Important Industrial and Higher Court Decisions of the Past Year

A One Day Training Session

Overview

The past year was an important year in terms of employment law

developments where our Malaysian Industrial and Higher Courts

continued to deliver a significant number of decisions on topics ranging

from poor performance, the right to reorganise due to artificial

intelligence, termination due to mental health issues, workplace

harassment, sexual harassment, Code of Conduct breaches as well on

what is the correct test to apply in evaluating claims for constructive

dismissals and forced resignations. Many of these decisions constitute

landmark decisions.

Over one day, we will share answers to these latest employment court

decisions of the past year with the ultimate objective of ensuring you

continue to proactively manage your employee issues in line with the

latest legal/IR developments.

These court awards have been summarised with key learning points for your quick understanding and application to your organisation’s HR/IR processes.

What Answers You Will Gain from Attending This Session

You will find answers to the following questions/issues in our

presentation of the latest awards from the past year:

Poor Performance and Fixed Term Contracts

1) How important is it to have an independent panel within a

company evaluate the details of an allegation of poor performance

in demonstrating that the decision to dismiss the poor performing

employee was objective and impartial? (Landmark Court of

Appeal Decision)

2) Does a new incoming supervisor have the right to make an

assessment that an employee is under-performing where her

previous superiors found her to be performing? Or would this be

seen as an act of harassment?

3) Would extending a PIP process to give an under-performing

employee another chance to improve enough to justify to the

courts that an employee was fairly terminated?

4) Can a senior manager who agreed to be converted from

permanent employment to fixed-term contract be later justifiably

terminated at the end of his fixed-term contract that had already

been renewed a total of more than 3 times?

5) Is it sufficient to notify an employee who had been under

prolonged medical leave that his fixed-term contract will not be

renewed upon its expiry without adducing any reason?

Constructive Dismissal and Forced Resignations

6) Is the ‘contract test’ still the applicable test to be used by the courts

in evaluating a claim for constructive dismissal or are the Industrial

Courts empowered to apply the ‘unreasonableness’ test?

(Landmark Federal Court decision)

7) Would the actions of an employer in informing an employee that

his job function had become redundant and subsequently offering

him a mutual separation scheme amount to a forced resignation in

the eyes of the law? (Landmark Court of Appeal Decision)

Board of Directors and Shareholder Disputes

8) Can a company director with an almost 40% shareholding in the

organisation be deemed a ‘workman’ entitled to recourse before

Malaysia’s Industrial Court? (Landmark Court of Appeal

decision)

9) Must a separate due process be followed when terminating a

director who holds an executive position within the company or

would a directors resolution removing the said director be sufficient

justification for termination from employment? (Landmark Court

of Appeal decision)

Reorganisations

10) How do courts evaluate the justification that artificial

intelligence had significantly diminished many aspects of a

manager’s role, resulting in his retrenchment? (Landmark Court

of Appeal decision)

11) Can the justification that the company had decided on a

‘franchise’ business model resulting in an employee’s redundancy

be a valid reason for retrenching the said employee?

12) Can an organisation justify the retrenchment of an employee

on the basis that it was undergoing a cost-cutting exercise and had

selected him to be retrenched on the basis that he did not speak

Mandarin?

13) Are oral promises made at a company townhall that there

would be no further unpaid leave schemes/salary cuts legally

binding in the eyes of the courts?

Code of Conduct Breaches

14) Can a CFO who was wrongly charged with breaching her

authority limits and later found to have been unfairly dismissed by

the Industrial Court now sue her organisation for defamation via

the civil courts? (Landmark decision)

15) How do the courts determine whether an employee had

made a genuine error in disclosing confidential information to a

business partner or whether he was aware that his actions are a

breach of confidentiality?

16) Can an employee be justifiably dismissed on the basis of

conflict of interest for granting a rebate to his father's company

despite it being within his authority limits to do so?

17) Can submitting a false/unentitled overtime claim be regarded

as a MACC Act breach?

18) What is the test applied by the courts in establishing an

employee’s outside work interests amount to a conflict of interest?

Sexual Harassment, Workplace Harassment and Mental Health

Issues

19) Where a complaint of sexual harassment is lodged against a

senior management member of an organisation, what must an

organisation do in ensuring that it is able to demonstrate that the

investigation process was conducted impartially? (Landmark

decision)

20) How do the courts determine whether an allegation raised by

an employee that he is suffering from depression and anxiety due

to workplace harassment is genuine or whether the employee was

trying to escape an allegation that he was a poor performer?

21) Can the act of touching a Muslim female employee on her

shoulder be regarded as sexual harassment?

22) What is the best practice for managing an employee who

alleges that he is suffering from depression? (Landmark

decision)

Absences, Medical Leave and Domestic Inquiry Issues

23) What is the law’s current position with regard to whether it is

crucial to conduct a domestic inquiry prior to dismissing an

employee for a major misconduct?

24) What is the test for proving an employee was abusing his

medical leave entitlement privileges justifying his dismissal?

AGENDA

Day One

09.00 am to 10.00 am

Managing Poor Performance and Fixed Term Contract Issues

• How important is it to have an independent panel within a

company evaluate the details of an allegation of poor performance

in demonstrating that the decision to dismiss the poor performing

employee was objective and impartial? (Landmark Court of

Appeal Decision)

• Does a new incoming supervisor have the right to make an

assessment that an employee is under-performing where her

previous superiors found her to be performing? Or would this be

seen as an act of harassment?

• Would extending a PIP process to give an under-performing

employee another chance to improve enough to justify to the

courts that an employee was fairly terminated?

• Can a senior manager who agreed to be converted from

permanent employment to fixed-term contract be later justifiably

terminated at the end of his fixed-term contract that was renewed a

total of more than 3 times?

• Is it sufficient to notify an employee who had been under

prolonged medical leave that his fixed-term contract will not be

renewed upon its expiry without adducing any reason?

10am to 10.30 am

Constructive Dismissal and Forced Resignations

• Is the ‘contract test’ still the applicable test to be used by the courts

in evaluating a claim for constructive dismissal or are the Industrial

Courts empowered to apply the ‘unreasonableness’ test?

(Landmark Federal Court decision)

• Would the actions of an employer in informing an employee that

his job function had become redundant and subsequently offering

him a mutual separation scheme amount to a forced resignation in

the eyes of the law? (Landmark Court of Appeal Decision)

10.45 am to 11.45 am

Medical Leave and Domestic Inquiry issues

• What is the law’s current position with regard to whether it is

crucial to conduct a domestic inquiry prior to dismissing an

employee for a major misconduct?

• What is the test for proving an employee was abusing his medical

leave entitlement privileges justifying his dismissal?

11.45 pm to 12.45 pm

Board of Directors and Shareholder Disputes

• Can a company director with an almost 40% shareholding in the

organisation be deemed a ‘workman’ entitled to recourse before

Malaysia’s Industrial Court? (Landmark Court of Appeal

decision)

• Must a separate due process be followed when terminating a

director who holds an executive position within the company or

would a directors resolution removing the said director be sufficient

         justification for termination from employment? (Landmark Court

         of Appeal decision)

Lunch

2.00 pm to 3.30 pm

Managing Reorganisations and Code of Conduct Issues

• How do courts evaluate the justification that artificial intelligence

  had significantly diminished many aspects of a manager’s role,

  resulting in his retrenchment? (Landmark Court of Appeal

  decision)

  
  

• Can the justification that the company had decided on a ‘franchise’

  business model resulting in an employee’s redundancy be a valid

  reason for retrenching the said employee?

  
  

• Can an organisation justify the retrenchment of an employee on

  the basis that it was undergoing a cost-cutting exercise and had

  selected him to be retrenched on the basis that he did not speak

  Mandarin?

  
  

• Are oral promises made at a company townhall that there would be

  no further unpaid leave schemes/salary cuts legally binding in the

  eyes of the courts?

  
  

• Can a CFO who was wrongly charged with breaching her authority

  limits and later found to have been unfairly dismissed by the

  Industrial Court now sue her organisation for defamation via the

  civil courts? (Landmark decision)

  
  

• How do the courts determine whether an employee had made a

  genuine error in disclosing confidential information to a business

  partner or whether he was aware that his actions are a breach of

  confidentiality?

3.45 pm to 5 pm

Code of Conduct Breaches (continued), Workplace Harassment

and Sexual Harassment

• Can an employee be justifiably dismissed on the basis of conflict of interest for granting a rebate to his father's company despite it being within his authority limit to do so?

• Can submitting a false/unentitled overtime claim be regarded as a MACC Act breach?

• What is the test applied by the courts in establishing an employee’s outside work interests amount to a conflict of interest?

• Where a complaint of sexual harassment is lodged against a senior management member of an organisation, what must an organisation do in ensuring that it is able to demonstrate that the investigation process was conducted impartially?

  (Landmark decision)

• How do the courts determine whether an allegation raised by an employee that he is suffering from depression and anxiety due to workplace harassment is genuine or whether the employee was trying to escape an allegation that he was a poor

  performer?

• Can the act of touching a Muslim female employee on her shoulder be regarded as sexual harassment?

• What is the best practice for managing an employee who alleges that he is suffering from depression? (Landmark decision)