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CASE HIGHLIGHTS |
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LIM SZE KAI v. HKBN JOS (MALAYSIA) SDN BHD Abstract – An employer cannot unilaterally impose new, less favorable terms of employment, especially those that include illegal clauses, such as a non-competition clause that violates s. 28 of the Contracts Act 1950, as in this case. An employee’s refusal to accept such unlawful changes does not constitute a valid reason for termination. LABOUR LAW: Employment – Termination – Employer sought to vary employee’s existing terms of employment – Variation less favourable to employee visà- vis original terms of employment – Employer unilaterally and arbitrarily inserted and added in new terms of employment which were not contained in original terms – Clauses on competition and non-solicitation – Employee reluctant to sign – Employer unilaterally interpreted employee’s non-signing as intention not to continue employment – Employee terminated from employment – Whether employee’s non-signing of revised terms and conditions amounted to intention to no longer be bound by his contract of employment – Whether gave rights to employer to terminate employee – Whether employee dismissed with just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5) CONTRACT: Employment contract – Terms and condition – Variation – Restraints of trade – Employer sought to vary employee’s existing terms of employment – Variation less favourable to employee vis-à-vis original terms of employment – Employer unilaterally and arbitrarily inserted and added in new terms of employment which were not contained in original terms – Clauses on competition and non-solicitation – Employee reluctant to sign – Employer unilaterally interpreted employee’s non-signing as intention not to continue employment – Employee terminated from employment – Whether employee’s non-signing of revised terms and conditions amounted to intention to no longer be bound by his contract of employment – Whether gave rights to employer to terminate employee – Contracts Act 1950, s. 28 GOLDA FIONA P ARONY PEREIRA v. MCD BACK OFFICE SDN BHD Abstract – In cases of restructuring plan leading to termination, the employer must show how the restructuring was done, how many employees were affected by the exercise and whether there was a distribution of work to the remaining employees in order to demonstrate the employer was really in need of cutting down the number of employees to overcome financial strain. LABOUR LAW: Employment – Dismissal – Restructuring plan – Employee terminated without prior discussion or formal meeting – Employer cited restructuring plan as reason for employee’s termination – Whether employer had demonstrated how restructuring exercise was done and how many employees were affected by exercise – Whether there was distribution of work to remaining employees – Whether employer had shown it was really in need of cutting down employees to overcome financial strain – Whether employee dismissed with just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5) LABOUR LAW: Employment – Dismissal – Poor performance – Employee terminated due to poor performance – Employer gave choice to all staff to accept higher key performance index (‘KPI’) or end employment voluntarily – Employee chose to accept higher KPI but failed to perform or underperformed based on revised KPI – Whether poor performance established – Whether employee dismissed with just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5) LABOUR LAW: Employment – Dismissal – Insubordination – Employee terminated due to insubordination – Allegations that employee disobedient and disregarded comments and advice from superiors to improve performance – Whether insubordination proven – Whether employee dismissed with just cause or excuse – Industrial Relations Act 1967, ss. 20(3) & 30(5) |
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LATEST CASES (ILR Issue 3 of 2025) |
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APPEAL/REVIEW UPDATES |
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1. Saharunzaman Barun v Perodua Sales Sdn Bhd & Anor And Other Appeals [2025] 1 ILR 449 (COA) overruling High Court decision in Perodua Sales Sdn Bhd v Mahkamah Perusahaan Malaysia & Anor [2022] CLJU 2371; [2022] 1 LNS 2371 |
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