholly inconsistent with the contents of the MSS letter, which states in no uncertain terms that his “last day of service with the Company shall be 2nd January 2018” – which never given the Claimant any room to agree or disagree with the ultimatum. The Company’s clear inaction and lack of response upon receiving the Claimant’s letter dated 10th January 2018 points incontrovertibly to the fact that the Claimant’s employment was indeed terminated by the Company on 2nd January 2018. It was further held that there must be a legal basis for an employer to offer an employee a MSS. The Court held that the Company’s purported reason for offering the Claimant MSS, namely the current state of shrinking/ steep deteriorating in the paging business since it shut down in 2015, was implausible based on the evidence before the Court. In the absence of cogent reasons for the termination of the Claimant’s employment, the Court accordingly finds that the Claimant’s dismissal was without just cause and excuse. The Court orders the Company to pay RM 106,425.48 less statutory contributions to the Claimant.

Facts: The Claimant claimed that he has been constructively dismissed and forced to resign by the Company, on the purported ground that the Company has put him in a position such that he had to resign and that the transfer to Bukit Jelutong was not bona fide. The Company, represented by Muhendaran Sri, contends that there was no dismissal but a mutual separation, as the Claimant has signed a Separation Agreement and has taken the benefits provided therein.

Held: It is trite law that a company has the right to transfer its employees. The Claimant has failed to prove that the transfer was made for the purposes of harassing or victimizing him. The Court held that there was ample evidence to show that the Claimant did not carry out his tasks well, thereby justified the transfer, namely to monitor his performance and to assist him to improve. The Court further held that the Claimant has failed to discharge the burden of proving that he was forced to sign the Separation Agreement. In addition, there was no evidence to establish any repudiatory breaches of conduct by the Company nor any breaches of the Claimant’s contract of employment. Accordingly, the Court dismissed the Claimant’s case.

Facts:   This is an application filed by Affin Bank Berhad (“the Bank”) to set aside the Summons to produce documents (issued against the Bank by Muhendaran Sri on behalf of the Claimant), i.e. the GIA Report.

Held:    The Court is of the view that despite having satisfied the elements that the GIA Report does exist and that the same is within the Bank’s possession, the Claimant must also satisfy the Court on the all-important criterion of the relevancy of the said document. The Court held that the documents presented by the Claimant had not shown precisely what is in the GIA Report that will be highly relevant and which will be relied on by the Claimant to advance her case or to damage the case of the Bank. “Fishing expedition” must be avoided at all times. The Court further held that the Claimant had not sufficiently rebutted the Bank’s assertion that the GIA Report contains confidential information relating to other employees and the workings of the Bank’s department, and had failed to convince the Court that the production of the GIA Report is absolutely necessary for the achievement of justice between the parties. Hence, the Court granted order in terms of the Bank’s application and the Summons to produce documents is thereby set aside.

Facts:  The Claimant was employed by the Company as the Head of Business Development/Project Management Office, and was also appointed as “Pentadbir” for 2 subsidiaries of the Company on a temporary basis until the right candidate was identified. The Claimant was paid RM 2,000 allowance per month for his “Pentadbir” role in each of the subsidiaries. On 1st June 2018, there was restructuring including the roles of the Claimant, where he was asked to only focus on business development effective 5th July 2018. Further, the Company removed the Claimant’s roles as “Pentadbir” for the 2 subsidiaries and the payment of allowance ceased. Subsequently, the Claimant was informed that he was to be transferred to an Associate Company effective 15th December 2018, which the Claimant failed to report duty at the Associate Company as instructed. The Company had given another opportunity to the Claimant to report for duty at the Associate Company effective 1st February 2019. Yet, the Claimant again did not do so, but sent a letter to the Company claiming constructive dismissal and walked out of employment with effect from 4th February 2019. Despite the Claimant’s disobedience in following the Company’s instructions and his conduct of abandoning his employment, the Company gave a final opportunity to the Claimant to report for work at the Associate Company latest by 18th February 2020, which the Claimant did not do so. The matter was then escalated to the Industrial Court where the Company was represented by Muhendaran Sri.

Held: The Court held that the Claimant’s own evidence established that he had no issues or complaint regarding the removal of his roles as “Pentadbir” or the cessation of the payment of allowance. As such, it is clear that the reason which led to the Claimant to claim constructive dismissal was the Company’s decision to transfer him to the Associate Company, which was well-within the Company’s rights to do so pursuant to the Claimant’s contract of employment and the law on transfer. Further, the Claimant did not produce any evidence to show that the Company had acted mala fide or with ill-intention in transferring the Claimant. Hence, the Court came to the conclusion that no dismissal is proven and therefore the issue of whether the dismissal was with just cause and excuse does not arise. The Claimant’s claim was thereby dismissed.

Facts:  The Claimant, represented by Muhendaran Sri, claimed that she was constructively dismissed by Klinik Revin as its Clinic Manager, on the basis that Klinik Revin failed to pay her salary for a few months and had changed the locks to her office thereby prevented her from entering the Klinik’s premise. Dr. Revinthranath (as the sole proprietor of Klinik Revin) and one Klinik Revin Sdn. Bhd. were later added as the 2nd and the 3rd Respondent via 2 separate Interim Awards. It is the 1st and the 2nd Respondent’s case that the Claimant was not an “employee” of the Klinik, and that she was merely doing work for the Klinik in her capacity as the wife to the 2nd Respondent. They further contended that she was not paid “salary” but the monies transferred to her account were for their joint expenditure/household expenses as husband and wife, and that the EPF contributions made by the Klinik for the Claimant were as a form of savings for their retirement.

Held:   The Industrial Court held that the Claimant had failed to produce a shred of evidence to prove that she was an indeed an employee of the Klinik, such as the correspondences where she would have signed of as “Clinic Manager, Klinik Revin”, or records of her own salary slips and vouchers. The Court proceeded to hold that even if the Claimant was found to be a workman, she had failed to prove that she had been constructively dismissed. The Claimant had not adduced evidence to prove that she had brought the purported breach of failure to pay salaries to the 1st and/or the 2nd Respondent’s attention demanding them to rectify the same, which they had failed to do so. The Court also held that there was inordinate delay by the Claimant in claiming constructive dismissal having waited for more than four months. The Claimant’s case is thereby dismissed accordingly.

Facts: The Applicant made an application to set aside the Subpoena issued by the Claimant’s Solicitors, Muhendaran Sri, subpoenaing the Applicant as a witness in the present matter. The grounds for this application are, among others, that the subpoena is issued with mala fide and its service on the Applicant was illegal and/or improper, and that the Applicant has no personal knowledge on the matters relating to the Claimant’s dismissal by the Company, thus would not be in a position to give any material evidence.

Held:   The Industrial Court finds that the Claimant has satisfied the test of materiality of a witness with regards to the Applicant, as laid down in the case of Wong Sin Chong & Anor v. Bhagwan Singh & Anor. The Court further came to the finding that the attempts of the Claimant’s Solicitors to serve the Subpoena on the Applicant is evident from the correspondences tendered before the Court, and thus there is no issue of delay or service at the 11th hour. The Court further held that the Applicant was well aware, as early as in February 2020 when the Statement of Case was filed, that he could be a potential witness in the proceedings. The learned Chairman commented that being a member of the Bar, the Applicant ought to be aware of the ethical rules governing this honourable profession, i.e. Rule 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978. The Applicant’s application is thereby dismissed and the Subpoena against the Applicant stands.

2019

Industrial Court

Facts: Claimants were alleged to have conducted unauthorized electrical works at the five-foot way of one premise that led to excessive voltage which caused a disruption in the supply of electricity throughout the said neighbourhood.

Held: The Company had failed to prove the charges against the Claimants on a balance of probabilities. As such, the Company’s action of terminating the Claimants tantamount to a dismissal without just cause and excuse.

The Industrial Court ordered the Company to pay to the 2nd Claimant, represented by Messrs. Muhendaran Sri, RM 75,732.00.

Update: This matter is pending the decision of Judicial Review at High Court.

Messrs. Muhendaran Sri represented the Company in this case.

Facts: The Claimant claimed that he was terminated by the Company over a conversation with his direct superior on some work issues, where some derogatory words had allegedly been uttered to the Claimant.

Held: Looking at the statement that claimed to be uttered to the Claimant, the Claimant has been given a choice whether to work or not. The Court did not consider it as a dismissal because such statement in itself, does not construe a dismissal or connote a termination of employment. Mere allegations, vague suggestions and insinuations are not enough. However, the Court is in opinion that such an utterance was not even been proven by the Claimant. The Claimant had failed to adduce any evidence to show dismissal by the employer and the Court holds that the Claimant had resigned voluntarily and on his own accord. The Claimant’s case is hereby dismissed.

Facts: The Claimant was alleged to have committed several misconducts and was subsequently dismissed by the Company.

Held: The Industrial Court held that he Claimant’s conduct in the entire circumstances of this case was inconsistent with the trust and responsibility reposed in him by the Company in the employer-employee relationship between them. As the termination of employment in this case has been found to be with just cause or excuse, the claim herein is hereby dismissed.

Update:  This matter is now pending the decision of Judicial Review at the High Court, wherein the Claimant had challenged the Industrial Court’s decision on the basis that it was erred for the Industrial Court’s failure to investigate or conduct evaluation based on the facts and evidence presented before it in deciding on the issue of whether the misconduct alleged of the Claimant had been proven against him.

Facts: The Claimant was alleged to have in his capacity as Assistant Manager of Security Services after having had knowledge of the removal of a property of the Company by an employee had failed to thoroughly investigate an incident. He had also failed to report the incident to the Human Resource Department. The Claimant was charged for his failure/misconduct and was subsequently dismissed by the Company. 

Held: The Industrial Court held that the punishment meted out to the Claimant by a dismissal without even considering other ways, means and avenues was manifestly harsh and disproportionate to the misconducts of the Claimant. The Court further stated that the issue of integrity of the Claimant is not tainted by his negligent act in the circumstances of the case. Hence the Company had failed to prove on the balance of probabilities that the dismissal of the Claimant was proportionate to the misconducts committed, hence the dismissal was without just cause or excuse.

Facts: The Claimant was alleged to have instructed/forced his team members to channel referral fees to the Claimant brother and wife even though both of them were not agents for the Bank. The Claimant was charged for his alleged misconduct and was subsequently dismissed by the Bank. 

Held: The Industrial Court stated that no concrete evidence was produced in Court by the Bank other than the purported admission in the Claimant’s interview statement to show that the Claimant was guilty of the alleged charge. Hence in view of the lack of concrete evidence, the Court held that the dismissal was without just cause or excuse. 

Update: This matter is now pending the Judicial Review Application filed by the Bank at the High Court against the Industrial Court’s Award.

Facts: The Claimant pleaded constructive dismissal on the basis the Company’s cumulatively, acts not only humiliated the Claimant but also undermined his position and authority as the Chief Operating Officer / Executive Director. the company had purportedly undertaken a “restructuring” which was only the rearrangement of the Claimant’s roles and responsibilities. This exercise removed a considerable portion of the Claimant’s responsibilities; which was handed over to the Company Chairman’s son, a 27-year-old. 

Held: The Industrial Court held that the Claimant has succeeded in establishing that the Company had breach the implied essential term of the contract of employment that is of preserving the relationship of mutual trust and confidence between employer and employee. The Court orders the sum of RM 2,455.515.00 to be paid to the Claimant, through his Solicitors, Muhendaran Sri, within 30 days from the date of service of this award.

Update: This matter is now pending the Judicial Review Application filed by the Company at the High Court against the Industrial Court’s Award.

Facts: The Claimant pleaded constructive dismissal on the basis that the clinic had failed to pay her wages and for refusing to allow the Claimant to enter the clinic to perform her duties.  The Claimant in her initial pleading had filed the suit against the proprietor and subsequently during the course of the court proceedings, had wanted to join the Company under which the clinic was registered. The application was objected to by the proprietor.

Held: The Industrial Court stated the Company had failed to extricate itself from the from the other Respondent and hence it was an appropriate situation to lift the veil of incorprporation and court joined the Company as party to the case as litigated M/S Muhendaran Sri

Update: The case is being litigated in court on the merits on Claimant constructive dismissal plea.

Facts: The Claimants were retrenched by the Bank on the basis that the outsourcing of certain aspects of their operation which had resulted in the Claimants’’ being redundant.

Held: The Industrial Court held that Bank had the managerial prerogative to reorganise its business and the outsourcing was done in bona fide manner which resulted in the redundancy of the Claimants’. 

Update: This matter is now pending the Judicial Review Application filed by the Claimants at the High Court against the Industrial Court’s Award.

Facts: The Claimant is alleged to have utter abusive, bullying and discriminative words toward her subordinates. An inquiry was held by the Company and the Claimant was subsequently dismissed.

Held: The Industrial Court held the dismissal of the Claimant was without just cause or excuse. In holding so, the Court had said whilst the words used by the Claimant against her subordinates were abusive and discriminatory and thus amounts to a major misconduct, the burden of proof was on the Company to show that such words were indeed uttered by the Claimant to her subordinates which the Company was able to do so.

Update: This matter is now pending the Judicial Review Application filed by the Company at the High Court against the Industrial Court’s Award.

Facts: The Claimant was alleged by the Bank to have misappropriate excess cash of RM9,480 .The Claimant was charged for his alleged misconduct and was subsequently dismissed by the Bank. 

Held: The Industrial Court held that the misappropriation was a serious misconduct. The Claimant was in a position of utmost responsibility for the safe keeping of the cash. And his misconduct went to the core of the integrity and credibility of the claimant. The dismissal of the Claimant was upheld.

Held: This Court is of the opinion that the Company’s selection criteria were not transparent nor codified for the Claimant to understand and appreciate and were unreasonable. In trying to depart from the LIFO rule, it was for the Company to discharge the onus of justifying the departure by adducing substantive and reliable evidence of the grounds or reasons justifying a departure, which the Company had failed to do so. Further, the Company did not show any evidence that the other Project Engineers were more qualified than the Claimant to be retained or that the Claimant could not perform the roles that they were performing. The retrenchment of the Claimant is therefore held to be without just cause and excuse.

The Court orders the sum of RM 931,291.97 to be paid to the Claimant, through his Solicitors, Muhendaran Sri, within 30 days from the date of service of this award.

Held: It could hardly be ideal for industrial harmony and in an employer/employee type situation if the workman qua employee could decide for himself when he could go on leave; and for how long; and/or choose to absent himself from work for any period of time; for any reason whatsoever. This imperative precept would particularly be so when a prior application for leave has been unequivocally refused. The Court finds that the Claimant has failed to comply with the basic obligation of a workman to be present at his employer’s work place to the render the service that he was contracted to do. He was absent without leave or the requisite authorization from the Company on the days concerned. Thus, that the Claimant has committed an employment misconduct is unequivocal. That he had breached a term fundamental to his employment contract is undeniable; and that it was serious enough to warrant his dismissal is unquestionable.

Held: The Company has lawfully terminated the Claimant by way of retirement pursuant to s. 4 of the Minimum Retirement Age Act 2012 upon the Claimant not only attaining but surpassed the minimum retirement age of 60. That being said, it would be completely unnecessary for the Court to consider the issue of whether the Claimant’s services with the Hospital was still relevant or whether the Claimant was no longer providing the Clinical Services with the Hospital for which he was contracted to as retirement takes place in due and appropriate time, under the law as in this case, under s. 4 of MRAA 2012, irrespective of performance of the employee. The Court held that the Company has proved on the balance of probabilities that the Claimant was terminated by the Company with just cause or excuse by way of statutory retirement.

Update:  This matter is now pending the Judicial Review application filed by the Claimant at the High Court against the Industrial Court’s Award.

Held: The Court finds that the Claimant’s dismissal by the Company was done without just cause or excuse. The Company’s grouse against the Claimant was nothing more than that the Claimant was a stern and strict disciplinarian and had the habit of placing everything on record and in writing, either via emails or otherwise. But it must not be forgotten that the nature of the Company’s business in the oil and gas industry, where it also involves offshore activities, poses serious safety risks and/or issues, and thus rules and regulations must be strictly adhered to. It is for this reason that the Company in fact ought to be grateful for having the Claimant as their HSE Manager. With her strict and disciplinarian approach towards, amongst others, the offshore staffs, she ought to have been deemed an asset to the Company.

The Court awards and directs that the Claimant be reinstated to her former position as the HSE Manager in the Company. The Company is to pay backwages amounting to RM 1,056,000.00 to the Claimant through the Claimant’s solicitors, Messrs. Muhendaran Sri. The Court also orders that the Company shall pay the statutory contributions deducted from the award sum as well as its own share towards the contributions to the relevant statutory bodies, including all interests and/or dividends payable on such statutory contributions from the date of the Claimant’s dismissal.

Held: The Court finds that there is ample evidence that the Claimant had failed to perform to the satisfaction of his employer over a period of six years, despite of the Bank’s efforts to guide, train and assist the Claimant to improve. The Court does not find any real connection between the Claimant’s termination for poor performance and his Union Activities to substantiate the Claimant’s claim for victimization by the Bank. Hence, the Court finds that the Claimant’s dismissal for poor performance is with just cause.

Held: The Court finds that the redundancy situation as alleged by the Company as against the Claimant has not been made out, hence the dismissal of the Claimant was without just cause and excuse.

Held:  The Court held that there was no dismissal of the Claimant as his extended fixed term contract came to an end by effluxion of time. The expiry of the extension contract spelled the end of the Claimant’s employment with the Company. The Claimant had signed and accepted the terms and conditions of the extension contract. It is the opinion of this Court that the Company genuinely intended the employment to be for a fixed-term.

Held: The Court held that the Company has proven on a balance of probabilities that the Claimant was guilty of the two charges of misconduct. The Court further held that the Claimant held a senior management position as the Head Division, Residential & Infrastructure of the Company. As such, the Claimant should have exercised a high degree of responsibility and integrity to reciprocate the employer’s trust and confidence bestowed upon him in that high level position that he held. As such, the punishment of dismissal was commensurate with the misconduct committed by the Claimant. Hence, the Court finds that the Claimant’s termination was carried out with just cause or excuse. Accordingly, the Claimant’s case is hereby dismissed.

Held: The Company’s dismissal of the Claimant by way of retrenchment was without just cause and excuse. The Court found that there was no basis in selecting the Claimant to be retrenched as there were other employees who were junior to the Claimant in years of service, but were retained by the Company to perform the duties and responsibilities which the Claimant was performing prior to her retrenchment. Further, the Court held that the fact that the Claimant’s fixed term contract was automatically renewed by the Company on each of the occasions without having to have conducted any evaluation on whether the Claimant’s roles were still be required by the Company, shows that the nature of the Claimant’s employment was permanent.

The Industrial Court ordered the Company to pay to the Claimant through her solicitors, Messrs Muhendaran Sri, RM 541,068.29.

High Court

Facts: The Claimant claimed that he was unfairly dismissed by the Company effective 31.05.2013. However, the Company argued that there was no dismissal took place on 31.05.2013 but only on 01.06.2013, as the notice of termination informed the Claimant that his last working day shall be on end month of May. The Industrial Court held that the dismissal took place only on 01.06.2013 and as such there was no dismissal on 31.05.2013 as complained by the Claimant. Consequently, the Claimant’s claim has been struck off for want of jurisdiction since the Claimant’s representation was said to be premature. The Claimant, represented by Muhendaran Sri, filed a Judicial Review Application to High Court to challenge the Industrial Court’s decision.

Held: The High Court held that the decision of the Industrial Court is tainted with error of law, irrationality and unreasonableness. The effective date of the Claimant’s dismissal was indeed on 31.05.2013 and thus the issue of want of jurisdiction which is the basis for the Industrial Court to strike off the Applicant’s representation is no longer tenable. The Applicant’s representation is clearly not premature. The High Court allowed the Judicial Review Application and ordered that the Claimant’s case be remitted back to Industrial Court for a re-hearing for an adjudication based on the merits, i.e. whether the Claimant’s dismissal was without just cause and excuse.

Update: The re-hearing of this matter at the Industrial Court has been stayed pending the appeal at Court of Appeal.

Facts: This is an appeal from Labour Court, wherein the Director General of Labour Court held that even though the Company is not a member of MAPA, however the Company has adopted and followed the terms and conditions of employments as provided in the Collective Agreement entered into between MAPA and NUPW with regards to the 66 Complainants (who are members of NUPW), on each of the occasions where the MAPA/NUPW Agreement was renewed. Hence, the terms and conditions of the MAPA/NUPW Agreement are binding on the Company, and thus the Company is liable to pay the 66 Complainants, represented by Messrs. Muhendaran Sri, the wages at the rate stipulated in the MAPA/NUPW Agreement instead of the minimum wages provided under Minimum Wages Act 2013 and also liable to pay for the ex-gratia payment.

Held: The High Court dismissed the Company’s appeal and maintained the Labour Court’s decision.

Update: This matter is now pending the Company’s application for leave to appeal at              the Federal Court.

Facts:  This is a Judicial Review Application filed by the Company against the Industrial Court’s Award which held that the punishment of dismissal of the Claimant for his misconduct was too harsh (wherein the Claimant admitted guilty and shown remorse, but disputed on the proportionality of his punishment).

Held: The High Court dismissed the Company’s application and upheld the Industrial Court’s decision, and ordered a costs of Rm 4,000.00 to be paid to the Claimant’s Solicitors, Messrs. Muhendaran Sri.

Update: This matter is now pending appeal at the Court of Appeal.

Facts: The Plaintiff in this case (i.e. the Company) filed a Writ of Summons to claim for inter alia that the 1st Defendant is liable to compensate the Plaintiff for breach of his contract, his fiduciary duty and trust; whereas the 6th Defendant is liable to account to the Plaintiff as a constructive trustee for dishonestly assiting in the breach of fiduciary duty by the 1st Defendant. Both the 1st and the 6th Defendant are represented by Messrs. Muhendaran Sri. The Plaintiff further pray for an order of Injunction against the 1st – 6th Defendants to restrain them from using the confidential information of the Company and from soliciting and contracting with any existing customer or the client of the Company.

Held: The High Court dismissed the prayer for injunction. However, the Court ordered that the 1st Defendant to pay the Plaintiff the amount of RM54,462.00 being the claim for the missing spare parts and costs of RM 35,000.00.

Update: This matter is now pending the disposal of the appeal filed by the 1st Defendant at the Court of Appeal.

Held: The High Court held that the Industrial Court has committed an error in its interpretation of one of the Article of the Collective Agreement between the Company and Honda Union by adopting the wrong approach of interpretation, wherein the right interpretation should have been both the female worker and the husband of the female worker (who are both the employees of the Company), should each be entitled to claim for the maternity benefits as provided under the Collective Agreement, and not just either one of them can claim. Hence, the High Court allowed the Union’s application and quashed the Industrial Court’s decision, and ordered a costs of Rm 4,000.00 to be paid to the Union’s Solicitors, Messrs. Muhendaran Sri.

Facts: The Applicant, represented by Messrs. Muhendaran Sri, filed a Judicial Review Application to challenge the Industrial Court Consent Award, on the ground that the Consent Award was entered without his consent and knowledge. The said Award was entered in the absence of both the Applicant (as the Claimant) and his Representative from MTUC but merely with the presence of the Company’s Solicitors, who informed the Court that the Claimant’s Representative has requested them to mention on behalf with the instruction that the Claimant has agreed to the terms of settlement as provided in the Consent Award.

Held: The Consent Award is quashed on the basis that there was no consent given by the Applicant to enter into the said Consent Award, and that the Industrial Court should be more cautious when the Claimant was not represented by Solicitors and when the Claimant was not present so as to record the Consent Award. The High Court further ordered that the Applicant’s case is to be remitted back to Industrial Court for a re-hearing by another Chairman or Division of the Industrial Court. Cost of RM 5,000.00 is awarded to the Applicant.

Facts: The Claimant was dismissed by the Bank for poor performance. The Industrial Court held that the dismissal was without just cause and excuse for the reasons, among others that, the Bank had failed to comply with its own Guidelines on several aspects in the placement of the Claimant under the Consequence Management Programme (i.e. a performance improvement plan) and that the Bank had failed to provide the necessary assistance, guidance, coaching and training to help the Claimant to improve her performance. The Bank filed a Judicial Review Application to challenge the Industrial Court Award.

Held: The High Court dismissed the Judicial Review Application and upheld the Industrial Court Award. The High Court held that there were no errors committed by the learned Chairman of the Industrial Court in arriving at his decision. Indeed, the learned Chairman of the Industrial Court has fully evaluated and appreciated the evidence and facts presented before him and came to the findings with supporting reasoning. The High Court thereby ordered costs of RM 4,000.00 to be paid to the Respondent through her Solicitors, Messrs Muhendaran Sri.

Facts: The Claimant, represented by Messrs. Muhendaran Sri, was alleged to have committed several misconducts and was subsequently dismissed by the Company.

The Industrial Court held that the Company has established the allegations of misconduct against the Claimant, and that the Claimant’s said conduct was inconsistent with the trust and responsibilities reposed in him by the Company. As such, the dismissal of the Claimant in this case was held to be with just cause or excuse.

The Claimant filed a judicial review application to High Court to challenge the said Industrial Court Award, on the basis that the learned Chairman of the Industrial Court was erred in failing to conduct any investigation or evaluation on the facts and evidence presented before it in deciding whether the allegations of misconduct has been proven against the Claimant.

Held:  The High Court held that there was no errors committed by the Industrial Court and dismissed the Claimant’s application.

Update: The Claimant has filed an appeal to challenge the High Court’s decision and the appeal is now pending at the Court of Appeal.