Court of Appeal | W-02(A)-1671-10/2023 and W-02(A)-1868-11/2023; [2026] CLJU 85 | 7 January 2026

Background

Crest Worldwide Resources, the company behind The Crest development in Kuala Lumpur, was wound up in 2019. SKN Land & Development, a contributory, applied to terminate or set aside the winding up or, alternatively, for a permanent stay. The High Court dismissed the application, ordered SKN to pay costs to the liquidator and the opposing interveners, and SKN appealed against both decisions.

Issue

Whether a stay or termination should be refused on grounds of public interest, and whether deciding the application on written submissions without oral argument denied SKN a fair hearing.

Legal principles

Under sections 492(1) and 493(1) of the Companies Act 2016, public interest is the primary consideration, including leaving the liquidator free to investigate possible offences, fraud and breaches of duty. The applicant must first show that a stay or termination is not contrary to public interest, and the application fails on that ground alone if it cannot. A fair hearing is satisfied by the right to adduce evidence and present written submissions, and the court may dispense with oral submissions.

Decision

The Court of Appeal dismissed both appeals because a stay or termination would halt the liquidator’s investigations into possible fraud on unsecured creditors and purchasers, and the application had been brought for that collateral purpose. No denial of a fair hearing arose, and any irregularity would not have affected the merits. The High Court’s costs order was affirmed. SKN was ordered to pay costs of the first appeal of RM50,000 to the liquidator, RM30,000 to the first intervener and RM2,000 each to the 30th to 33rd, 34th and 35th, 36th and 46th interveners, the 36th being EDP Consulting Group Sdn. Bhd., with no order as to costs of the second appeal. On SKN’s oral application, the RM109,465,730.80 it had paid into court as a condition of an earlier stay was ordered to be refunded to it.

Our lawyers, Srividhya Ganapathy and Eisyarmily Akhtar, represented EDP Consulting Group Sdn. Bhd., the 36th intervener and an unsecured creditor which opposed both appeals.

High Court, Kuala Lumpur | WA-22NCvC-290-05-2022; [2026] 8 CLJ 737 | 20 April 2026

Background

Mohd Sofian, the bank’s Head of Cards Business and CRM, was employed under seven successive fixed-term contracts. Two days after a disciplinary warning, with four months of the last contract left, the bank transferred him to a newly created Special Project Unit on the same grade and pay. He refused the transfer as a demotion and treated the contract as terminated; the bank then terminated his employment for failing to report. On his behalf, we argued that the successive contracts disguised permanent employment and that the transfer was a step to remove him from his substantive position in breach of his employment contract.

Issue

Whether the employment was genuinely fixed-term, whether the transfer breached the contract, what remedies the civil court could award, and whether the bank’s counterclaim for notice pay could succeed.

Legal principles

As the bank is a statutory body, section 52 of the Industrial Relations Act 1967 barred Mohd Sofian from pursuing an Industrial Court remedy. The Court rejected the bank’s argument that 7-Eleven Malaysia Sdn Bhd v Ashvine Hari Krishnan [2023] 4 CLJ 895 meant it had no jurisdiction to decide his complaint, distinguishing 7-Eleven because the employee there could have pursued an Industrial Court claim but chose not to, whereas section 52 deprived Mohd Sofian of that opportunity. It accepted our submission that it sat as a court of law applying the Contracts Act 1950 to decide contractual breach and the resulting common law damages.

On damages, however, the Court held that it was bound by the settled common law principles confirmed by the appellate courts in 7-Eleven, Fung Keong Rubber Manufacturing (M) Sdn Bhd v Lee Eng Kiat & Ors and Aetna Universal Insurance Sdn Bhd v Ooi Meng Sua: damages for breach of a fixed-term contract are confined to salary for the unexpired term, and earnings to retirement, wounded feelings, reputational damage and general damages are not recoverable.

Decision

The High Court found the contracts genuinely fixed-term, as none had an automatic renewal clause and the bank’s stated policy was to engage senior management on fixed terms. It held that the transfer exceeded clauses 10.1 and 10.2 and breached the contract, as the power of transfer did not extend to stripping him of his substantive role, even on unchanged pay: the unit had no defined job scope, no staff for him to supervise and no connection with the cards business, and had ceased to exist by the end of 2021. It awarded RM161,200, being four months’ salary and fixed allowances for the unexpired term, with RM30,000 costs, and dismissed the claims for permanent status and wider damages. The bank’s counterclaim for RM108,600 as notice pay was dismissed because the bank itself had breached the contract.

Our lawyers, Srividhya Ganapathy and Eisyarmily Akhtar, represented the plaintiff.

Status

Mohd Sofian chose not to appeal against the decision.

High Court, Shah Alam | BA-22NCvC-344-09/2021; [2026] CLJU 1166 | 20 April 2026

Background

Murugappan Tamil Selvi placed RM1.2 million in a fixed deposit in the name of her then daughter-in-law, Mogana a/p Sivaraman, to support Mogana’s application for a housing loan. The loan was rejected, and Mogana uplifted the deposit and did not return the money. When sued, she said the money had been an outright gift and counterclaimed against Murugappan Tamil Selvi and her son, Mogana’s former husband.

Issue

Whether the RM1.2 million was an outright gift or a short-term conditional loan, and whether the counterclaim was proved.

Legal principles

The burden of proving the gift lay on the defendant. Where the parties give irreconcilable accounts, the Court tests the oral evidence against the contemporaneous documents. The Court drew an adverse inference under section 114, illustration (g), of the Evidence Act 1950 from the defendant’s failure to produce her own bank statements.

Decision

The High Court found that the money was a short-term conditional loan, as the contemporaneous documents contradicted the gift account. The deposit had been built up step by step to meet the bank’s requirements, and the bank credits of the uplifted sums were marked as being for loan purposes. The defendant admitted moving the money to another account because her husband feared that the plaintiff would ask for it back. The counterclaim was dismissed on a submission of no case to answer, as there was no evidence that the money had been paid out beyond a single payment of RM25,000. Following the plaintiff’s concession on the amount, the Court entered judgment for RM900,000, with RM40,000 costs to the plaintiff, including the counterclaim, and RM7,000 costs to the son.

Our lawyers, Srividhya Ganapathy and Eisyarmily Akhtar, represented the plaintiff.

Industrial Court, Kuala Lumpur | 18(13)-4-2200-21; Award 1466/2026; [2026] 3 ILR 365 | 19 August 2026

Background

Vijayarani joined the company as a Senior Accountant in 2013 and became Vice President of Finance in 2017. After two warning letters for insubordination, the company demoted her by two ranks to Senior Accountant and reduced her salary by more than half, from RM16,016 to RM7,700. When it refused to retract the demotion, she left on 3 September 2020 and claimed constructive dismissal.

Issue

Whether a two-rank demotion with a pay cut of more than half, imposed for proven misconduct, fundamentally breached her contract, and how her misconduct should affect compensation.

Legal principles

Applying Aidiladha Sulaiman v Mahkamah Perusahaan Malaysia & Anor, by which it held itself bound, the Court held that an employee may not be demoted below the position from which she was last promoted, and that such a demotion with a consequent pay cut breaches the express terms and the implied term of mutual trust and confidence even where misconduct is proved. Under section 30(6A) and the Second Schedule of the Industrial Relations Act 1967, contributory misconduct must be taken into account, and the deduction applies to the combined backwages and compensation.

Decision

The Court found constructive dismissal without just cause or excuse, as the demotion to her starting position with the consequent pay cut went to the root of the contract. It also found three acts of wilful insubordination proved against her, the last committed after she had been warned twice. The Court did not decide whether the company had a contractual power to demote, as that point was not pleaded. Reinstatement was refused. Backwages of 24 months and compensation in lieu of reinstatement of six months came to RM486,480, before a 50% deduction for contributory misconduct, leaving a final award of RM243,240.

Our lawyers, Muhendaran Suppiah and Chong Wan Loo, represented the claimant.

Industrial Court, Kuala Lumpur | 20/4-1148/24; Award 1117/2026 | 17 July 2026

Background

Mohamed Arif Mahserul joined the company in August 2022 as a Technical Assistant in its Power Plant Department. After a road accident in October 2023 he was on certified medical leave, the last certificate running until 15 April 2024; a hospital had recommended three months of light duties, and a medical note dated 8 February 2024 stated that he was currently not yet fit to return to work. On 15 February 2024, while that certificate was still running, the company terminated his employment for frustration of contract with effect from 1 April 2024.

Issue

Whether the company proved, on a balance of probabilities, that his medical condition had frustrated the contract of employment.

Legal principles

Illness frustrates an employment contract only where the incapacity is permanent, or so serious, prolonged and uncertain that the employer cannot reasonably be expected to wait any longer, judged on the medical evidence available when the employer decided. An employer relying on frustration must first inform itself of the true medical position and consult the employee.

Decision

The Court held that frustration was not proved and that the dismissal was without just cause or excuse, as the medical evidence showed only temporary unfitness and no prognosis of continuing incapacity. The qualified medical note, the light-duties recommendation and the fixed end date of the certificate pointed towards recovery, yet the company sought no medical clarification, did not consult him on his prognosis and offered no evidence of the operational disruption it alleged; its witness had misstated the medical note by omitting its qualifying words. Finding reinstatement not conducive to industrial harmony, the Court awarded RM2,600 as compensation in lieu of reinstatement and RM49,920 in backwages (24 months less 20% for post-dismissal earnings), a total of RM52,520 less statutory deductions, with interest at 8% a year if unpaid after 30 days.

Our lawyer, Eisyarmily Akhtar, represented the claimant.

Industrial Court, Kuala Lumpur | Lead case 7/4-1546/21; Award 1053/2026 | 7 July 2026

Background

Seven employees of Lakefront Residence Sdn. Bhd. and Modular Construction Technology Sdn. Bhd., two subsidiaries of the MCT group, were retrenched in late 2020 with immediate effect. The employers said that the group had restructured to dissolve its construction business, citing project delays, quality claims and the COVID-19 pandemic, so the employees’ roles had become redundant.

Issue

Whether a genuine redundancy existed and whether the retrenchments were carried out in good faith.

Legal principles

Reorganisation is a managerial prerogative, but the employer must prove that the redundancy was genuine and the retrenchment bona fide. Under the Code of Conduct for Industrial Harmony 1975, an employer facing redundancy is expected to consult and to take positive steps to avoid or reduce retrenchment, including redeployment.

Decision

The Court found that the retrenchments lacked good faith and that the dismissals were without just cause or excuse. The employers produced no credible evidence that the restructuring had been carried out or the construction business closed; their own witness accepted that the group remained in construction and had launched 10 projects since, and the pandemic losses were not proved. There had been no prior discussion or warning, no cost-cutting measures and no search for alternative jobs within the group. Each claimant was awarded 24 months’ backwages less 30% for post-dismissal earnings, and one month’s salary for each completed year of service in lieu of reinstatement. The seventh claimant was awarded RM154,304.40, made up of RM86,990.40 in backwages and RM67,314 (13 months) in compensation, subject to statutory deductions.

Our lawyer, Chong Wan Loo, represented the seventh claimant, Muhamad Azwan bin Zaini.

Industrial Court, Kuala Lumpur | 19/4-1714/23; Award 949/2026 | 16 June 2026

Background

Shaidatul Nuraheem, a kindergarten teacher, was given notice on 13 July 2023 that her employment would end on 31 July 2023, after about eight months of service. The employer relied on unsatisfactory attendance and performance and a lack of due diligence and teamwork, and said she was a contract teacher. It had also treated a day of approved annual leave as unpaid leave and deducted RM100 from her wages.

Issue

Whether the employer proved the grounds on which it dismissed her.

Legal principles

The employer must prove the grounds of dismissal with reliable evidence. A dismissal for poor performance requires proof that the employee was warned and given an opportunity to improve. A deduction from wages that is neither permitted by law nor agreed by the employee is unlawful under section 24 of the Employment Act 1955.

Decision

The Court held that the dismissal was without just cause or excuse because none of the grounds was proved. Her letter of confirmation showed that she was a permanent employee. Her leave and medical certificates had been approved or accepted at the time, and the attendance record relied on was undated, unsigned and not supported by the person who prepared it. The company produced no warning, appraisal or other evidence of poor performance, and its witness conceded that the allegations of lack of due diligence and teamwork were unproven. Reinstatement was not ordered, and no compensation in lieu of reinstatement was awarded because she had not completed a year of service. She was awarded RM36,000 in backwages, being 24 months at her last drawn basic salary of RM1,500, and a refund of the RM100 deduction, totalling RM36,100, subject to statutory deductions.

Our lawyer, Eisyarmily Akhtar, represented the claimant.

Industrial Court, Kuala Lumpur | 21/4-770/23; Award 432/2026 | 10 March 2026

Background

Muhammad Muhaimin Lau, the company’s Chief Executive Officer under a three-year contract, was pressed to resign, suspended on a suspected forgery with his duties given to a replacement, and charged with four counts of misconduct. When the company withheld his June 2022 salary and the balance of his bonus, he left and claimed constructive dismissal. The company called no witnesses after its application to adjourn the hearing was refused.

Issue

Whether the employer’s actions, taken individually or together, fundamentally breached the contract so that Muhaimin was constructively dismissed, and whether his contract was genuinely fixed-term.

Legal principles

A series of employer actions may be assessed cumulatively, with a last straw completing a breach of the implied term of mutual trust and confidence. Failure to pay salary when due is itself a fundamental breach, and later payment does not retrospectively cure a breach that existed when the employee left.

Decision

The Court found that Muhaimin had been constructively dismissed without just cause or excuse. The company paid the withheld salary and bonus only after he left and never replied to his letter claiming constructive dismissal, which was treated as an admission; its later dismissal letter, issued after his representation, was an afterthought, and the forgery allegation was neither particularised nor proved. Reinstatement was refused because a replacement had been appointed. As the contract was genuinely fixed-term, the Court awarded RM230,962.36 in backwages for its unexpired term and RM53,200 (two months) in lieu of reinstatement. The total was RM284,162.36, less statutory deductions, with 8% annual interest if unpaid after 30 days, and the company was ordered to pay its EPF, SOCSO and EIS contributions on the backwages.

Our lawyers, Muhendaran Suppiah and Chong Wan Loo, represented the claimant.

Industrial Court, Kuala Lumpur | 21/4-565/23; Award 54/2026 | 7 January 2026

Background

Fatin Adilah was employed as Chief Operation Officer, subject to probation. About six months later the company ended her employment by a letter of non-confirmation listing six allegations. The company’s witness did not return to complete cross-examination, and the hearing concluded in the company’s absence.

Issue

Whether Fatin Adilah was still a probationer when the company ended her employment, and whether the company had proved the reasons it gave for dismissing her.

Legal principles

An employee may be confirmed by the employer’s conduct, without a letter of confirmation, where the employer treats her as a confirmed employee. The employer must prove the reasons operating at the time of dismissal, so allegations raised in a letter issued after the dismissal were excluded, and poor performance cannot justify dismissal without prior warning and an opportunity to improve.

Decision

The Court accepted Fatin Adilah’s evidence and found that she had been dismissed without just cause or excuse. It held that the company had confirmed her employment by approving six days of annual leave beyond her entitlement as a probationer, and that none of the six allegations was proved; she had never been warned about her performance, and the chief executive had commended her work five days before her dismissal. The Court declined reinstatement because the relationship was no longer harmonious. She was not entitled to compensation in lieu of reinstatement as she had not completed a year of service. As a confirmed employee, she was awarded RM135,000 in backwages (RM9,000 per month for 15 months), less statutory deductions, with interest at 8% per annum if unpaid after 30 days.

Our lawyers, Muhendaran Suppiah and Chong Wan Loo, represented the claimant.

High Court, Kuala Lumpur, Commercial Division | WA-22NCC-87-02/2024; [2025] CLJU 3530 | 8 September 2025

Background

Conservenrg Sdn Bhd and Vivek G. Dharkar paid for gloves under a supply contract with Atlas Holdings Ltd, a Labuan company, and the gloves were never delivered. Atlas had since been struck off. Their counterclaim sought to hold Ng Yeen Seen, a former director of Atlas, personally liable for Atlas’s failure to perform, and she applied to strike it out.

Issue

Whether the counterclaim disclosed a sustainable claim against Ng personally, in contract, fraud, agency or trust.

Legal principles

A director who acts for a disclosed company is not personally liable for the company’s contractual default, and privity of contract continues to apply after the company has been struck off. Personal liability requires a pleaded basis, such as particularised fraud, a pleaded agency or grounds to lift the corporate veil.

Decision

The High Court allowed Ng’s application in Enclosure 55 and struck out the counterclaim against her with costs, as she was not a party to the contract and had acted only for Atlas. The counterclaim pleaded no basis to lift the corporate veil, did not particularise fraud, did not plead agency and identified no trust property. No factual dispute required a trial. The Court found that the counterclaim appeared to be motivated by the inability to pursue Atlas after it was struck off, and that shifting that liability onto a director with no pleaded wrongdoing was a misuse of the Court’s process.

Our lawyers, Srividhya Ganapathy and Eisyarmily Akhtar, represented Ng Yeen Seen, the second defendant in the counterclaim.

High Court, Kuala Lumpur | WA-22NCvC-253-04/2025; [2025] CLJU 2576 | 25 July 2025

Background

Gan Siowck Lee, a member of the Royal Lake Club since 1978, was suspended for three months and fined RM500 by the Club’s Disciplinary Committee for refusing to end an online meeting in the Infant Feeding Room. Her appeal to the General Committee failed, and her attempt to requisition an extraordinary general meeting fell short of the 100 members required. She then sued the Club’s committee members, office bearers and registered public officer, who applied to strike out her claim.

Issue

Whether Gan Siowck Lee could sue before exhausting the internal remedies under the Club’s constitution, and whether her claims against the individual defendants could proceed.

Legal principles

A club’s constitution binds its members as a contract, and section 40(1)(a) of the Societies Act 1966 requires such disputes to be decided under the society’s rules, so internal remedies must be exhausted before the Court will intervene. A member who cannot obtain the support needed to requisition an extraordinary general meeting has not exhausted them, and under Rule 20.1A her membership ceases automatically when she sues. The Court is slow to interfere in a purely social club, where membership does not affect livelihood or property.

Decision

The High Court struck out the claim, holding that Gan Siowck Lee had not exhausted the Club’s internal remedies, and found the disciplinary proceedings valid with no breach of natural justice. It held that the committee members could not be personally liable, as a society can be sued only in the name of a member registered with the Registrar as its public officer. The defendants’ striking-out applications in enclosures 16 and 21 were allowed and her applications in enclosures 3 and 17 dismissed, with costs of RM5,000 for each enclosure.

Our lawyers, Srividhya Ganapathy and Eisyarmily Akhtar, represented the defendants.

Status

An appeal against this decision is pending.

Industrial Court, Kuala Lumpur | 15/4-1586/23; Award 1058/2025 | 3 July 2025

Background

Lim Boon Hon, a Workshop Manager on probation, was dismissed after about four months by a letter citing his failure to meet a task deadline. The company, which acted without lawyers until after the trial, never filed a Statement in Reply despite repeated extensions. At the trial its witness alleged instead that Lim had released repaired cars without payment and had not completed workshop upgrades funded with RM10,000.

Issue

Whether the company could justify the dismissal on allegations it had neither pleaded nor stated in the termination letter, and whether it had proved the stated reason.

Legal principles

The parties are bound by their pleadings, and section 30(5) of the Industrial Relations Act 1967 cannot override that rule (Ranjit Kaur S Gopal Singh v Hotel Excelsior (M) Sdn Bhd, Federal Court). An employer that ignores repeated directions to file pleadings cannot invoke equity and good conscience to overcome its own default, as equity aids the vigilant. An employee whose probation ends without confirmation or termination remains a probationer.

Decision

The Court found that Lim had been dismissed without just cause or excuse, as the company proved none of its allegations, whether stated in the termination letter or raised at the trial, where the new complaints were undocumented and inconsistent with the stated reason. Reinstatement was not ordered as time had passed and Lim had started his own business, and he received no compensation in lieu as he had served less than a year. As a probationer, he was limited to 12 months’ backwages at RM7,000 per month, reduced by 35% for post-dismissal earnings to RM54,600. With his unpaid March 2023 salary of RM7,000, the total award was RM61,600, less statutory deductions.

Our lawyer, Eisyarmily Akhtar, represented the claimant.

Industrial Court, Kuala Lumpur | 11/4-2879/21; Award 980/2025 | 19 June 2025

Background

Jagdeep Kaur served as General Manager, Human Capital from 2016 under successive fixed-term contracts. In March 2021 the company transferred her with immediate effect to head Halal Event Management, a profit-centred, revenue-generating role, although her experience lay entirely in human resources. She protested, was told the decision was final, and left at the end of that month claiming constructive dismissal.

Issue

Whether the transfer fundamentally breached her contract of employment, and whether her successive fixed-term contracts were in reality permanent employment.

Legal principles

Applying the contract test, the Court required her to show a breach going to the root of the contract, that she left in response to it and that she did so without undue delay. On the successive contracts, the Court looked at how the company itself had treated the employment.

Decision

The Court found that Jagdeep Kaur had been constructively dismissed without just cause or excuse, as the transfer fundamentally breached the implied term of mutual trust and confidence. The company had not discussed the move with her and gave her no job description, placing her in a revenue-generating role outside her experience in which any failure would be held against her; she protested at once and left without undue delay. The Court also found her employment permanent in substance, as the company had treated her as permanent, including through its acting chief executive’s promise of career advancement. Finding reinstatement unsuitable and not in the interest of industrial harmony, it awarded RM291,726 in backwages (18 months) and RM64,828 as compensation in lieu of reinstatement (one month for each of four completed years), totalling RM356,554, payable within 45 days.

Our lawyer, Muhendaran Suppiah, represented the claimant.

Industrial Court, Kuala Lumpur | 11/4-1152/22; Award 168/2025 | 28 January 2025

Background

Ahmad Faizal had served the company and its predecessor since 2006. From 1 August 2020 the company revised his salary but withdrew his car and petrol card allowances, and a salary adjustment promised for April 2020 was never made. After he raised repeated grievances, the company issued him three show cause letters, a warning letter and a caution letter in 2021 and then asked him to sign a performance improvement plan; he resigned on 2 October 2021 and was released on 18 October 2021.

Issue

Whether the company’s conduct fundamentally breached his contract of employment, so that he was constructively dismissed without just cause or excuse.

Legal principles

Under the contract test the employee must prove a breach going to the root of the contract and leave in response to it without undue delay. The Court held that varying his terms without notice or consent showed that the company did not intend to be bound by the contract, and that his persistent protest meant he had not acquiesced.

Decision

The Court held that Ahmad Faizal had been constructively dismissed without just cause or excuse. The allowances were withdrawn without notice, consent or a proven reason, and the salary revision was in substance a pay cut, his total monthly pay falling from RM8,006.10 to RM6,737.50. The disciplinary letters and the plan were imposed on an employee of more than 15 years with no performance issues, whose performance the company’s own witness confirmed was good, and together with his unanswered grievances they breached the implied term of mutual trust and confidence; he resigned three days after being asked to sign the plan. Finding reinstatement unsuitable, the Court awarded RM108,642.30 as compensation in lieu of reinstatement and RM139,062.14 in backwages (24 months less 20% for post-dismissal earnings), a total of RM247,704.44.

Our lawyers, Muhendaran Suppiah and Chong Wan Loo, represented the claimant.

Industrial Court, Kuala Lumpur | 20/2-292/23; Award 36/2025; [2025] ILRU 0036 | 7 January 2025

Background

On 11 January 2023 the Minister referred a trade dispute between the National Union of Plantation Workers and the Malayan Agricultural Producers Association to the Industrial Court under section 26(2) of the Industrial Relations Act 1967. The dispute concerned the terms and conditions of employment under four collective agreements for the period 1 January 2022 to 31 December 2024, covering harvesters and loaders on oil palm estates, palm oil mill employees, rubber tappers, and field and other general employees and fringe benefits.

Issue

The terms and conditions of employment to apply under the four collective agreements for 2022 to 2024.

Legal principles

The Court did not decide any question of law. It recorded the parties’ settlement as a consent award on their joint application.

Decision

The dispute was settled and the Court recorded a consent award. On the first day of hearing, 11 November 2024, counsel informed the Court that all the disputed articles in the four agreements had been resolved. The parties executed four Memorandums of Agreement dated 22 November 2024 and, on 27 November 2024, applied for a consent award, which the Court recorded with the four Memorandums of Agreement annexed as an integral part of it.

Our lawyers, Muhendaran Suppiah and Chong Wan Loo, represented the union.

Federal Court | Notis Usul No. 08(f)-153-06/2024(P) | 25 September 2024

Background

Valeo Malaysia CDA Sdn. Bhd. applied for leave to appeal against the Court of Appeal order handed down on 7 May 2024, by which the Court of Appeal dismissed its appeal against the High Court order handed down on 1 March 2023. The High Court had dismissed Valeo’s judicial review application and upheld the decision of the Ketua Pengarah Perhubungan Perusahaan, Jabatan Perhubungan Perusahaan, by Form F dated 12 April 2022, which accorded union recognition to Kesatuan Kebangsaan Pekerja-Pekerja Perusahaan Alat-Alat Pengangkutan & Sekutu (NUTEAIW).

Issue

Whether Valeo’s application fell within section 96(a) of the Courts of Judicature Act 1964 for the grant of leave to appeal.

Decision

The Federal Court held that Valeo had failed to raise any question involving a point of general principle not previously decided by the Federal Court, or a point of public importance upon which a decision of the Federal Court would be to public advantage. The application therefore did not fall within section 96(a) of the Courts of Judicature Act 1964 for the grant of leave to appeal, and the Federal Court dismissed it with costs.

Our lawyers, Muhendaran Suppiah and Chong Wan Loo, represented the second respondent in opposing Valeo’s leave application.

Court of Appeal | Civil Appeal No. P-01(A)-147-03/2023 | 7 May 2024

Background

Valeo Malaysia CDA Sdn Bhd appealed against the decision of the High Court, which upheld the union recognition accorded to Kesatuan Kebangsaan Pekerja-Pekerja Perusahaan Alat-Alat Pengangkutan & Sekutu (the second respondent) by the Ketua Pengarah Perhubungan Perusahaan, Jabatan Perhubungan Perusahaan (the first respondent) by Form F dated 12 April 2022.

Valeo’s main ground of appeal was that the first respondent had failed to conduct any investigation into Valeo’s complaints about the secret ballot held on 14 December 2021 before delivering its decision by Form F, especially as there was purportedly evidence, in the form of hand-written letters purportedly from Valeo’s workers, of undue influence, brainwashing or corruption practices by the second respondent during the secret ballot.

Issue

Whether the first respondent had failed to conduct any investigation into Valeo’s complaints about the secret ballot held on 14 December 2021 before delivering its decision by Form F.

Decision

The Court of Appeal panel unanimously found no merit in the appeal, on the brief grounds that: (a) on the facts, the first respondent could not be said to have failed to conduct any investigations on Valeo’s complaints about the secret ballot; (b) the first respondent had given Valeo the opportunity, and advised it, to file a precise complaint specifying the relevant section or sections for the alleged breaches, which Valeo agreed to do, but Valeo failed to do so despite being given 2 months; and (c) the hand-written letters purportedly obtained from the workers, which allegedly complained of brainwashing by the second respondent to vote in its favour, were never presented to the first respondent for its consideration in arriving at its decision by Form F. The appeal was dismissed with costs and the High Court decision upheld.

Our lawyers, Muhendaran Suppiah and Chong Wan Loo, represented the second respondent in opposing the appeal.

Status

The Federal Court refused Valeo leave to appeal on 25 September 2024.

Court of Appeal | Civil Appeal No. W-01(A)-488-09/2023 | 30 September 2024

Background

Khairu Norliza binti Khairudin appealed against the decision of the High Court, which on 21 August 2023 allowed the judicial review application of Kool FM Radio Sdn. Bhd. and quashed Industrial Court Award No. 396 of 2020 dated 14 February 2020. In that award the Chairman of the Industrial Court had ruled in Khairu Norliza’s favour and awarded her RM133,000.00, to be paid by the company.

Decision

On 30 September 2024 the Court of Appeal panel unanimously: (a) allowed the appeal; (b) set aside the High Court order dated 21 August 2023; and (c) varied Industrial Court Award No. 396 of 2020 dated 14 February 2020 by reducing the award sum to be paid by the company to Khairu Norliza from RM133,000.00 to RM56,000.00 (RM7,000.00 x 8 months of her salary).

The Court of Appeal found that the company’s conversion of Khairu Norliza’s employment contract to an independent contractor agreement was not justified, as she was given no option other than to accept the independent contractor agreement. As to her work, the Court found that she still had to clock in according to normal work hours and was required to replace other radio announcers’ shifts, for instance in cases of emergency. The company exercised a large degree of control over her, and her work was an integral part of its business. The Court took the view that the company had no need to change her employment contract to an independent contractor agreement, and did so merely to allow it to terminate her employment if it no longer required her services. The Court of Appeal therefore ruled that the independent contractor agreement was in reality a contract of service, that she was in fact a workman, and that the early termination of her employment contract was a dismissal without just cause.

On remedy, the Court of Appeal took the view that radio announcer is a popularity-sensitive job, and that the company would not want to over-commit to the same radio announcer in a fast-moving social media world. In its opinion, in the event her contract period was completed, she had no good cause to complain about the termination of the contract. The Court therefore set aside the High Court order and reinstated the Industrial Court award, but varied it by reducing the award sum from RM133,000.00 to RM56,000.00.

Our lawyers, Muhendaran Suppiah and Chong Wan Loo, represented the appellant in the appeal. Our firm also represented her in the Industrial Court.

High Court, Kota Bahru | Civil Appeal No. DA-16-3-05/2024 | 25 November 2024

Background

Razali bin Daud and 41 other workers, a total of 42 workers, appealed against the Labour Court order delivered on 6 May 2024, by which the Labour Court dismissed their claim against Dominion Rubber Company (Malaya) Sdn. Bhd. for price bonus for the period January 2021 to January 2023, totalling RM58,623.90.

Decision

On 25 November 2024 the High Court dismissed the workers’ appeal and upheld the Labour Court order.

Our lawyers, Muhendaran Suppiah and Chong Wan Loo, represented the 42 workers in pursuing the appeal.

Industrial Court, Kuala Lumpur | 14/4-409/21; Award 1113/2024 | 24 July 2024

Background

Loo Wye Ling joined the company in April 2016 as Executive Assistant to the Chief Executive Officer and was later redesignated Executive Secretary. In November 2019 it was agreed that she would move to the Learning & Development Department once a replacement was found; the company recruited her replacement in February 2020 but did not transfer her. On 19 June 2020 it retrenched her, citing the impact of the COVID-19 pandemic and the Movement Control Order on its business.

Issue

Whether the company proved actual redundancy and selected Loo Wye Ling for retrenchment in good faith and on fair criteria.

Legal principles

The employer must prove actual redundancy, and the pandemic did not give employers a free hand to retrench: the company had to show cost-cutting measures and a real necessity. Under section 30(5A) of the Industrial Relations Act 1967 the Court applied the Code of Conduct for Industrial Harmony, which calls for consultation and objective selection criteria, and held that a departure from the last in, first out (LIFO) principle requires valid reasons.

Decision

The Court held that the retrenchment was not made in good faith and that the company had intentionally made her redundant by failing to complete the agreed transfer after replacing her. The retrenchment came about three months after the Movement Control Order began and before the company’s own measure of one day of no-pay leave a week had run its course, while its revenue chart showed revenue increasing over 2020. The company retained junior employees doing similar work, offered her no alternative position and gave her no notice or consultation, and its other selection criteria were rejected. Finding reinstatement not in the interest of industrial harmony, the Court awarded RM217,465.73 in backwages (24 months less 20% for post-dismissal earnings) and RM21,734.37 as compensation in lieu of reinstatement (four completed years less the RM23,570.99 severance payment), a total of RM239,200.10.

Our lawyer, Chong Wan Loo, represented the claimant.

Industrial Court | Award 1808/2024 | 27 November 2024

Background

Rama Shankar a/l Thiyaga Rajan was employed by Dhaya Maju Infrastructure (Asia) Sdn Berhad as a Plant Admin & Yard Manager under a fixed-term contract for 2 years, from June 2016 to June 2018. The parties entered into a lengthy negotiation for the renewal of the contract, but reached no agreement. The company nevertheless allowed Rama Shankar to continue working on the same terms and conditions as the previous fixed-term contract, although it had expired in June 2018.

The company asked Rama Shankar to report to the Human Resources & Administration Department at its headquarters on 4 December 2018, without telling him the reason. He reported as instructed but was not assigned a workplace or any work. He complained about his treatment at the headquarters. On the next day the company transferred him to another department at the headquarters, the Procurement Department, where he received the same treatment.

During the 7 months that he was in the Procurement Department, he was not assigned any work. The company also failed to pay his overtime, phone and medical claims, although they had long been overdue and he had made numerous and repeated requests for payment. On 31 July 2019 he wrote to the company informing it that he deemed himself constructively dismissed because of these actions. The company did not reply to or dispute his letter.

Issue

Whether Rama Shankar was constructively dismissed, and whether his employment after the expiry of his fixed-term contract was fixed-term or permanent.

Decision

The Industrial Court held that Rama Shankar had proved constructive dismissal on the balance of probabilities. The Court based its finding on several factors, including the company’s failure to give clear reasons for his 2 transfers, one after another within 2 days, despite his queries; his placement in a workstation without proper utilities; and the company’s failure to address or resolve his financial claims. The Court also found that the company’s lack of response to his letter of constructive dismissal, and its failure to challenge his contentions in it, amounted to an acceptance of his claim of constructive dismissal.

On whether his employment was fixed-term or permanent, the Court held that, as he had only 1 previous fixed-term contract of 2 years with the company, there was no clear intention between the parties to make the employment relationship permanent. The Court therefore held that he was working on a fixed-term agreement for 2 years after the expiry of his initial fixed-term contract.

The Industrial Court held that Rama Shankar was constructively dismissed without just cause and awarded backwages based on the balance of the contract period.

Our lawyer, Chong Wan Loo, represented the claimant.

Labour Court | Kes Saman Ketua Pengarah Tenaga Kerja No. KBR10301/2023/0373 | 6 May 2024

Background

Razali bin Daud and 41 other workers, a total of 42 workers, claimed price bonus from their employer, Dominion Rubber Company (Malaya) Sdn Bhd, for the period January 2021 to January 2023, totalling RM58,623.90. The basis of their claim was that the entitlement to price bonus was provided for under the collective agreement entered into between MAPA and NUPW. All 42 workers were members of NUPW.

The company was not a member of MAPA. It had, however, followed the terms and conditions of the MAPA/NUPW agreements over the years in relation to these workers, as no employment contract setting out their terms and conditions of employment had been provided to them. In an earlier precedent involving the same parties (Kes Buruh KBR 10301/2016/0059), the Labour Court held that the company was bound by the MAPA/NUPW collective agreements despite not being a member of MAPA, on the ground that it had, by conduct and its past practice, accepted to be bound by them.

Issue

Whether the company, which was not a member of MAPA, was bound by the MAPA/NUPW collective agreements in respect of the workers’ claim for price bonus.

Decision

The Labour Court dismissed the claim, on the brief grounds that: (a) the company is not bound by the MAPA/NUPW collective agreements, since it is not a member of MAPA; and (b) the earlier precedent is not applicable, as the claims involved were different, the earlier case being a claim for arrears of wages and ex-gratia payments and the present case a claim for price bonus.

Our lawyers, Muhendaran Suppiah and Chong Wan Loo, represented the 42 workers in pursuing their claim.

Status

The 42 workers appealed against the Labour Court order to the High Court. On 25 November 2024 the High Court dismissed the appeal and upheld the Labour Court order.

Federal Court | Civil Application No. 08(f)-503-11/2022(W)

Background

Sealand Marine Inspection and Testing (M) Sdn. Bhd. applied for leave to appeal to the Federal Court. The Industrial Court had handed down an Award in favour of the claimant, Gopala Krishnan, holding that the company had terminated him without just cause and excuse, and that he was a workman despite being a director and shareholder of the company.

The company applied to the High Court for certiorari to quash the Award, and the High Court allowed the application. Gopala Krishnan appealed to the Court of Appeal, which allowed the appeal and reinstated the Award. The company then applied for leave to appeal to the Federal Court, raising seven questions.

Issue

Whether leave to appeal should be granted on the company’s seven questions, which included: (a) whether, in determining whether a claimant has been terminated in his capacity as a director or as a workman, the Industrial Court ought to take into consideration the contemporaneous documents authored by the claimant immediately after his termination; (b) whether, in making that determination, the Industrial Court is precluded by the decision of the Federal Court in Maritime Intelligence Sdn Bhd v Tan Ah Gek [2021] 3 MLJ 78 from considering that documentary evidence; and (c) whether the Industrial Court has jurisdiction to consider whether a claimant has been dismissed for just cause and excuse when his contemporaneous documentary evidence complained only of his termination or “constructive dismissal” as a director of the company, as opposed to a workman employed by the company.

Decision

The Federal Court dismissed the company’s leave application, as the company failed to fulfil the requirements in sections 96 and 97 of the Courts of Judicature Act 1964.

Our lawyer, Muhendaran Suppiah, represented the claimant (the first respondent).

Court of Appeal | 2023

Background

Kananniasan appealed under section 68 of the Courts of Judicature Act 1964 against the decision of the High Court. At the hearing in the Labour Court, the second respondent dismissed his claim. He appealed to the High Court, and the appeal was also dismissed.

Issue

Whether the second respondent’s findings were tenable in light of the incomplete notes of evidence, namely the missing notes of the cross-examination of the first respondent’s first witness and the entire notes of evidence of the first respondent’s second witness.

Decision

Because the notes of evidence were incomplete, the Court of Appeal directed that the matter be retried in the Labour Court.

Our lawyer, Muhendaran Suppiah, represented the appellant.

Court of Appeal | Civil Appeal No. W-01(A)-630-11/2021 | 23 August 2023

Background

Murali Tharan Nair appealed against the High Court’s decision to quash Industrial Court Award No. 276 of 2020. The Award had held that the termination of his employment through a Mutual Separation Agreement (MSA) was a dismissal without just cause and excuse.

The High Court held that the Industrial Court had erred in holding that there was no consensus ad idem on his part in entering the MSA, failing to take into account the fact that he had negotiated the terms of the MSA with the company before signing it. It also held that the Industrial Court had taken into account irrelevant matters such as the issue of redundancy, and had made findings unsupported by the evidence before it.

Decision

The Court of Appeal unanimously upheld the High Court’s judgment.

Our firm represented the appellant.

High Court | Judicial Review Application No. PA-25-26-07/2022 | 1 March 2023

Background

Valeo Malaysia applied to quash the decision of the Ketua Pengarah Perhubungan Perusahaan, Jabatan Perhubungan Perusahaan (the first respondent), made by Form F dated 12 April 2022, that Valeo Malaysia accord recognition to Kesatuan Kebangsaan Pekerja-Pekerja Perusahaan Alat-Alat Pengangkutan & Sekutu (the second respondent) following a secret ballot conducted on 14 December 2021.

Its grounds included alleged interference or undue influence by the second respondent during the secret ballot. Valeo Malaysia made the complaint on the day of the secret ballot itself and raised it again with the first respondent by its letter dated 27 December 2021, before Form F was issued.

Decision

The High Court found that the verbal complaints raised by Valeo Malaysia on the day of the secret ballot had been dealt with immediately by the officer from JPP Pulau Pinang on duty for the secret ballot, except for the bribe issue, and that the secret ballot carried on smoothly until its completion. On the bribe issue, Valeo Malaysia was advised to lodge a complaint with Suruhanjaya Pencegahan Rasuah Malaysia (SPRM) if it had evidence, but there was no evidence before the High Court that it did so.

On the letter dated 27 December 2021, a meeting was held between the first respondent and representatives of Valeo Malaysia on 10 February 2022, at which Valeo Malaysia was advised to file a new and precise complaint under the relevant section of the breaches or issues complained of, and agreed to do so. No such complaint was filed. The High Court held that there was no reason to quash Form F, and dismissed the judicial review application with costs.

Our firm represented the union, the second respondent.

Status

The Court of Appeal dismissed Valeo’s appeal on 7 May 2024, and the Federal Court refused leave to appeal on 25 September 2024.

High Court, Kuala Lumpur | WA-25-186-06/2020; [2023] CLJU 2318 | Written reasons: 14 November 2023

Background

Khairu Norliza Khairudin had worked as a radio announcer since 1 April 2014 under fixed-term contracts of service. In 2017 she was told that Kool FM Radio would engage its announcers only as independent contractors, and her company, LKD Empire Sdn Bhd, signed an Independent Contractor Agreement dated 27 December 2017 to provide her services until 31 March 2019. The company terminated the agreement with effect from 8 August 2018. By Award No. 396 of 2020, the Industrial Court held that she was a workman dismissed without just cause or excuse and awarded her RM133,000.

Issue

Whether the Industrial Court erred in law in finding that Khairu Norliza Khairudin was a workman employed under a contract of service when she had contracted as an independent contractor.

Legal principles

An Industrial Court award may be quashed for error of law, including a failure to consider relevant matters or an unreasonable inference from proved facts. A clear written contract is construed by its words, and a party who accepted its terms is bound by them.

Decision

The Court allowed the application for judicial review and set aside the award, holding that the Industrial Court had failed to consider that she knowingly accepted engagement as an independent contractor. She had registered her own company, invoiced through it, agreed that no statutory contributions would be made for her, and did not object to the termination. The control relied on arose from the company’s rights under the agreement and did not exceed them; she could decline work and did not clock in. The agreement superseded all earlier agreements, and there was no evidence that her earlier employment continued. The Court ordered costs of RM5,000 subject to allocator.

Our lawyers, S Muhendaran and Chong Wan Loo, represented the second respondent, Khairu Norliza Khairudin.

Status

The Court of Appeal allowed Khairu Norliza’s appeal on 30 September 2024, set aside the High Court’s order and reinstated Award No. 396 of 2020, reducing the award sum from RM133,000.00 to RM56,000.00.

High Court | Judicial Review Application No. WA-25-72-03/2023

Background

Artac Consulting Sdn. Bhd. filed a judicial review application and obtained an ex parte order staying Industrial Court Award No. 108 of 2023 dated 10 January 2023, without the presence of Muhamad Muhaimin Lau (the first respondent) before the Court. Artac Consulting did not inform him or his solicitors that an application for a stay had been made before it obtained the ex parte order.

On examining the cause papers, Muhamad Muhaimin Lau found that Artac Consulting had not disclosed any special circumstances to support the application for the stay. He applied to set aside the ex parte stay order.

Issue

Whether the ex parte stay order obtained by Artac Consulting should be set aside.

Decision

The High Court agreed with the first respondent’s submissions and allowed the setting-aside application. Artac Consulting was ordered to comply with the Industrial Court Award.

Our firm represented the first respondent, Muhamad Muhaimin Lau bin Abdullah.

Industrial Court, Kuala Lumpur | 22/4-261/20; Award 108/2023 | 10 January 2023

Background

Muhammad Muhaimin Lau, the company’s Chief Operating Officer (COO) and Senior Legal Officer, was found guilty at a domestic inquiry of failing to comply with the company’s SOPs when instructing the purchase of four air-conditioning units for RM35,352.06. The company demoted him by two ranks to Legal Officer, reduced his basic salary to RM4,082.01 a month and withdrew four benefits given to him as COO, and when it refused to restore his status quo he claimed constructive dismissal on 1 March 2017. The case was reheard after the High Court, on his judicial review, quashed an earlier consent award.

Issue

Whether the demotion fundamentally breached his contract of employment, which depended on whether the finding of guilt behind it was correct.

Legal principles

The Court distinguished authorities holding that a demotion after a domestic inquiry is not a fundamental breach, because in each of them the finding of guilt had been upheld, and so examined the alleged misconduct afresh, with the burden of proving it on the company.

Decision

The Court held that the finding of guilt was flawed, so the punishment fundamentally breached his contract, and the dismissal was not bona fide and was without just cause or excuse. He denied signing the Purchase Order, the three versions produced showed discrepancies and material differences, and the signature differed from his signature on other documents, so without a handwriting expert it would be dangerous to assume that it was his. The company did not call the maker of the Purchase Order, whose statutory declaration was given no weight, the investigating officer, or the Executive Chairman, who alone decided the punishment and to whom all three inquiry panel members were closely related or associated, and the Court drew an adverse inference under section 114(g) of the Evidence Act 1950. Reinstatement was refused because trust and confidence had broken down, and the company was ordered to pay RM250,800, made up of RM92,400 as compensation in lieu of reinstatement (14 completed years at RM6,600) and RM158,400 in backwages (24 months, without deduction as he had been unemployed throughout), less statutory deductions.

Our lawyers, Muhendaran Suppiah and Chong Wan Loo, represented the claimant.

Industrial Court | Award No. 167 of 2023 (see also Award Nos. 166 of 2023, 168 of 2023 and 169 of 2023) | 16 January 2023

Background

Leila Arsanjani applied to join Scomi Energy Services as a co-respondent, on grounds including that the respondent and the proposed joinee were part of an integral enterprise, being under the same group of companies under Scomi Group Bhd.

Issue

Whether Scomi Energy Services should be joined as a co-respondent.

Decision

The Industrial Court held that no reasonable factual or legal nexus existed between the proposed joinee and the respondent with regard to Leila Arsanjani’s employment, and found that the respondent no longer had control over the proposed joinee. It ruled that it was insufficient for her to rely on the mere fact that the proposed joinee and the respondent had the same registered address and business address and a common secretary for a joinder. The Court found that there was no evidence before it that the respondent had been wound up or liquidated or was in real financial problems, and accordingly found that the respondent was still able to pay any final award at this stage. The Court observed that if the respondent were in fact under receivership or winding up and unable to pay, she could make a joinder application at the non-compliance stage. Her joinder application was dismissed.

Our firm represented the claimant.

Industrial Court | Award No. 1111 of 2023

Background

Ahmad Nasirruddin bin Harun, Senior General Manager, Group Education & Strategic Support Service of KPJ Healthcare Berhad, was affected by the company’s new reorganisation and retrenchment exercise. He began his employment with the company on 1 October 1995 and received promotions, increments and bonuses throughout his employment. On 20 July 2018 the company extended his employment contract, and he resumed the same responsibilities as Senior General Manager at the company’s headquarters in Kuala Lumpur.

On 29 December 2020 he had a meeting with the company’s President and Managing Director, who explained that his position was redundant and offered him a Mutual Separation Agreement (MSA) with an ex-gratia payment of RM715,000.00, or early retirement. The company then issued a memo offering him mutual separation or early retirement after the management reorganisation exercise, in which it had not been able to map out an appropriate role for him and had identified him as redundant to its needs and operation, which was approved by the Board effective January 2021. He rejected the offer, asking to continue working until his retirement on 10 May 2023 and giving other reasons, and contended that the company terminated his employment on 31 January 2021.

Decision

The Industrial Court held that Ahmad Nasirruddin was aware of the company’s restructuring and reorganisation exercise, and that under the new organisational chart his name, position, role and job function no longer appeared. The Chairman also found that his duties and responsibilities had not been replaced, as the evidence showed that the new roles carried significantly more responsibilities and were substantially different, and he had produced no supporting evidence of his official job description. The Court found that the retrenchment exercise was carried out in good faith and that the company did everything possible to assist him, and held that the termination was with just cause and excuse.

Our firm represented the claimant.

Industrial Court | Award No. 1380 of 2023

Background

Komala, a Senior Lecturer employed by the company for almost 30 years, claimed that she had been constructively dismissed. In 2016 and 2017 the company faced a reduction in its profit. As a result, there was a change of personnel in management, removing some staff benefits and incentives and making sure that staff did not misuse overtime claims. By a memorandum dated 5 May 2018 the company revised working hours from 20 hours per week to 25 hours per week, although it stated that the average learning time was about 14.7 hours per week.

By a letter dated 29 October 2018 Komala protested against the new working hours, said that the company had breached the fundamental terms of her employment, and asked the company to withdraw the change, failing which she would consider herself constructively dismissed. By a letter dated 7 March 2019 she complained, among other things, that she had not been paid any increment or bonus in 2019, that she had not received the company’s long service award despite working for more than 30 years, and that she felt victimised or punished for her complaint to the company, and said that she would consider herself constructively dismissed if the company failed to honour it.

Decision

The Industrial Court held that Komala had signed and accepted Revised Terms and Conditions of Employment (the Revised Contract) on 16 July 2001, which provided among other things that bonus and increment were at the sole discretion of the company. It held that it was reasonable, and no breach of the contract of employment, for the company to impose additional working hours to ensure that staff were more accountable, with the hours meant for pastoral service to the students to improve their learning experience. The company was not contractually obliged to give the long standing award, which was only a tradition and practice of the company. The Court found no breach of the fundamental terms of the contract of employment on the issues raised.

Our firm represented the claimant.

Industrial Court | Interim Award No. 1618 of 2023

Background

On 11 January 2023 the Minister of Human Resources referred to the Industrial Court, under section 26(2) of the Act, the trade dispute between the union and Valeo Malaysia over their first collective agreement.

The case was fixed for mention on 16 February and 9 March 2023. The company’s solicitors attended on both dates, but the union’s representative was absent on both. Because of the union’s absence, the Court handed down an interim award striking out the case with liberty to reinstate within 30 days. The union applied to reinstate the case.

Issue

Whether the case should be reinstated.

Decision

The Industrial Court held that after the case was referred on 11 January 2023 the union took no follow-up to obtain confirmation of the mention date, and filed its application to reinstate only a month after the case was struck out. The Chairlady stated that the application was made at the last minute, towards the end of the 30-day period, which showed the union’s lack of seriousness about the case. The Court also noted that both parties were aware of the stay obtained by the company by order of the High Court. The Court was of the opinion that the lack of strong reasons and of any initiative by the union did not justify reinstating the case, and the application was accordingly dismissed.

Our firm represented the union.

Industrial Court | Award No. 1353 of 2023

Background

Thavakumar claimed that SapuraOMV Upstream (Sarawak) Inc. had constructively dismissed him without just cause or excuse on 3 August 2020. During his employment, a restructuring exercise in the related companies led to his transfer to the position of Head of Legal and Contracts with Sapura Kencana Energy Sarawak. His title was changed to Legal and Contracts Manager under the Legal and Compliance Department, and he reported to the company’s CEO.

His reporting line was later changed, and he was instructed to report to a newly appointed Head, Legal & Compliance; he was also given an organisational chart showing the new reporting line. He contended that he had been demoted and relegated by the new reporting line, which constituted a serious breach of the fundamental terms of his contract of employment. He was therefore compelled to tender his resignation with one month’s notice, and the company accepted it.

Decision

The Court dismissed Thavakumar’s claim for the following reasons: (a) he did not raise his concerns about the new reporting line with the company when he received the new organisational chart; (b) he continued working for the company although he was aware of the new organisational chart showing the new management structure and reporting line; (c) he did not pursue the company’s answer to an email he had sent; (d) he continued to work although the future reporting line stated that he would report to the Head of Legal and Compliance when the vacancy was filled; (e) he delayed in claiming fundamental breach of his contract of employment; and (f) he continued to work after tendering his resignation and waited for the company to reply to his letter instead of leaving immediately.

Our firm represented the claimant.

Federal Court | Civil Motion No. 08(f)-545-11/2021 (W) | 4 April 2022

Background

Avani Sepang Goldcoast (the company) filed a motion for leave to appeal to the Federal Court against the Court of Appeal’s decision delivered on 5 October 2021. The Court of Appeal had dismissed the company’s appeal against the High Court’s decision delivered on 25 February 2020, which affirmed Industrial Court Award No. 1739 of 2019 dated 13 June 2019 and dismissed the company’s application for judicial review.

Legal principles

The law relating to the grant or refusal of an application for an adjournment of a hearing is well settled: the discretion lies with the trial judge.

Decision

The Federal Court unanimously held that the company’s motion did not satisfy the requirements of section 96(a) of the Courts of Judicature Act 1964, as the company had failed to pose any question of general principle to be decided for the first time or any question of public importance upon which further argument and a decision by the Federal Court would be to public advantage. The motion was dismissed.

Our firm represented the claimant, Bawani a/p Maruthapillai, in all four proceedings, at the Industrial Court, High Court, Court of Appeal and Federal Court.

Court of Appeal | Notice of Motion No. W-08-426-11/2021 dated 13 November 2021

Background

Kananiasan, a lorry driver, was verbally dismissed by Syarikat Hing Yap Trading (the company) after the local council instructed the company to vacate its place of business, which belonged to the local council. He filed a claim in the Labour Office for compensation of 8 week leave for termination without notice, termination benefits in consideration of his years of service, and compensation for 16 days’ annual leave for 2019. At the trial before the Labour Office, the company called 2 witnesses. The Labour Office dismissed his claim, and the High Court then dismissed his appeal. He appealed against the High Court decision and applied for leave for the appeal to be heard in the Court of Appeal.

Kananiasan submitted that the lower court had committed a prima facie error for which leave should be granted. His grounds, which were not disputed, were: (a) the Labour Office failed to consider or examine the evidence of all witnesses at the trial, as its notes of evidence were incomplete: the testimony of both the company’s witnesses was not recorded, and the cross-examination of one of the company’s witnesses was missing and the entire testimony of the other was not included, even though both testified in open court; and (b) the company failed to establish that he had abandoned his work, having alleged that he failed to report to work, as no employee register of attendance was produced in support.

The company submitted that he had voluntarily abandoned his employment, and that responsibility for the incomplete notes of evidence lay with his previous solicitor, who had failed to raise the issue in the High Court.

Issue

Whether leave should be granted for the appeal to be heard in the Court of Appeal.

Decision

Leave to appeal to the Court of Appeal was granted.

Our firm represented the applicant, together with Messrs. Pathma Raj Ramasamy & Co.

High Court, Kuala Lumpur | Judicial Review No. WA-25-353-11/2020 | 11 January 2022

Background

Celcom Axiata Berhad, the company in the substantive matter, applied for judicial review of the decision of the Human Resources Minister (the Minister) to refer the representation of the third respondent, the claimant in the substantive matter, to the Industrial Court. Celcom contended that the Minister had erred in fact and/or in law in referring the representation, as the third respondent’s employment with Celcom had allegedly ceased to exist and Celcom had allegedly been wrongfully named as the third respondent’s employer.

Decision

The High Court dismissed the judicial review application on the grounds that: (a) on the evidence put forward to the Minister by Celcom, the Minister acted reasonably in deciding to refer the third respondent’s representation to the Industrial Court; and (b) the Industrial Court has the power to substitute parties under section 29(a) of the Industrial Relations Act 1967.

Our firm represented the third respondent.

High Court | Appeal No. BA-16-34-09/2021 | 9 May 2022

Background

Selvam filed a notice of appeal against a Labour Office decision, which was served on Tharmalingam out of time. The record of appeal was also filed and served on Tharmalingam after more than a month of delay. Tharmalingam was not present at the first case management, as he had not been informed of it. At the second case management he attended and objected to the filing of the record of appeal out of time.

A week after the second case management, Selvam applied for leave to file the record of appeal out of time, contending that he had no choice but to file it late because he was waiting for the full set of cause papers from the Labour Office to include in it.

Tharmalingam submitted that it is mandatory under: (a) Order 55 rule 3 of the Rules of Court 2012 that a notice of appeal to the High Court be served on the respondent within the time limited for filing an appeal, namely 14 days from the date of the decision; and (b) Order 55 rule 4 of the Rules of Court 2012 that the appellant file the record of appeal within one month from the date of filing the notice of appeal, notwithstanding that the notes of evidence and grounds of judgment are not ready, and serve it on the respondent within one month from the date of filing the notice of appeal. Selvam had failed to follow these rules, and applied for leave to file out of time only a week after Tharmalingam raised his objections.

Decision

The High Court dismissed Selvam’s application, with costs of RM1,500.00 to be paid by him to Tharmalingam, subject to allocator, and dismissed the appeal accordingly.

Our firm represented the respondent, having taken over conduct of the matter from The Law Firm of M. Eswary.

High Court, Kuala Lumpur | Judicial Review Application No. WA-25-347-11/2020, heard together with 4 other cases | 20 June 2022

Background

Associated Pan Malaysia Cement Sendirian Berhad applied for judicial review of Industrial Court Award Nos. 1365 to 1369 of 2020, handed down on 25 September 2020, in which the Chairman held that its termination of the employment of the five claimants through a retrenchment exercise was a dismissal without just cause and excuse. The Industrial Court reasoned that: (a) there was no evidence that the company had made the claimants aware of its business slowdown and its possible impact on their positions, or had given them sufficient notice of the upcoming retrenchment exercise; (b) there was no evidence that other workmen, especially those affected by the company’s closure of the Locomotive Section, had been retrenched; (c) the retrenchment exercise was carried out with a lack of openness and good faith, against the company’s moral and social commitments and responsibilities under the UN Guiding Principles on Business and Human Rights; and (d) there were possibilities of redeployment of the claimants, but the company had nonetheless continued to employ foreign or contract workers at the time of the retrenchment.

The company’s grounds for judicial review were that the Industrial Court: (a) took into consideration facts and arguments not pleaded or submitted by the claimants, including the UN Guiding Principles on Business and Human Rights and whether the company had retrenched other employees in other sections that were directly affected; (b) arrived at conclusions contrary to binding authorities; (c) misdirected itself on the wrong question of law and/or facts in failing to determine that the claimants’ (Patroller) positions were redundant, given the undisputed fact that the Locomotive Section had been closed down; and (d) acted without any lawful basis when it held that foreign workers remained in employment at the expense of the claimants, without providing the claimants an opportunity of redeployment.

Decision

The High Court allowed the application and quashed the five Industrial Court Awards (Award Nos. 1365 to 1369 of 2020).

Our firm represented the five claimants.

High Court, Kuala Lumpur | WA-25-141-04/2020; [2022] CLJU 1003 | Written reasons: 19 May 2022

Background

Murali Tharan Nair, a Senior Manager in Industrial Relations with HLMG Management Co Sdn Bhd, was offered a mutual separation package on 6 December 2017. At his request the resignation clause was removed from the mutual separation agreement, and he signed it on 9 February 2018, worked until 15 March 2018, and on 12 April 2018 complained that he had been forced to accept it. By Award No. 276 of 2020, the Industrial Court held that he had not entered into the agreement of his own free will and had been dismissed without just cause or excuse.

Issue

Whether the Industrial Court erred in law in finding that Murali Tharan Nair signed the agreement under duress and misrepresentation.

Legal principles

The High Court will intervene where the Industrial Court ignores relevant matters or makes findings unsupported by evidence. An employee is under duress only where he has no option but to resign or is told he will be dismissed if he does not, and the threat must be the reason he leaves.

Decision

The Court allowed the application for judicial review with costs, holding the finding of duress perverse because the Industrial Court had accepted his evidence uncritically and failed to consider his conduct. He had more than two months to consider the package, asked for the resignation clause to be removed and accepted the separation payment; as a Senior Manager in Industrial Relations with 17 years’ experience, he was able to negotiate its terms. His objection, made 2 months and 3 days after signing, was an afterthought, and the delay was fatal. There was no evidence of misrepresentation, and the Industrial Court had relied on an email sent after the agreement was signed.

Our lawyers, Muhendaran Suppiah and Chong Wan Loo, represented the first respondent, Murali Tharan Nair.

High Court | Judicial Review Application No. WA-25-375-12/2021 | 30 June 2022

Background

Choong Fook On applied for, among other things, an order of certiorari to quash the Minister’s decision referring his dismissal by the fourth respondent on 21 August 2020 to the Industrial Court for adjudication (the reference), and an order of mandamus directing the Director General to refer his dismissal on 25 January 2021 to the Industrial Court.

The fourth respondent first constructively dismissed him on 21 August 2020. After a conciliation meeting, the two mutually agreed to enter into a Memorandum Persetujuan, under which the fourth respondent was to reinstate him to his last-held position without loss of any seniority or benefits on 18 November 2020, with full backwages. Both parties fully complied with its terms when he was reinstated as Site Manager, Lifting, effective 18 November 2020.

By a letter dated 25 November 2020 the fourth respondent transferred him to the position of Person in Charge at Labour Quarters, Kayu Ara. He contended that the transfer breached the Memorandum Persetujuan and asked the fourth respondent to retract it, which it refused to do. The fourth respondent issued him a stern warning for absence from work, imposed a 12 hours’ shift on him, and assigned him duties and responsibilities totally different from those of his position of Site Manager, Lifting. He claimed constructive dismissal on 25 January 2021, based on the fourth respondent’s series of actions from 21 August 2020 to 25 January 2021.

Choong Fook On contended that the reference was tainted with illegality, irrationality and/or procedural impropriety, as the Minister failed to take into account the entire facts surrounding his constructive dismissal, which pointed to the conclusion that his claim was for constructive dismissal on 25 January 2021 rather than 21 August 2020. He further contended that the dismissal on 21 August 2020 was no longer valid, since the fourth respondent had reinstated him to his last-held position under the Memorandum Persetujuan effective 18 November 2020, even though only for 1 week.

Issue

Whether the Minister’s reference of Choong Fook On’s dismissal on 21 August 2020 to the Industrial Court was tainted with illegality, irrationality and/or procedural impropriety.

Decision

The High Court granted an order in terms of the prayer for such consequential order and relief as the Court deems fit, ordering the Industrial Court to determine and decide the actual or effective date of Choong Fook On’s dismissal and to hear the merits of the case. The applicant and all the respondents were ordered to pay their own costs.

Our firm represented the applicant.

High Court | Judicial Review Application No. WA-25-107-04/2021 | 8 September 2022

Background

Surendran Thuraisingam was the company’s Project Manager and was still on probation at the time of his dismissal. By an email dated 4 April 2013 the company gave him notice of termination until the end of May 2013, alleging poor performance. At the Industrial Court the company, in its pleadings, raised 3 further grounds to justify the dismissal: (i) he had uttered rude and sarcastic words to his superior; (ii) he was missing in action for 3 days in May 2013; and (iii) he had failed to submit his project plan as promised.

After hearing the evidence of both parties, the Chairman of the Industrial Court held that the company had failed to prove that he was guilty of poor performance or of any of the 3 grounds it relied on in terminating him, and that his dismissal was without just cause and excuse. The company applied to the High Court for judicial review to quash the decision.

Decision

The High Court held that the decision and findings of fact of the Industrial Court were not tainted with illegality, irrationality or procedural impropriety, and dismissed the judicial review application with costs.

Our firm represented Surendran Thuraisingam.

High Court, Kuala Lumpur | Judicial Review No. WA-25-412-12/2021 | 7 November 2022

Background

Mohamed Hassan applied for judicial review of the decision of the Human Resources Minister (the Minister) not to refer to the Industrial Court his representation under section 20(3) of the Industrial Relations Act 1967 (the Act) for unfair dismissal by Star Media Group Berhad (the second respondent).

Legal principles

A Mutual Separation Scheme (MSS) that is not genuinely consensual is open to challenge if it can be shown that the MSS was coerced on the employee, in which case it falls into the third category of termination referred to in Thilagavathy Sr Canagasingam and comes within section 20(3) of the Act. The High Court can interfere only where there is evidence that the Minister’s discretion was exercised unlawfully.

Decision

The High Court dismissed the judicial review application on the following grounds: (1) although it agreed with Mohamed Hassan’s counsel on the law, it found no coercion on the facts, as he had agreed to and was bound by the MSS by signing Appendix 1, clause 6 of which states: “I am aware that once my acceptance has been submitted, I will not be allowed to retract or cancel my acceptance”; (2) although he contended that he was under emotional distress due to excessive workload when he signed the MSS, the High Court found that no evidence of the purported emotional distress had been presented to the Minister. The Minister stated in his affidavit that the contention was merely an afterthought and that the evidence showed that Mohamed Hassan had protested against the MSS only after the second respondent rejected his counter-proposal on it. The High Court held that the Minister did not usurp the adjudicatory power of the Industrial Court in not referring the representation; and (3) on the facts made available to the Minister, there was no evidence that he acted in bad faith or unreasonably. The High Court was convinced that the Minister had undertaken a meticulous examination of those facts, and held that he could not be said to have acted ultra vires his powers and functions.

Our firm represented the applicant.

Industrial Court | Award No. 836 of 2022 | 26 April 2022

Background

Saw Hui Peng applied under section 29(a), (b) and (g) of the Industrial Relations Act 1967 to join four companies (the proposed companies) as parties to the Industrial Court case, on the grounds that joinder was necessary to make the adjudication of the case effective and enforceable, and that there was a sufficient and reasonable nexus between the parties.

The proposed companies adduced no evidence to contradict the following facts: (a) her duties and responsibilities encompassed all the proposed companies; (b) the proposed companies and the company named in the claim shared a common director, common company secretary and common registered address; (c) her unpaid salary accrued while she was employed by the 5th Company and the 2nd Company; and (d) she received 3 retrenchment letters, which mentioned, involved or related the 2nd, 4th and 5th Companies to her termination.

Issue

Whether the proposed companies should be joined as parties to the case.

Decision

The Court allowed the joinder application on the grounds that: (a) a reasonable factual or legal nexus between the company named in the claim and the proposed companies had been established; (b) the application was not frivolous, vexatious or an abuse of the process of the Court, and was not misplaced, devoid of merit or premature; (c) the company named in the claim and the proposed companies were all necessary parties to the effective and enforceable adjudication of the proceedings before the Industrial Court; and (d) neither the Industrial Relations Rules 1967 nor the Industrial Relations Act 1967 imposes any time frame within which a joinder application must be made, and the application was not prejudicial, as the substantial matter had yet to be heard and the proposed companies would have an opportunity to defend themselves at the substantial hearing.

Our firm represented the claimant.

Industrial Court | Award No. 1428 of 2022 | 12 July 2022

Background

Fatin Syazana, a Business Development Associate (BD) who also worked as a rider, received a show cause letter after a meeting with the company’s Head of Business Development/Manager and its Country Manager. The letter alleged misconduct and non-performance, raised 5 issues, and set her a new target to be achieved over the next 7 days. After she replied to the show cause letter, the company terminated her employment with immediate effect by a termination notice, which raised 5 more new issues in support of its allegations of poor performance, attitude to work and misconduct.

It was undisputed that before she received the show cause letter and the termination notice: (a) she had never received any warning or information, orally or in writing, from the company about shortcomings or necessary improvements in her work performance; (b) the company had never carried out an appraisal of her performance; and (c) the company had never held a domestic inquiry into the alleged misconduct. The company maintained that it had dismissed her with just cause and excuse, given her alleged poor performance, attitude to work and misconduct.

Decision

The Industrial Court held that the dismissal was without just cause and excuse, as the company had failed to prove on a balance of probabilities that Fatin Syazana was guilty of the allegations against her. It found that: (a) on the allegations of misconduct in the show cause letter that were not mentioned in the termination notice, the company’s witnesses failed to specify the details with certainty and clarity, and although the company alleged that she had failed to follow certain practices of which she was fully aware, the company had no rules, regulations or policy requiring employees to follow them; (b) on the alleged poor work performance in failing to report for work after the show cause letter, the company did not dispute that the allegation was unsubstantiated, as it had no system for recording attendance, and her evidence showed that she continued to carry out work after receiving the show cause letter, even though the company had revoked her access to its system; (c) on the alleged failure to meet the sales target or KPI, the company produced no evidence that an individual target had been set for her, no appraisal had been done, no prior warning had been issued, and she was given no opportunity to improve (had poor performance been proven); (d) on the allegation that she attempted to defraud or cheat the company to achieve her sales KPI, the company produced no cogent evidence of fake orders, and the evidence showed that its management had encouraged the sales team to place orders and support clients; on the allegation that she pulled out riders and assigned jobs to herself, no complaints had been lodged against her, and the evidence showed that she was assisting deliveries of orders as a rider during the peak Valentine’s Day period, a common practice acknowledged by the company’s management; and (e) on the allegation of misconduct in making unreasonable and baseless allegations to the company’s founder and CEO without approval and permission from her superior, the company had no rules, regulations or policy to be followed in doing so.

The Court found that the company had not been forthright about the circumstances leading to the dismissal, and that it had suppressed material witnesses, which led to the conclusion that their evidence would be damaging to the company’s case. As Fatin Syazana had not completed 1 year of service, she was not entitled to compensation in lieu of reinstatement. Taking her post-dismissal earnings into account, the Court awarded her backwages of RM63,900.00 only, less statutory deductions.

Our firm represented the claimant.

Industrial Court | Award No. 1068 of 2022 | 8 June 2022

Background

Wong Kien Tat was the company’s Service Manager. By a Deed of Release executed between him and the company on 11 February 2019, his employment was terminated on the ground of redundancy effective 10 March 2019. He contended that he was left with no choice but to execute the Deed of Release, as his superior told him that his role of Service Manager would be permanently moved to Singapore, that he was therefore redundant, and that there was no alternative position for him in the company. He contended that he was in fact not redundant, since his duties and responsibilities still existed and had been taken over and performed by a newly created role in Singapore.

Decision

The Industrial Court held that the dismissal was without just cause and excuse. It found that the company’s restructuring exercise was a colourable exercise designed to rid Wong Kien Tat of his position, and that the Deed of Release was nothing more than a façade to protect the company from the legal repercussions of its decision to retrench him; the retrenchment had been decided and would have been carried out whether or not he signed the Deed of Release. There was no evidence that the company was suffering losses to justify the restructuring and retrenchment exercise, and the company failed to convince the Court that the selection process identifying his position as redundant was carried out in a bona fide manner. He was the only employee retrenched in the restructuring exercise, and the evidence showed that the duties and responsibilities of the newly created role in Singapore were similar to those of his role.

The Court awarded him full backwages, with a 20% deduction for his post-dismissal earnings, and compensation in lieu of reinstatement, less the retrenchment benefits paid to him by the company.

Our firm represented the claimant.

Industrial Court | Award No. 1151 of 2022 | 14 June 2022

Background

Zamri bin Zakaria was the company’s Branch Manager. He claimed that he was called to a meeting on 26 June 2019, attended by the company’s General Manager (GM), Senior Area Manager (SAM) and Training Area Manager, at which the GM questioned him about the default of the 3rd cheque he had issued, for the amount of RM1,000, payable under a Settlement Agreement between him and the company. His case was that he had been compelled to enter into the Settlement Agreement, an express term of which required him to pay back or top up a total sum of RM20,000.00 to his Security Deposit Account with the company (SD Account) in instalments, by 20 post-dated cheques of RM1,000.00 each over the next 20 months commencing from April 2019. He pleaded that if he had not agreed to execute the Settlement Agreement, the company would not have allowed him to withdraw RM20,000.00 from his SD Account to recover the short-banking, although there was a sufficient balance in the account.

He further claimed that at the meeting on 26 June 2019 he was asked to repay the balance sum of RM18,000.00 immediately, which he was in no way able to do. He claimed that when he returned to the meeting after his Asar prayer, he was handed a pre-typed resignation letter, which the GM forced him to sign. He claimed before the Industrial Court that the company forced him to resign and punished him excessively for his short-banking, through the deduction of RM20,000.00 from his SD Account, the subsequent execution of the Settlement Agreement, the stern warning issued to him and finally his forced resignation, so that his dismissal was without just cause and excuse.

Decision

The Industrial Court found that the resignation letter was prepared by the SAM at Zamri’s request. No evidence was led to prove that he was forced to resign as alleged; among other things, he took no steps to nullify the resignation by lodging a police report or a complaint to upper management. The Court found as a fact that it was his own decision to resign, because he was unable to honour the terms of the Settlement Agreement, coupled with the mismanagement of funds by his branch. Accepting the company’s evidence, it held that the execution of the Settlement Agreement must be seen as a mechanism to assist him to pay off the shortage of RM20,000.00, on which he had defaulted at an early stage. As the Court found that he had resigned voluntarily, his claim was dismissed.

Our firm represented the claimant.

Labour Court | Kes Saman Ketua Pengarah Tenaga Kerja No. KBR/11401/2022/0278 | 16 November 2022

Background

Jeyani @ Jeyamani a/p Sinnakaruppan (Ms. Jenny) brought a claim against her former employer, Mr. John Macleod, under section 69(1)(a), (b) and (c) of the Employment Act 1955 for one month’s salary and 21 days of unutilised annual leave, totalling RM5,100.00.

Mr. John Macleod employed Ms. Jenny as a domestic worker under a contract of employment for a minimum of one year. The contract entitled her, among other things, to three weeks of paid annual leave a year. Clause 7 (Termination) allowed either party to end the contract with at least four weeks’ notice, and stipulated that “if employer breaks contract 2 months’ pay is guaranteed to the employee”. On 24 January 2022 Mr. John Macleod terminated her employment with immediate effect, without the four weeks’ notice, and paid her only one month’s salary. Ms. Jenny claimed the outstanding one month’s salary under Clause 7, on the basis that he had broken the contract, together with her unutilised annual leave.

Mr. John Macleod contended that Ms. Jenny had broken the contract by failing in her obligation to prioritise the care of his son, Leo. He relied on an incident on 21 January 2022, when she left Leo alone at Kids Nation after dropping him off there.

Ms. Jenny’s evidence was that (1) Mr. John Macleod’s wife had instructed her to drop Leo off at Kids Nation on 21 January 2022 for a school outing and to collect him from the school at the usual hour, as the school would bring the children back from Kids Nation. When she went to collect him, the school told her that Leo was absent and that the outing was scheduled for the following week, 28 January 2022. Mr. John Macleod admitted in cross-examination that his wife had mistaken the date of the outing and so gave Ms. Jenny the wrong instructions. On learning this, Ms. Jenny ran to Kids Nation at once and picked Leo up; (2) Mr. John Macleod further admitted in cross-examination that Ms. Jenny was not instructed to accompany Leo at Kids Nation throughout the event, and that the instruction was merely to drop him off there. In addition, she was not instructed to hand him over to any particular person, nor told to call anyone before she could leave him at Kids Nation and return to the house to do her usual cleaning. Her case was that she had acted reasonably and in full compliance with her employers’ instructions, and had not failed to prioritise Leo’s care.

Issue

Whether Ms. Jenny had broken the contract of employment by failing to prioritise the care of Leo, and whether she was entitled to the outstanding one month’s salary under Clause 7 and her unutilised annual leave.

Decision

The Labour Court allowed Ms. Jenny’s claim and ordered Mr. John Macleod to pay her the outstanding one month’s salary of RM3,000.00.

Our firm represented the complainant.

Court of Appeal | Civil Appeal No. W-01(A)-79-02/2020 | 26 March 2021

Background

Tenaga Nasional Berhad (TNB) dismissed Nageswararo a/l Sannasy and Sabri bin Yahaya on the allegation that they had carried out unauthorised modification works at the five-foot way of a premises, causing excessive voltage and a disruption of the electricity supply throughout the neighbourhood. In their representation for unfair dismissal, the Industrial Court in Award No. 497/2019 held that TNB had failed to prove the allegation on a balance of probabilities, and that their dismissal was without just cause and excuse. The High Court dismissed TNB’s application for judicial review of the Award, and TNB appealed to the Court of Appeal to quash the High Court’s decision.

Decision

The Court of Appeal held that TNB’s appeal had no merit, as TNB was unable to establish any valid ground warranting appellate intervention. In particular, TNB failed to prove how the Industrial Court had erred in drawing an adverse inference against it for failing to call the material witness, Mr. Chen, to give evidence before the Industrial Court; Mr. Chen was the complainant who had allegedly identified the respondents as the persons who carried out the unauthorised works at his house. The High Court’s judgment and the Industrial Court’s Award were upheld, with costs ordered against TNB.

Our firm represented Nageswararo a/l Sannasy and Sabri bin Yahaya.

Court of Appeal | Civil Appeal No. W-01(A)-33-01/2020 | 27 April 2021

Background

Rajesh Dilip Wadhwani, a Senior Manager of the Insight Administration Team, was dismissed by Hitachi Data Systems Sdn. Bhd. on several allegations of unprofessional and abusive behaviour towards staff, in particular that he had breached the company’s policy on Global Workplace Violence. The Industrial Court in Award No. 881/2019 held that the dismissal was with just cause and excuse, as his conduct in all the circumstances was inconsistent with the trust and responsibility the company had reposed in him.

Rajesh Dilip Wadhwani applied to the High Court for judicial review of the Award on the grounds, among others, that the Industrial Court had committed errors of law and/or fact because the Chairman had completely failed in its fundamental duties by: (a) failing to conduct any investigation, analysis or evaluation of the facts and evidence presented by both parties, and instead copying and pasting the parties’ submissions in reaching the decision; (b) failing to make any finding of fact on whether he had committed the misconduct for which he was dismissed; and (c) failing to give any reason or justification for the decision. The High Court dismissed the application and upheld the Award, and he appealed to the Court of Appeal.

Issue

Whether the Industrial Court committed errors of law and/or fact by failing to evaluate the facts and evidence, failing to make findings of fact on the alleged misconduct, and failing to give reasons for its decision.

Decision

The Court of Appeal held that neither the Industrial Court nor the High Court had committed any appealable error. The appeal was dismissed with costs, and Industrial Court Award No. 881/2019 stands.

Our firm represented the claimant.

Court of Appeal | Civil Appeal No. W-01(A)-14-01/2020 | 10 May 2021

Background

Malayan Banking Berhad dismissed Suziyana binti Mohd Zin for poor performance. The Industrial Court held that the dismissal was without just cause and excuse because, among other reasons, the bank had failed to comply with its own Guidelines in several respects in placing her under the Consequence Management Programme (a Performance Improvement Plan), and had failed to give her the assistance, guidance, coaching and training she needed to improve. The bank applied for judicial review of the Award. On 5 December 2019 the High Court dismissed the application, holding that the Chairman had committed no error in reaching his decision. The bank appealed to the Court of Appeal to quash the High Court’s decision.

Decision

The Court of Appeal unanimously found merit in the bank’s appeal, holding that the Industrial Court had erred in reaching its decision. It allowed the appeal with costs, and quashed the High Court’s judgment and Industrial Court Award No. 2822/2018.

Our firm represented Suziyana binti Mohd Zin.

Court of Appeal | Civil Appeal No. W-01(A)-191-03/2020 | 5 October 2021

Background

Avani Sepang Goldcoast appealed against the High Court’s decision of 25 February 2020 dismissing its application for judicial review of Industrial Court Award No. 1739 of 2019 dated 13 June 2019. The Industrial Court had held that the company’s dismissal of Bawani a/p Maruthapillai, a Spa Manager, was without just cause and excuse, as the company could not prove that she was guilty of the three charges of misconduct for which she was dismissed, which alleged that she had behaved in an abusive, discriminative and intimidating manner towards her spa team members.

In the High Court, the company argued that the Industrial Court had erred in refusing an adjournment of the hearing fixed for 14 to 16 May 2019. The company’s solicitors had discharged themselves on 22 April 2019. When the matter came up for mention at the Industrial Court, the company’s Director of Human Resources told the Industrial Court that the company was looking for new solicitors, but made no request to postpone the hearing, and the Court directed that the hearing dates be maintained. On 8 May 2019 the company’s new solicitors wrote to the Industrial Court, in a letter the Court received only on 10 May 2019, stating that they had just been appointed and seeking a postponement, without giving any justification for it. The Industrial Court then wrote twice to both parties’ solicitors directing them to attend with their witnesses for the hearing on 14 to 16 May 2019.

On 14 May 2019, the first day of the hearing, neither the company’s new solicitors nor any of its witnesses attended. The Director of Human Resources again sought an adjournment, without any reasonable explanation beyond saying that the witnesses were absent because the new solicitors could not attend that day. The Chairman exercised the power under section 29(d) of the Industrial Relations Act 1967 and directed the hearing to proceed, allowing the Director of Human Resources to act for the company under section 27 of the Act.

The High Court held that, on these facts, the Industrial Court had not erred in refusing the postponement, and dismissed the application for judicial review with costs.

Issue

Whether the Industrial Court erred in refusing the company an adjournment of the hearing fixed for 14 to 16 May 2019.

Decision

The Court of Appeal unanimously held that the company’s appeal had no merit, on grounds that included the following: (a) the company’s request for a postponement was made by its new solicitors in the letter of 8 May 2019, which gave no reason for the postponement beyond stating that the solicitors were not free on the hearing dates; and (b) although they knew the adjournment requested in that letter had not been granted, the company’s solicitors did not arrange for counsel to stand in for them on the hearing date, and none of the company’s witnesses attended. The Court of Appeal considered that these facts showed that the company had no intention of proceeding with the hearing. It added that it is not acceptable for solicitors to accept a brief on condition, as the company’s solicitors had done here by accepting the brief subject to the Industrial Court allowing their application for an adjournment. The company’s appeal was dismissed.

Our firm represented the claimant in all three proceedings.

High Court | Civil Appeal No. CB-16-5-11/2020 | 17 February 2021

Background

The respondents, a security guard and a general worker, were alleged to have breached Syarikat Penanaman Bukit Senorang Sdn. Bhd.’s instructions and Guidelines on COVID-19 during the MCO period. The company did not pay them their half month’s salary because of its own finding, after the domestic inquiry, that they were guilty of the alleged wrongdoing. The respondents complained, and the Labour Department ordered the company to pay the unpaid salary.

The company applied for leave to appeal out of time. It contended that, on the representation of an officer of the Labour Department, it had until 27 November 2020 to appeal, as the 14-day limit ran from 13 November 2020, when it received the Order, although the Order was dated 6 November 2020. The respondents’ evidence showed that the company’s Assistant Manager, who was present at the Labour Department on 6 November 2020, acknowledged and received the Order on the day it was handed down. The respondents also submitted that Order 55 rule 2 of the Rules of Court 2012 sets a mandatory limit of 14 days from the date of the decision for an appeal to the High Court, and that the Labour Department has no jurisdiction to extend time without an application for leave to extend time to appeal.

Issue

Whether the company should be granted leave to appeal out of time against the Labour Department’s Order dated 6 November 2020.

Decision

The High Court dismissed the company’s application with costs of RM6,000.00 subject to allocator, and the appeal was dismissed.

Our firm represented the respondents.

High Court, Kuala Lumpur | Judicial Review Application No. WA-25-201-07/2020 | 5 August 2021

Background

In Industrial Court Award No. 706 of 2020, the Industrial Court held that Xtend Services Sdn. Bhd.’s dismissal of Johnny Lee Yuen Kun, the second respondent, was without just cause and excuse because he was not redundant, and awarded him compensation in lieu of reinstatement and backwages. The company applied for judicial review on the grounds that the Industrial Court had erred, among other things, in: (a) holding that Johnny Lee Yuen Kun was dismissed by the company’s letter of MSS dated 2 January 2018; (b) holding that he was not redundant; and (c) awarding him backwages. On the last ground, the company contended that under Practice Note No. 3 of 2019 issued by the President of the Industrial Court, backwages are awarded only where reinstatement is ordered, so that backwages should not be granted where, as here, compensation in lieu of reinstatement was ordered instead.

Issue

Whether the Industrial Court erred in finding that Johnny Lee Yuen Kun was dismissed by the MSS letter and was not redundant, and in awarding him backwages alongside compensation in lieu of reinstatement.

Decision

The High Court dismissed the company’s application, holding that the Industrial Court had committed no error in reaching its Award. The Judge did not accept the company’s contention on Practice Note No. 3 of 2019 and the order of backwages. The application for judicial review was dismissed with costs and the Award upheld.

Our firm represented the second respondent, Johnny Lee Yuen Kun.

High Court, Kuala Lumpur | Judicial Review Application No. WA-25-213-07/2020 | 11 August 2021

Background

In Industrial Court Award No. 694 of 2020, the Chairman held that the following series of actions by Matrix Power Network Sdn. Bhd. towards Theva Pragash Kanapathy amounted to constructive dismissal: (a) failing to pay the employer’s EPF and SOCSO contributions, and failing to remit his own EPF, SOCSO and PCB contributions to the relevant authorities although the amounts had been deducted from his monthly salaries; (b) failing to pay his monthly salaries in full, and paying them late; (c) failing to give him office space after the company moved to new premises, and deleting the email account he was actively using for work; and (d) attempting to convert him from a permanent employee to a consultant on contract by a backdated offer letter accompanied by a pre-prepared notice of resignation for him to sign. The Industrial Court held that the dismissal was without just cause and excuse, and the Chairman later handed down a Rectification Award to rectify the quantum of backwages awarded.

The company applied for judicial review on the grounds, among others, that the Industrial Court had erred in: (i) failing to appreciate that the failures in (a) and (b) were unintentional and due to the company’s financial difficulties and cash flow problems, and that the failure to pay salaries affected all its employees and not Theva Pragash Kanapathy alone; (ii) failing to appreciate that he had failed in his duty to submit the sales tracking report and had been absent from work for about three months; and (iii) handing down the Rectification Award without basis or justification, and acting ultra vires its jurisdiction in doing so.

Issue

Whether the Industrial Court erred in finding constructive dismissal, and in handing down the Rectification Award.

Decision

The High Court held that the Chairman had committed no error in reaching either Award. The company’s application for judicial review was dismissed with costs, and both Awards of the Industrial Court were upheld.

Our firm represented the claimant.

High Court | Civil Appeal No. AA-16-5-09/2020 | 7 October 2021

Background

F.Y. Sdn. Bhd. appealed against the decision of the Deputy Director of the Labour Court delivered on 25 August 2020, which allowed the claims of the ten respondents under section 69 of the Employment Act 1955 for wages for work on rest days, overtime payment and wages for work on public holidays, and dismissed their claim for non-payment of annual leave. The Labour Court ordered the company to pay the respondents a total of RM115,796.86 with interest at 8% per annum.

The company supplies frozen chicken products. The respondents were employed as drivers or assistant lorry drivers, driving the company’s lorries from its factory to the farms to catch live chickens and transport them to the factory for processing, and doing what was needed to keep the chickens alive on the journey, such as bathing them. Although their contracts were labelled “Kontrak untuk Perkhidmatan” / Driver Agreement, the Labour Court concluded that the respondents were employees under the Employment Act 1955, hired under a contract of service and not a contract for service as independent contractors, applying multiple tests: (A) Control test: the nature, extent and degree of control which the company exercised over the respondents showed that they were employees. The Vehicle Supervisor told them when to come to work; if they could not attend they had to inform the Supervisor or fill in a leave form; they followed a definite journey of work and a job scope and work flow set by the company, including the face scan and gate pass system; and they were bound by the working hours set by the Supervisor. (B) Statutory contributions: the company paid the employer’s EPF, SOCSO and EIS contributions for them. (C) The lorries, the main asset used in their work, were owned solely by the company; the respondents had no right, title or interest in them; the lorries were used solely for company business, to and from the company or other locations it agreed; and the company bore the insurance and risk of loss. (D) Economic reality test / exclusive services: they worked exclusively for the company and for no other individual or business. (E) Integration test: their work was integral to the company’s business of supplying frozen chicken products. (F) Payment by trip instead of fixed wages did not make them independent contractors, as such payment falls within the definition of “wages” in section 2 of the Employment Act 1955 (basic wages and all other payments in cash, except the items in sub-paragraphs (a) to (f)).

Issue

Whether the Labour Court was plainly wrong in concluding that the respondents were employees of the company under the Employment Act 1955.

Decision

The High Court held that the Deputy Director of the Labour Court could not be said to be plainly wrong, as the evidence, applying the multiple tests, supported the conclusion that the respondents were employees of the company. The company’s appeal was dismissed with costs.

Our firm represented seven of the respondents; three had withdrawn their case on an out of court settlement.

High Court, Kuala Lumpur | Judicial Review Application No. WA-25-425-09/2019 | 11 October 2021

Background

Sarimala Naidu a/p N. Ramakrishnan and 18 others applied for judicial review of Industrial Court Award No. 1743 of 2019 handed down on 13 June 2019, in which the Chairman held that HSBC Bank Malaysia Berhad’s dismissal of the applicants by retrenchment was with just cause and excuse. The applicants were Telebanking Officers or Call Centre Team Leaders in the bank’s Call Centre (CAL). The bank closed the CAL and outsourced its functions to another entity, HDPM, in Cyberjaya.

The applicants’ grounds included that the Chairman had erred in: (a) holding that there was actual redundancy for all the applicants, as the applicants contended that the bank had taken away the functions they performed in the CAL and given them to another group of employees at HDPM; and (b) holding that the bank’s restructuring by outsourcing the CAL’s operations to HDPM was a genuine, bona fide exercise in compliance with Bank Negara Malaysia’s Guidelines, which financial institutions such as the bank must observe when outsourcing banking operations. The applicants contended that the Chairman failed to appreciate that the bank had committed a major breach of the Guidelines by outsourcing its core functions to HDPM, and several other breaches, and that these breaches showed the outsourcing to be a mala fide exercise.

Issue

Whether the Industrial Court erred in finding actual redundancy and in finding that the outsourcing of the CAL to HDPM was a bona fide exercise in compliance with Bank Negara Malaysia’s Guidelines.

Decision

The High Court held that the Chairman had committed no error in reaching the decision, so there were no grounds on which the High Court could interfere with the Industrial Court’s well-reasoned decision. The applicants’ application for judicial review was dismissed with costs.

Our firm represented the applicants at both the Industrial Court and the High Court.

High Court, Ipoh | Judicial Review Application No. AA-25-25-12/2020 | 12 October 2021

Background

Setia Awan Properties Sdn. Bhd. applied for judicial review of Industrial Court Award No. 1423 of 2020 handed down on 28 September 2020, in which the Chairlady held that the company’s dismissal of Mohd Zawawi bin Undar was disproportionate to the misconduct for which he was dismissed, and too harsh. He had been dismissed for a fight with a colleague (COW-1) at the workplace in the presence of his superior. The Industrial Court held that the dismissal was without just cause and excuse because: (a) he had only pushed COW-1, and did not punch or strangle COW-1, cause COW-1 to fall or cause any injury; (b) the altercation arose from provocation by COW-1, who said to him words such as “bangang” and “kalau berani pukullah saya”; and (c) although his immediate superior was present, the superior did not intervene to stop the altercation escalating into a scuffle. The company was also found to have been unfair and biased in penalising him alone, issuing COW-1 neither a warning letter nor a show cause letter. The Industrial Court nevertheless deducted 30% from the backwages awarded, finding that he had contributed to his own dismissal by pushing COW-1.

Decision

The High Court found that the company’s application was riddled with breaches of the Rules of Court, including Order 53. It also found that the application had no merit and that the Industrial Court’s findings could not be said to be plainly wrong in the facts and circumstances of the case. The application was dismissed with costs.

Our firm represented the claimant at the High Court. MTUC represented the claimant at the Industrial Court.

Industrial Court | Award 4/2021 | 4 January 2021

Background

Yong Pui Yee, an Associate, was engaged under the four-year CIMB Fusion Programme, governed by the ACA Tripartite Training Programme. She was employed by Pricewaterhousecoopers (the company) in the first and second years and by CIMB in the third year, and was due to return to the company for the fourth year. At the end of her third year, the company informed her that the company and CIMB had jointly removed her from the Programme. She was instead offered a 12-month fixed-term contract, which she refused, and the company then told her that no offer letter would be issued to her. She claimed that the company had unfairly dismissed her.

Decision

The Industrial Court found that the company had not dismissed Yong Pui Yee, and dismissed her claim. It held that the CIMB Fusion Programme was a training programme offered to trainees, with separate fixed-term employment contracts offered by the company and CIMB, and was not itself a contract of employment. It was for the company or CIMB to assess her performance and decide whether to offer employment at the end of each fixed-term contract. The company was under no obligation to employ her under a third contract after her second contract, with CIMB, had expired and after the company and CIMB had decided to remove her from the Programme. The Court also held that warnings about poor performance or behaviour before termination were not essential here, first because she was a trainee and not a permanent employee. Secondly, the Court was of the view that she was employed by CIMB when she was removed from the Programme, so any performance evaluation during that employment did not involve the company, as the third fixed-term contract with the company had not even been executed when she was removed.

Our firm represented the claimant.

Industrial Court | Award 5/2021 | 4 January 2021

Background

Yong Pui Yee was employed as an Assistant Manager under the four-year CIMB Fusion Programme with PricewaterhouseCoopers (PwC), governed by the ACA Tripartite Training Contract. She was employed by PwC in the first and second years, and in the third year was employed by CIMB Investment Bank Berhad and promoted to Senior Associate. She was due to return to PwC for the fourth year. At the end of her third year, the bank informed her that the bank and PwC had jointly decided to remove her from the Programme because she had not met its performance expectations. She claimed that the bank had unfairly dismissed her.

Decision

The Industrial Court found that the bank had not dismissed Yong Pui Yee, as her fixed-term contract with the bank had expired by effluxion of time, and dismissed her claim. It held that the CIMB Fusion Programme was a training programme offered to trainees, with separate fixed-term employment contracts offered by PwC and the bank, and was not itself a contract of employment. It was for PwC or the bank to assess her performance and decide whether to offer employment at the end of each fixed-term contract. PwC was under no obligation to employ her under a third contract after her second contract, with the bank, had expired and after PwC and the bank had decided to remove her from the Programme. The Court also held that warnings about poor performance or behaviour before termination were not essential here, first because she was a trainee and not a permanent employee. Secondly, the Court was of the view that it was incumbent on her, as a trainee, to satisfy the bank as to her performance and job suitability, and it was reluctant to interfere with the management prerogative of the bank’s Training Organisation in deciding how to carry out the training and assess the trainee’s performance.

Our firm represented the claimant.

Industrial Court | Award 26/2021 | 6 January 2021

Background

Surendran Thuraisingam was employed by The Eceos Sdn. Bhd. as a Manager on six months’ probation, and his employment was terminated before the probation ended. He claimed that he had been unfairly dismissed. The company said that it terminated his employment because of his unsatisfactory work performance and misconduct.

Issue

Whether it was sufficient for the termination of Surendran Thuraisingam’s employment to be communicated by email without giving the reasons for the termination.

Decision

The Industrial Court held that, as the dismissal was undisputed, the burden was on the company to give firm reasons justifying it. The company failed to adduce sufficient evidence to prove its allegations of his rude attitude towards his reporting superior and his poor performance, and so failed to show that the dismissal was with just cause or excuse. The Court ruled that the company should have dealt with the alleged rude attitude through a proper process, by issuing a show cause letter, and should have followed up on the alleged poor performance, so as to give him an opportunity to explain and defend himself. The Court held that, by dismissing him without a proper process for dealing with the allegations, and without explaining its reasons, the company deprived him of the opportunity to defend himself, in clear violation of the principle of fairness, and that the unfair dismissal violated his right to livelihood, which is a fundamental human right to life. The Court awarded him 12 months’ backwages with a 10% deduction for post-dismissal earnings, totalling RM86,400.00, without compensation in lieu of reinstatement because he was still on probation when he was dismissed.

Our firm represented the claimant.

Industrial Court | Award 491/2021 | 22 March 2021

Background

Theva Pragash Kanapathy complained that Matrix Power Network Sdn. Bhd. had not complied with Industrial Court Award No. 694 of 2020 dated 1 June 2020. In that Award the Industrial Court held that he had been constructively dismissed, and ordered the company to pay him RM221,000.00 less statutory contributions within 60 days of the Award. The company did not pay the award sum.

Decision

The Court unanimously allowed an order of compliance against the company.

Our firm represented the claimant.

Industrial Court | Award 655/2021 (Interim Award) | 7 April 2021

Background

In Rama Shankar a/l Thiyaga Rajan’s claim for constructive dismissal against Dhaya Maju Infrastructure (Asia) Sdn. Berhad, the company applied under section 29(a) of the Industrial Relations Act 1967 and rule 12 of the Industrial Court Rules 1967 to be substituted as respondent by DMIA (M) Sdn. Bhd. Rama Shankar opposed the application. The decision was given as an Interim Award.

Legal principles

To succeed in an application to substitute a party, the court must be satisfied that the party named in the reference does not fully represent the interest of the employer. The more important consideration is whether substituting the proposed party is necessary to make the adjudication itself effective and enforceable.

Decision

The Chairlady, Puan Anna Ng Fui Choo, dismissed the application. The Court observed that one of the most relevant issues, if not the most important, in a dismissal case is who the employer is, and that it was entirely for the claimant to decide and name who had entered into the contract of employment with him and who had dismissed him. The company’s application at this stage, arguing that it had been wrongly named because it was not the claimant’s employer, was improper, and also late, as the company had not applied to the High Court to challenge the Ministerial reference. If it was pleaded in the company’s Statement in Reply that the company was not the claimant’s employer, the company could have led evidence to prove this at trial. The Court did not view the application as made bona fide, as extremely minor, or as one that would not prejudice the claimant in any way. The Chairlady considered that the claimant’s case could suffer serious repercussions if the wrong employer were named, as it could lead to his case being dismissed, which would definitely prejudice him. In dismissing the application, the Court imposed no liability on a party not proven to be the employer, particularly as the burden of proof in a claim of constructive dismissal lies on the claimant.

Our firm represented the claimant.

Industrial Court | Award 1057/2021 | 19 May 2021

Background

Johnny Lee Yuen Kun applied for an order on the non-compliance by Xtend Services Sdn. Bhd. with Industrial Court Award No. 706 of 2020 dated 1 June 2020. In that Award, on his claim that the company had unfairly dismissed him by a letter of Mutual Separation Scheme, the company was ordered to pay him RM106,425.48 less statutory contributions within 60 days of the Award. The company did not pay.

The company did not dispute its failure to pay. It claimed financial incapacity to comply, caused by losses for the years 2017 to 2019, following the financial impact of the COVID-19 pandemic from March 2020. Johnny Lee Yuen Kun pleaded that the company had filed an application for judicial review and obtained a conditional stay order from the High Court requiring it to deposit the award sum into his solicitors’ client account to be held on trust, but had failed to do so without contacting his solicitors or explaining the non-compliance. He submitted that financial incapacity in itself is not a special circumstance.

Issue

Whether the company’s claimed financial incapacity justified its non-compliance with Award No. 706 of 2020.

Decision

The Court held that there were no special circumstances to justify the company’s non-compliance, as the company’s financial position should not be taken into consideration as a ground for non-compliance. The Court ordered the company to comply with the Award and pay the award sum within 14 days of the date of this Award.

Our firm represented the claimant.

Industrial Court | Award 1061/2021 | 20 May 2021

Background

Shafrul Din bin Sahul Hameed, a Sous Chef, received an Employee Warning Notice alleging that he had failed to follow Bangi Resort Hotel Sdn. Bhd.’s Standard Operating Procedure (SOP) in preparing food and was trying to cheat, and then attended a meeting with the company’s officers. He claimed that at the meeting he was forced to resign under threat that, if he did not and the matter went to a domestic inquiry, he would be blacklisted and his salary and balance of annual leave would be forfeited.

It was undisputed that: (a) he tendered his resignation on the day of the meeting, and the company accepted it the same day; and (b) the next day he wrote to the company retracting his resignation, stating that he had been forced to resign at the meeting, and the company rejected the retraction in its reply six days later. The company maintained that he had resigned voluntarily to avoid possible disciplinary action, having admitted his failure to follow the SOP by writing on the Employee Warning Notice that he “will follow SOP standard”.

Decision

The Industrial Court held that the company had forced Shafrul Din to resign, and that the company had failed to prove on a balance of probabilities that the forced resignation, which amounted to a dismissal, was with just cause or excuse. It found that: the SOP he had allegedly breached was never produced to show the legitimacy of the allegation; the company’s evidence did not establish that it had investigated the alleged non-compliance with the SOP; the alleged dishonesty was never proved; the company was already prepared to dismiss him at the meeting, as it already had information on his past disciplinary misconduct and provided a computer for him to prepare his resignation letter after the meeting; and at the meeting he was demanded to tender his resignation with 24 hours’ notice and was put under the impression that he would face potential damage to his career of more than 20 years as a chef in the hotel industry if the disciplinary process ensued. After taking his post-dismissal earnings into account, the Court awarded him backwages and compensation in lieu of reinstatement totalling RM106,407.00, less statutory deductions.

Our firm represented the claimant.

Industrial Court | Award 1639/2021 | 11 November 2021

Background

Teng Weng Loong applied to join the four partners of the firm Tetuan Radzi Sheikh Ahmad & Sachpal (the proposed parties) as parties to his Industrial Court case. While disputing the validity of the employment letter, the firm contended that: (a) the proposed parties were not his employer, and the employer named in the purported employment letter was the firm only; (b) there was no sufficient or reasonable nexus between the firm and the proposed parties, as he had not proved that the partnership existed at the time of his employment and termination; and (c) his delay in filing the application was prejudicial to the proposed parties.

Decision

The Court allowed the application to join the four partners, on the following grounds: (a) none of the proposed parties had filed any evidence or affidavit contradicting the prima facie evidence adduced by Teng Weng Loong or supporting the firm’s contentions; (b) there was a sufficient or reasonable nexus between the proposed parties and the firm, as the partners had joint authority, power and responsibility to decide on his employment and termination, and so would be jointly and severally liable for any Industrial Court award; (c) the joinder was necessary to enforce any award of the Industrial Court; and (d) no rule or law imposed a time limit for a joinder application, and the joinder was not prejudicial because the substantive merits had yet to be heard and the proposed parties would have an opportunity to defend themselves at the substantive hearing.

Our firm represented the claimant.

Court of Appeal | Civil Appeal No. WA-02(A)-466-03/2019 | 12 February 2020

Background

Surendran Thuraisingam claimed that The Eceos Sdn. Bhd. had unfairly dismissed him with effect from 31 May 2013. The company argued that no dismissal took place on 31 May 2013, only on 1 June 2013, as the notice of termination told him that his last working day would be the end of May. The Industrial Court held that the dismissal took place only on 1 June 2013, so there was no dismissal on 31 May 2013 as he had complained, and struck off his claim for want of jurisdiction on the basis that his representation was premature.

On his application for judicial review, the High Court held that the Industrial Court’s decision was tainted with error of law, irrationality and unreasonableness. The effective date of dismissal was 31 May 2013, so the want of jurisdiction on which the Industrial Court struck off his representation was no longer tenable, and the representation was clearly not premature. The High Court allowed the application and remitted the case to the Industrial Court for re-hearing on the merits, namely whether his dismissal was without just cause and excuse. The company appealed to the Court of Appeal.

Decision

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

Our firm represented the claimant.

Court of Appeal | Motion No. D-08-182-05/2019 | 21 July 2020

Background

The High Court dismissed Dominion Rubber Co. (M) Sdn. Bhd.’s appeal and upheld the Labour Court’s decision in favour of Razali bin Mat Daud and 65 other workers. The company then filed a notice of motion for leave to appeal to the Court of Appeal. It relied on a single ground: that there was an important question of law, never before decided by any court, for determination by the Court of Appeal, namely: “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?”

Issue

Whether the company’s proposed question raised a novel and important question of law warranting leave to appeal to the Court of Appeal.

Decision

After hearing counsel for the company and Messrs. Muhendaran Sri for the 66 workers, the Court of Appeal unanimously held that there was no novel issue of law to be determined and that the dispute was fact-based. It dismissed the notice of motion with costs.

Our firm represented the 66 workers.

Court of Appeal | Civil Appeal No. W-01(A)-627-11/2019 | 25 November 2020

Background

Yeo Hiap Seng (Malaysia) Berhad applied for judicial review of an Industrial Court Award in which the Chairman held that the punishment of dismissal imposed on the claimant was too harsh. In the Industrial Court the claimant had admitted the misconduct and shown remorse, but disputed the proportionality of his punishment. In the High Court the company contended, among other things, that the Industrial Court had erred in law in granting the claimant a lump sum of RM42,336.00, being the retirement benefits he would have been entitled to had he not been dismissed. The High Court dismissed the application and upheld the Industrial Court’s decision, and the company appealed to the Court of Appeal.

Decision

The Court of Appeal found merit in the company’s appeal and ordered that the High Court Order be set aside. The appeal was the first that Muhendaran Sri conducted by way of E-Appellate hearing (via Zoom).

Our firm represented Abdul Azis bin Isa.

High Court, Kuala Lumpur | Judicial Review Application No. WA-25-197-05/2019 | 14 January 2020

Background

Nageswararao a/l Sannasy and another employee of Tenaga Nasional Berhad were alleged to have carried out unauthorised electrical works at the five-foot way of a premises, which led to excessive voltage and disrupted the electricity supply throughout the neighbourhood. They were dismissed. The Industrial Court held that Tenaga Nasional Berhad had failed to prove the charges on a balance of probabilities, so that the dismissals were without just cause or excuse, and ordered the company to pay the second claimant RM75,732.00. Tenaga Nasional Berhad applied for judicial review of the award.

Decision

The High Court dismissed the application and upheld the award of the Industrial Court.

Our firm represented the second claimant.

High Court | Judicial Review Application No. WA-25-367-08/2019 | 25 February 2020

Background

Bawani a/p Maruthapillai was alleged to have uttered abusive, bullying and discriminative words towards her subordinates. The company held an inquiry and then dismissed her. The Industrial Court held that the dismissal was without just cause or excuse, as the company had failed to discharge the burden of proving that she was guilty of the allegations.

The company applied for judicial review, contending that the Chairman of the Industrial Court had erred in refusing a postponement of the hearing requested by its Human Resource Manager. The postponement was sought because its previous solicitors had discharged themselves and its newly appointed solicitors were not available to attend the hearing as scheduled.

Issue

Whether the Chairman of the Industrial Court erred in refusing the postponement requested by the company.

Decision

The High Court held that the Chairman of the Industrial Court had committed no error in arriving at the award, and dismissed the company’s application with costs.

Our firm represented the claimant.

High Court | Judicial Review Application No. PA-25-17-04/2019 | 6 July 2020

Background

Kesatuan Pekerja-Pekerja Perkilangan Perusahaan Makanan (Food Union) applied for judicial review of Industrial Court Award No. 75/2019 dated 7 January 2019, which incorporated Article 4.5 into the first collective agreement 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”.

Food Union’s grounds included that Article 4.5 was not in line with the provisions of the Industrial Relations Act 1967, that it would infringe the rights of the union’s members and lead to union busting, and that it would give the company absolute rights to replace any member of the Union Works Committee.

Issue

Whether Article 4.5 should be quashed from the award on the grounds raised by Food Union.

Decision

The High Court held that Article 4.5 was worded rather too widely and could easily be abused by the company. It allowed Food Union’s application and granted an order of certiorari quashing Article 4.5 from Industrial Court Award No. 75/2019.

Our firm represented Food Union.

High Court | Judicial Review Application No. WA-25-385-08/2019 | 28 July 2020

Background

Tengku Mohd Hasmadi bin Tengku Hashim, the Chief Operating Officer / Executive Director of Konsortium Transnasional Berhad (KTB), claimed constructive dismissal on the basis that KTB had circulated a memorandum to all its personnel announcing that the 27-year-old son of its Chairman / Managing Director would take over a considerable portion of his responsibilities, without his prior knowledge or consultation and in breach of the Limits of Authority set by the Board of Directors. KTB had purportedly undertaken a restructuring, which was only a rearrangement of his roles and responsibilities.

The Industrial Court held that Tengku Mohd Hasmadi had established that KTB breached the essential implied term of the contract of employment, to preserve the relationship of mutual trust and confidence between employer and employee. It ordered KTB to pay him RM2,455,515.00 together with KTB’s contributions towards his EPF (18%). KTB applied for judicial review to quash the award.

Decision

The High Court ruled that there was no merit in KTB’s application and upheld the award of the Industrial Court.

Our firm represented the claimant.

High Court | Judicial Review Application No. WA-25-472-10/2019 | 6 August 2020

Background

On 1 January 2016 Assunta Hospital terminated the employment of Gill Satwant Singh by way of statutory retirement, on the basis that his age of 82 was well above the minimum retirement age under the Minimum Retirement Age Act 2012, coupled with the allegation that he had not been able to comply with his clinical services at the hospital.

The Industrial Court held that the termination was lawful, by way of retirement under section 4 of the Minimum Retirement Age Act 2012, as he had attained and surpassed the minimum retirement age of 60. It held that it was completely unnecessary to consider whether he was no longer providing clinical services to the hospital. Messrs. Muhendaran Sri, acting for Gill Satwant Singh, applied to the High Court for an order of certiorari to quash the award.

Decision

The High Court allowed the application, on the ground that section 4 of the Minimum Retirement Age Act 2012 did not apply to Gill Satwant Singh because one Mother Mary Xavier from the hospital had assured him that he could work at the hospital for as long as he wished. The judge held that the existence of the assurance was a finding of fact made by the High Court in previous proceedings between the same parties, Dr. Satwant Singh Gill v Hospital Assunta [1998] 4 CLJ 47, which the Court of Appeal later upheld in Civil Appeal No. W-04-31-1998. The High Court was therefore bound to follow that finding.

Our firm represented the applicant.

High Court | Judicial Review Application No. WA-25-350-07/2019 | 2 September 2020

Background

RHB Bank Berhad dismissed Siew Chee Keong for alleged misconduct, namely instructing or forcing his team members to channel referral fees to his brother and his wife, although neither of them was the actual referral of the sales. The Industrial Court held that no concrete evidence had been tendered to show that he was guilty of the alleged misconduct, other than his purported admission in the Interview Statement, which it found to be involuntary. It held that the dismissal was without just cause or excuse. The bank applied for judicial review of the decision.

Decision

The High Court held that the Chairman of the Industrial Court had committed no error in arriving at the award, and that there was no tenable ground on which the decision and findings of fact of the Industrial Court ought to be disturbed.

Our firm represented Siew Chee Keong.

Industrial Court | Award 276/2020 | 28 January 2020

Background

Murali Tharan Nair a/l G. Narayana Nair claimed that the company had unfairly dismissed him through a Mutual Separation Agreement (MSA) that he had signed involuntarily. The Head of Human Resource (COW-1) informed him that Group Human Resources would undergo restructuring and that his position would not exist, rendering him redundant. COW-1 then offered him a Mutual Separation Package (MSP). An MSA was prepared, and the Director of Human Resource of Hong Leong Group (COW-2) repeatedly asked him to sign it and at the same time to tender his resignation. Murali eventually signed and accepted the MSA under duress.

Issue

Whether Murali entered into the MSA of his own free volition.

Decision

The Court found that COW-1 and COW-2, senior officers of the company, had misrepresented to Murali that he had been found redundant in the restructuring of Group Human Resource, and that the MSP was offered so that he could leave the company without the stigma of retrenchment. He was clearly led into believing the misrepresentations and did indeed act to his detriment when he signed the MSA in reliance on them. The Court agreed with the submission of his counsel that he signed the MSA because of the consistent and persistent misrepresentation of redundancy by COW-1 and COW-2 and the intense pressure both of them exerted on him to accept it. The Court found that the MSA dated 5 February 2018 was not entered into of his own free volition, and that he had been dismissed without just cause or excuse. It directed the company to pay him a total of RM184,000.00, including the statutory contributions deducted from the award sum and the company’s own share of contributions to the relevant statutory bodies (including all interest and/or dividends payable on those contributions from the date of his dismissal).

Our firm represented the claimant.

Industrial Court | Award 294/2020 | 30 January 2020

Background

Khairulniza binti Khairudin, a Personal Finance Advisor, was dismissed by Malayan Banking Berhad for misconduct. The bank alleged that she had made false representations in eleven credit card applications she processed, which she had received by email, when she chopped ‘Originals Sighted’ on the application forms and supporting documents although the original documents had not been sighted. The bank alleged that her conduct breached its e-SPI on Cards: Operational Guidelines and Procedures, which require original documents to be sighted. Khairulniza contended that the e-SPI applied only to ‘Normal Application’, namely walk-in applications, and not to applications made by email.

Issue

Whether the bank had proved that Khairulniza made false representations in the eleven credit card applications, and whether the e-SPI applied to applications received by email.

Decision

The Court held that the bank had proved on a balance of probabilities that Khairulniza was guilty of making false representations in the eleven credit card applications when she chopped ‘Originals Sighted’ without sighting the originals. The Court held that her conduct constituted just cause and excuse for her dismissal, and dismissed her claim.

Our firm represented the claimant.

Industrial Court | Award 396/2020 | 14 February 2020

Background

Khairu Norliza binti Khairudin was employed by Kool FM Radio Sdn. Bhd. as a Radio Announcer under a one-year contract, which was extended for another year until 31 March 2016. Before it expired, the company offered her a further three-year contract as Radio Announcer from 1 April 2016 to 31 March 2019. In mid-2017 the company instructed her to set up a company in order to continue her employment as Radio Announcer with the company, and told her that a new contract would be entered into with her new company. She had no choice but to follow the instruction and set up LKD Empire Sdn. Bhd.

On 27 December 2017 the company entered into a Radio Announcer Performance Agreement with LKD Empire Sdn. Bhd. for her to provide her services as Radio Announcer from 1 December 2017 until 31 March 2019. By a letter dated 1 August 2018 the company terminated the agreement. Khairu Norliza claimed that the termination was an unfair dismissal. The company contended that there was no dismissal, as she was an independent contractor and not a workman of the company, and so was not entitled to bring a claim under section 20 of the Industrial Relations Act 1967.

Issue

Whether Khairu Norliza was a workman of the company entitled to bring a claim under section 20 of the Industrial Relations Act 1967.

Decision

The Court held that Khairu Norliza fell within the definition of a workman. It relied on the terms of the Radio Announcer Performance Agreement, her duties and responsibilities as Radio Announcer, which were an integral part of the company’s business, the fact that she alone provided the services under the agreement, and her obligation to provide her services exclusively to the company. The Court held that the company’s termination of the agreement amounted to a dismissal without just cause or excuse. It also accepted her argument that her employment was permanent in nature although her contract was for a fixed term, because her duties and responsibilities were permanent and the company hired someone else to take over her role after her dismissal. The Court awarded her RM133,000.00, payable by the company.

Our firm represented the claimant.

Status

The High Court quashed the award in 2023; the Court of Appeal reinstated it on 30 September 2024 and reduced the award sum to RM56,000.00.

Industrial Court | Award 595/2020 | 5 March 2020

Background

Itramas Technology Sdn. Bhd. was the sub-contractor for the engineering, procurement and construction of three large scale solar power plant projects. It employed Azrul bin Ab Latif @ Ab Latib as a Material Manager, particularly for the project at Jasin, Melaka, on a 12-month contract. Due to an internal restructuring, his employment was transferred to a wholly-owned subsidiary, ITRAMAS RE Services Sdn. Bhd., with effect from 1 August 2017.

As the Jasin project was not yet completed, ITRAMAS RE Services Sdn. Bhd. extended his contract from 3 July 2018 to 1 October 2018. The contract was extended again from 1 November 2018 to 31 January 2019, as the project was near completion, to enable him to perfect its documentation and records. On 19 December 2018 he received a letter of end of contract informing him that the company was giving him one month’s notice of termination and that his contract would end on 18 January 2019. Azrul claimed that he had been dismissed without just cause or excuse.

Issue

Whether Azrul’s contract was a genuine fixed-term contract.

Decision

The Court held that Azrul’s contract was a genuine fixed-term contract, dependent on the successful completion of the Jasin project. Unrebutted evidence showed that the project had been fully completed when the company ended his contract. Azrul had not pleaded in his Statement of Case that his employment was in fact permanent, and the company’s witnesses were not challenged on whether the fixed-term contract was genuine. As the contract was a genuine fixed-term contract, the question of a dismissal did not arise, and the Court dismissed his claim.

Our firm represented the company.

Industrial Court | Award 694/2020; Rectification Award dated 3 June 2020 | 1 June 2020

Background

Theva Pragash Kanapathy, the company’s Group Chief Marketing Officer, claimed that he had been constructively dismissed on 20 August 2018, on four grounds: (a) since March/April 2017 the company had failed to remit his share of EPF, SOCSO and PCB, which it had deducted from his monthly salary, to the relevant authorities, and had failed to make the employer’s contributions to his EPF and SOCSO; (b) since August 2017 the company had delayed paying his salary and begun paying salaries by instalments without his consent, and from December 2017 had failed to pay his salary in full, leaving salary overdue; (c) when the company moved to new premises in January 2018 it failed to provide him with an office, and in July 2018 it deleted his official email, both of which he said obstructed the performance of his duties; (d) on 9 July 2018 the company attempted to convert his permanent employment to a one-year contract, by a letter of offer backdated to 28 May 2018 together with a notice of resignation backdated to 1 May 2018 for him to sign.

Issue

Whether Theva Pragash had established the grounds on which he claimed constructive dismissal.

Legal principles

Payment of EPF, SOCSO and PCB is a fundamental term of an employment contract and a statutory obligation under the respective Acts of Parliament. Non-payment of salaries as and when they fall due is a fundamental breach of an employment contract.

Decision

The Court found that Theva Pragash had established all four grounds. It held that the company’s purported reason for delaying remittance of his EPF, SOCSO and PCB, namely the purported cash flow problems, was unacceptable, as payment of EPF, SOCSO and PCB is both a fundamental term of an employment contract and a statutory obligation under the respective Acts of Parliament. By deleting his email and failing to provide him with a workplace, the company breached his basic entitlement as an employee, which evinced a refusal to keep him in its employment any longer. The company failed to prove its allegations against him of absence from work and failure to submit a sales tracking report. The dismissal was therefore without just cause or excuse. The Court awarded him RM221,000.00, less statutory contributions, as backwages and compensation in lieu of reinstatement (see also the Rectification Award).

Our firm represented the claimant.

Industrial Court | Award 706/2020 | 1 June 2020

Background

Johnny Lee Yuen Kun claimed that Xtend Services Sdn. Bhd. had dismissed him by a letter of Mutual Separation Scheme (the MSS letter). The company contended that the letter was an offer, that it never terminated him, and that he had abandoned his employment and walked out by his letter dated 10 January 2018.

Issue

Whether the company terminated Johnny Lee’s employment by the MSS letter, or he abandoned his employment.

Legal principles

There must be a legal basis for an employer to offer an employee an MSS.

Decision

The Court found the company’s contention and the testimony of its two witnesses wholly inconsistent with the MSS letter, which stated in no uncertain terms that his “last day of service with the Company shall be 2nd January 2018” and never gave him any room to agree or disagree with the ultimatum. The company’s clear inaction and lack of response on receiving his letter of 10 January 2018 pointed incontrovertibly to the termination of his employment by the company on 2 January 2018. The Court held the company’s purported reason for offering him the MSS, namely the current state of shrinking and steep deterioration of the paging business since it shut down in 2015, implausible on the evidence. In the absence of cogent reasons for the termination, the dismissal was without just cause or excuse. The Court ordered the company to pay him RM106,425.48, less statutory contributions.

Our firm represented the claimant.

Industrial Court | Award 690/2020 | 1 June 2020

Background

Rosli bin Ismail claimed that Scania (Malaysia) Sdn. Bhd. had constructively dismissed him and forced him to resign, on the purported ground that it had put him in a position where he had to resign and that his transfer to Bukit Jelutong was not bona fide. The company contended that there had been a mutual separation and no dismissal, as he had signed a Separation Agreement and taken the benefits it provided.

Issue

Whether the transfer to Bukit Jelutong was bona fide, and whether Rosli was forced to sign the Separation Agreement.

Legal principles

A company has the right to transfer its employees.

Decision

The Court held that Rosli had failed to prove that the transfer was made to harass or victimise him. There was ample evidence that he did not carry out his tasks well, which justified the transfer as a means to monitor his performance and help him improve. He had also failed to discharge the burden of proving that he was forced to sign the Separation Agreement. There was no evidence of any repudiatory breach by the company or any breach of his contract of employment. The Court dismissed his claim.

Our firm represented the company.

Industrial Court | Award 1324/2020 | 11 September 2020

Background

Sukimi bin Saat was employed by Kop Mantap Berhad as Head of Business Development/Project Management Office. He was also appointed “Pentadbir” for two subsidiaries of the company on a temporary basis until the right candidate was identified, and was paid an allowance of RM2,000 per month for that role in each subsidiary. On 1 June 2018 there was a restructuring that included his roles, and he was asked to focus only on business development with effect from 5 July 2018. The company removed his roles as “Pentadbir” for the two subsidiaries and the allowance ceased.

Sukimi was then informed that he would be transferred to an Associate Company with effect from 15 December 2018, but he did not report for duty there as instructed. The company gave him another opportunity to report for duty at the Associate Company with effect from 1 February 2019. He again did not do so, and instead sent the company a letter claiming constructive dismissal and walked out of his employment with effect from 4 February 2019. Despite his disobedience of the company’s instructions and his conduct of abandoning his employment, the company, by a letter dated 18 February 2019, gave him a final opportunity to report for work at the Associate Company by 22 February 2019, which he did not do. The matter was then escalated to the Industrial Court.

Issue

Whether Sukimi had proved that he was constructively dismissed.

Decision

The Court held that Sukimi’s own evidence established that he had no complaint about the removal of his roles as “Pentadbir” or the cessation of the allowance. It was therefore clear that the reason for his claim of constructive dismissal was the company’s decision to transfer him to the Associate Company, which was well within the company’s rights under his contract of employment and the law on transfer. He produced no evidence that the company had acted mala fide or with ill intention in transferring him. The Court therefore concluded that no dismissal was proven, so the question of whether the dismissal was with just cause or excuse did not arise. The Court dismissed his claim.

Our firm represented the company.

Industrial Court | Award 1397/2020 | 22 September 2020

Background

Ong Fung Yin claimed that Klinik Revin had constructively dismissed her as its Clinic Manager, on the basis that it had failed to pay her salary for a few months and had changed the locks to her office, preventing her from entering the premises. Dr. Revinthranath, the sole proprietor of Klinik Revin, and Klinik Revin Sdn. Bhd. were later added as the second and third respondents by two separate Interim Awards. The first and second respondents contended that Ong Fung Yin was not an employee of the clinic and merely did work for it as the wife of the second respondent. They further contended that she was not paid salary, and that the monies transferred to her account were for their joint expenditure and household expenses as husband and wife, and that the clinic’s EPF contributions for her were a form of savings for their retirement.

Issue

Whether Ong Fung Yin was an employee of Klinik Revin, and if so whether she had been constructively dismissed.

Decision

The Court held that Ong Fung Yin had failed to produce any evidence that she was an employee of the clinic, such as correspondence signed off as “Clinic Manager, Klinik Revin” or records of her own salary slips and vouchers. It held further that even if she were a workman, she had failed to prove constructive dismissal: she adduced no evidence that she had brought the purported breach of failure to pay salaries to the attention of the first and/or second respondent, demanding that they rectify it, and that they had failed to do so. There had also been inordinate delay, as she waited more than four months before claiming constructive dismissal. The Court dismissed her claim.

Our firm represented the claimant.

Industrial Court | Award 1519/2020 | 12 October 2020

Background

The claimant’s solicitors, Muhendaran Sri, issued a subpoena to the applicant, a member of the Bar, to give evidence in the claim of Jagen a/l Manoharan against Agarcorp Sdn. Bhd. The applicant applied to set the subpoena aside. His grounds included that the subpoena was issued mala fide, that its service on him was illegal and/or improper, and that he had no personal knowledge of the matters relating to the claimant’s dismissal and so could not give any material evidence.

Issue

Whether the subpoena issued to the applicant should be set aside.

Decision

The Court found that the claimant had satisfied the test of materiality of a witness laid down in Wong Sin Chong & Anor v Bhagwan Singh & Anor. The correspondence before the Court showed the efforts of the claimant’s solicitors to serve the subpoena, so there was no issue of delay or of service at the eleventh hour. The applicant had been well aware, as early as February 2020, when the Statement of Case was filed, that he could be a potential witness in the proceedings. The Chairman commented that, as a member of the Bar, the applicant ought to be aware of the ethical rules governing the profession, namely Rule 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978. The application was dismissed and the subpoena against the applicant stands.

Our firm represented the claimant.

High Court | Permohonan Untuk Semakan Kehakiman No. WA-25-296-10/2018; [2019] 1 LNS 538 | 25 February 2019

Background

Surendran Thuraisingam claimed that the company had unfairly dismissed him with effect from 31 May 2013. The company argued that the dismissal took place only on 1 June 2013, and that no dismissal took place on 31 May 2013, as the notice of termination had told him that his last working day would be the end of May. The Industrial Court held that the dismissal took place only on 1 June 2013 and that there was no dismissal on 31 May 2013 as he complained. It struck off his claim for want of jurisdiction, as his representation was said to be premature. Surendran applied to the High Court for judicial review of the decision.

Issue

Whether Surendran’s dismissal took effect on 31 May 2013 or on 1 June 2013, and so whether his representation was premature.

Decision

The High Court held that the decision of the Industrial Court was tainted with error of law, irrationality and unreasonableness. The dismissal took effect on 31 May 2013, so the want of jurisdiction on which the Industrial Court had struck off the representation was no longer tenable, and the representation was clearly not premature. The High Court allowed the application and remitted the case to the Industrial Court for a re-hearing on the merits, namely whether the dismissal was without just cause or excuse.

Our firm represented the claimant.

Status

The company’s appeal to the Court of Appeal was dismissed.

High Court, Kota Bahru | High Court Appeal No. DA-16-1-04/2018 | 21 April 2019

Background

Dominion Rubber Co. (M) Sdn. Bhd. appealed from a decision of the Labour Court. The Director General of Labour Court had held that although the company was not a member of MAPA, it had adopted and followed the terms and conditions of employment in the collective agreement between MAPA and NUPW for the 66 complainants, who were members of NUPW, on each renewal of that agreement. The terms of the MAPA/NUPW agreement were therefore binding on the company, which was liable to pay the 66 complainants wages at the rate stipulated in the agreement instead of the minimum wages provided under the Minimum Wages Act 2013, and also liable to pay the ex-gratia payment.

Decision

The High Court dismissed the company’s appeal and maintained the decision of the Labour Court.

Our firm represented the 66 complainants.

Status

The company’s application for leave to appeal to the Court of Appeal was not granted.

High Court, Kuala Lumpur | Judicial Review Application No. WA-25-99-03/2019 | 4 October 2019

Background

Yeo Hiap Seng (Malaysia) Berhad applied for judicial review of an Industrial Court award which held that dismissal was too harsh a punishment for the claimant’s misconduct. The claimant had admitted his guilt and shown remorse, but disputed the proportionality of the punishment.

Decision

The High Court dismissed the company’s application, upheld the decision of the Industrial Court, and ordered costs of RM4,000.00 to be paid to the claimant’s solicitors, Messrs. Muhendaran Sri.

Our firm represented the claimant.

Status

The Court of Appeal allowed the company’s appeal and set aside the High Court’s order.

High Court, Kuala Lumpur | Civil Suit No. WA-22NCC-109-03/2019 | 24 October 2019

Background

Agarcorp Sdn. Bhd., the plaintiff, sued claiming, among other things, that the first defendant was liable to compensate it for breach of his contract, his fiduciary duty and trust, and that the sixth defendant was liable to account to it as a constructive trustee for dishonestly assisting in the first defendant’s breach of fiduciary duty. It also sought an injunction against the first to sixth defendants restraining them from using its confidential information and from soliciting and contracting with any of its existing customers or clients.

Decision

The High Court dismissed the prayer for an injunction. It ordered the first defendant to pay the plaintiff RM54,462.00, being the claim for the missing spare parts, and costs of RM35,000.00.

Our firm represented Jagen a/l Manoharan, the first defendant.

Status

On the first defendant’s appeal, the Court of Appeal set aside all the costs awarded against him and awarded him RM20,000 in costs of the appeal. It did not disturb the High Court’s finding that he had not proved that any commission was due to him.

High Court, Kuala Lumpur | Judicial Review Application No. WA-25-167-04/2019 | 8 November 2019

Background

Kesatuan Pekerja-Pekerja Honda Malaysia Sdn. Bhd. (Honda Union) applied to the High Court to quash a decision of the Industrial Court on the interpretation of an article of the collective agreement between Honda Malaysia Sdn. Bhd. and Honda Union, concerning maternity benefits where a female worker and her husband are both employees of the company.

Issue

Whether, under the collective agreement, a female worker and her husband who are both employees of the company are each entitled to claim the maternity benefits.

Decision

The High Court held that the Industrial Court had erred in its interpretation of the article by adopting the wrong approach to interpretation. The right interpretation was that the female worker and her husband, both employees of the company, are each entitled to claim the maternity benefits under the collective agreement, and not just one of them. The High Court allowed Honda Union’s application, quashed the decision of the Industrial Court, and ordered costs of RM4,000.00 to be paid to Honda Union’s solicitors, Messrs. Muhendaran Sri.

Our firm represented the union.

High Court, Kuala Lumpur | Judicial Review Application No. WA-25-191-05/2019 | 3 December 2019

Background

Mohammad Muhaimin Lau bin Abdullah applied for judicial review of an Industrial Court consent award, on the ground that it was entered without his consent and knowledge. The award was entered in the absence of both Mohammad Muhaimin, the claimant, and his representative from MTUC, with only the company’s solicitors present. The company’s solicitors informed the Court that the claimant’s representative had asked them to mention on his behalf, with the instruction that the claimant had agreed to the terms of settlement in the consent award.

Issue

Whether Mohammad Muhaimin had consented to the consent award.

Decision

The High Court quashed the consent award on the basis that Mohammad Muhaimin had given no consent to it, and held that the Industrial Court should be more cautious in recording a consent award when the claimant is not represented by solicitors and is not present. It ordered that his case be remitted to the Industrial Court for a re-hearing by another Chairman or Division of the Industrial Court, and awarded him costs of RM5,000.00.

Our firm represented the applicant.

High Court, Kuala Lumpur | Judicial Review Application No. WA-25-43-01/2019 | 5 December 2019

Background

Suziyana Binti Mohd Zin was dismissed by Malayan Banking Berhad (the bank) for poor performance. The Industrial Court held that the dismissal was without just cause and excuse for reasons that included the bank’s failure to comply with its own Guidelines on several aspects of placing her under the Consequence Management Programme (a performance improvement plan), and its failure to provide the assistance, guidance, coaching and training needed to help her improve her performance.

The bank filed a judicial review application to challenge the Industrial Court award.

Decision

The High Court dismissed the judicial review application and upheld the Industrial Court award. It held that the Chairman of the Industrial Court had committed no errors in arriving at his decision. The Chairman had fully evaluated and appreciated the evidence and facts presented before him and came to his findings with supporting reasoning. The High Court ordered costs of RM4,000.00 to be paid to Suziyana through her solicitors, Messrs Muhendaran Sri.

Our firm represented the respondent, Suziyana Binti Mohd Zin.

High Court | Judicial Review Application No. WA-25-262-06/2019 | 16 December 2019

Background

Rajesh Dilip Wadhwani was alleged to have committed several acts of misconduct and was dismissed by Hitachi Data System Sdn. Bhd. (the company). The Industrial Court held that the company had established the allegations of misconduct, and that Rajesh’s conduct was inconsistent with the trust and responsibilities reposed in him by the company. His dismissal was therefore held to be with just cause or excuse.

Rajesh filed a judicial review application in the High Court to challenge the Industrial Court award.

Issue

Whether the Chairman of the Industrial Court erred in failing to conduct any investigation or evaluation of the facts and evidence presented before him in deciding whether the allegations of misconduct had been proven against Rajesh.

Decision

The High Court held that the Industrial Court had committed no errors and dismissed Rajesh’s application with costs of RM5,000.00.

Our firm represented the claimant.

Status

Rajesh’s appeal to the Court of Appeal was dismissed with costs.

Industrial Court | Award 497/2019 | 11 February 2019

Background

Nageswararao a/l Sannasy and another claimant were alleged to have carried out unauthorised electrical works at the five-foot way of a premises, leading to excessive voltage which disrupted the electricity supply throughout the neighbourhood. Tenaga Nasional Berhad (the company) terminated the claimants.

Decision

The Industrial Court held that the company had failed to prove the charges against the claimants on a balance of probabilities. The company’s termination of the claimants therefore amounted to dismissal without just cause and excuse. The Court ordered the company to pay RM75,732.00 to the 2nd claimant.

Our firm represented the 2nd claimant.

Status

The company’s judicial review was dismissed by the High Court, and its appeal to the Court of Appeal was dismissed.

Industrial Court | Award 817/2019; [2019] 2 LNS 0817 | 28 February 2019

Background

Sundaresan a/l Ramachandran claimed that Jim’s (D.I.Y) & Landscape Sdn. Bhd. (the company) terminated him over a conversation with his direct superior on some work issues, in which derogatory words had allegedly been uttered to him.

Issue

Whether the company dismissed Sundaresan or he resigned voluntarily.

Decision

The Court held that the statement allegedly uttered to Sundaresan gave him a choice whether to work or not, and did not in itself amount to a dismissal or connote a termination of employment. Mere allegations, vague suggestions and insinuations were not enough. The Court was further of the opinion that Sundaresan had not even proved the utterance. He had failed to adduce any evidence of dismissal by the employer, and the Court held that he had resigned voluntarily and of his own accord. His claim was dismissed.

Our firm represented the company.

Industrial Court | Award 881/2019; [2019] 2 LNS 0881 | 7 March 2019

Background

Rajesh Dilip Wadhwani was alleged to have committed several acts of misconduct and was dismissed by Hitachi Data System Sdn. Bhd. (the company).

Decision

The Industrial Court held that Rajesh’s conduct, in the entire circumstances of the case, was inconsistent with the trust and responsibility reposed in him by the company in the employer-employee relationship. As his termination was found to be with just cause or excuse, his claim was dismissed.

Our firm represented Rajesh Dilip Wadhwani.

Status

Rajesh’s judicial review was dismissed by the High Court, and his appeal to the Court of Appeal was dismissed.

Industrial Court | Award 1188/2019 | 11 April 2019

Background

Azlan Bin Aliuddin, Assistant Manager of Security Services at Perusahaan Otomobil Nasional Sdn. Bhd. (the company), was alleged to have failed to investigate an incident thoroughly after learning that an employee had removed company property. He had also failed to report the incident to the Human Resource Department. He was charged with the failure and misconduct and was dismissed by the company.

Decision

The Industrial Court held that the punishment of dismissal, imposed without even considering other ways, means and avenues, was manifestly harsh and disproportionate to Azlan’s misconduct. The Court further stated that his integrity was not tainted by his negligent act in the circumstances of the case. The company had therefore failed to prove on the balance of probabilities that the dismissal was proportionate to the misconduct committed, and the dismissal was without just cause or excuse.

Our firm represented Azlan bin Aliuddin.

Industrial Court | Award 1415/2019 | 10 May 2019

Background

Siew Chee Keong was alleged to have instructed or forced his team members to channel referral fees to his brother and wife, even though neither of them was an agent of RHB Bank Berhad (the bank). He was charged with the alleged misconduct and was dismissed by the bank.

Decision

The Industrial Court stated that the bank had produced no concrete evidence in Court, other than the purported admission in Siew Chee Keong’s interview statement, to show that he was guilty of the alleged charge. In view of the lack of concrete evidence, the Court held that the dismissal was without just cause or excuse.

Our firm represented Siew Chee Keong.

Status

The bank’s judicial review was dismissed by the High Court.

Industrial Court, Kuala Lumpur | 22(26)(22)/4-398/16; Award 1509/2019 | 23 May 2019

Background

Tengku Mohd Hasmadi, the company’s Chief Operating Officer and Executive Director, returned from leave in March 2015 to a memorandum circulated to all staff appointing the Chairman’s 27-year-old son as Head of Group Support Services, removing a considerable portion of his responsibilities without consultation. He left on 1 April 2015 and claimed constructive dismissal. The company said he had resigned and relied on a revised structure of 2 April 2015 restoring two departments to him.

Issue

Whether the restructuring was a fundamental breach amounting to constructive dismissal, and if so, whether the dismissal was with just cause or excuse.

Legal principles

The employee must prove a breach going to the root of the contract. A series of acts may together breach the implied term of mutual trust and confidence.

Decision

The Court found constructive dismissal without just cause or excuse, as the company had breached the implied term of mutual trust and confidence, leaving him reasonably perceiving that he was being squeezed out. The revised structure of 2 April 2015 did not restore his position: it created two new positions alongside his, one held by the Chairman’s son and one by a former subordinate, and continued to remove his duties as Head of Support Services. He had left promptly because of the breach, and the restructuring was a colourable exercise of managerial authority tainted by unfair labour practice. Reinstatement was not ordered. The Court awarded RM818,505 as compensation in lieu of reinstatement, based on about 12 years’ service, and RM1,637,010 in backwages, the 24-month statutory maximum, totalling RM2,455,515. The sum was payable within 45 days less statutory deductions, with the company also to pay its 18% EPF contribution, and no reduction was made for post-dismissal earnings.

Our lawyers, Muhendaran Suppiah and Srividhya Ganapathy, represented the claimant.

Status

The company’s application for judicial review of this Award was dismissed by the High Court on 28 July 2020 (WA-25-385-08/2019).

Industrial Court | Interim Award 1627/2019 | 30 May 2019

Background

Ong Fung Yin pleaded constructive dismissal on the basis that the clinic had failed to pay her wages and had refused to allow her to enter the clinic to perform her duties. Her initial pleading named the proprietor, and during the proceedings she sought to join the company under which the clinic was registered. The proprietor objected to the application.

Issue

Whether the company under which the clinic was registered should be joined as a party.

Decision

The Industrial Court stated that the company had failed to extricate itself from the other respondent, so it was an appropriate situation to lift the veil of incorporation. The Court joined the company as a party to the case.

Our firm represented Ong Fung Yin.

Status

Ong Fung Yin’s claim did not succeed when the Industrial Court decided it on the merits.

Industrial Court | Award 1743/2019; [2019] 3 ILR 498 | 13 June 2019

Background

Kanaga Laksmi a/p Paramasivam and seven other claimants were retrenched by HSBC Bank Malaysia Bhd (the bank) on the basis that the outsourcing of certain aspects of their operation had resulted in the claimants being redundant.

Decision

The Industrial Court held that the bank had the managerial prerogative to reorganise its business, and that the outsourcing, which resulted in the claimants’ redundancy, was done in a bona fide manner.

Our firm represented Kanaga Laksmi a/p Paramasivam and seven other claimants.

Status

The claimants’ judicial review was dismissed by the High Court.

Industrial Court | Award 1739/2019 | 13 June 2019

Background

Bawani a/p Maruthapillai was alleged to have uttered abusive, bullying and discriminatory words towards her subordinates. Avani Sepang Goldcoast Resort (Golden Palm Tree Resort & Spa Sdn. Bhd.) (the company) held an inquiry and then dismissed her.

Decision

The Industrial Court held that Bawani’s dismissal was without just cause or excuse. In so holding, the Court said that, while the words used by Bawani against her subordinates were abusive and discriminatory and amounted to major misconduct, the burden of proof was on the company to show that she had indeed uttered those words to her subordinates, which the company failed to do.

Our firm represented Bawani a/p Maruthapillai.

Status

The company’s judicial review and its appeal to the Court of Appeal were dismissed, and the Federal Court refused it leave to appeal.

Industrial Court | Award 1784/2019 | 19 June 2019

Background

Malayan Banking Berhad (the bank) alleged that Mohammad Alwi Bin Mohd Kasim had misappropriated excess cash of RM9,480. He was charged with the alleged misconduct and was dismissed by the bank.

Decision

The Industrial Court held that the misappropriation was serious misconduct. Mohammad Alwi was in a position of utmost responsibility for the safekeeping of the cash, and his misconduct went to the core of his integrity and credibility. The Court upheld his dismissal.

Our firm represented Mohammad Alwi bin Mohd Kasim.

Industrial Court | Award 1866/2019 | 27 June 2019

Background

Norzaifizy Bin Khalid Nordin was retrenched by Murphy Sarawak Oil Co. Ltd. (the company).

Legal principles

Where a company departs from the LIFO rule, the onus is on it to justify the departure by adducing substantive and reliable evidence of the grounds or reasons for it.

Decision

The Court was of the opinion that the company’s selection criteria were neither transparent nor codified for Norzaifizy to understand and appreciate, and were unreasonable. The company had failed to discharge the onus of justifying its departure from the LIFO rule. It also showed no evidence that the other Project Engineers were more qualified than Norzaifizy to be retained, or that he could not perform the roles they were performing. The Court therefore held that the retrenchment was without just cause and excuse, and ordered the sum of RM931,291.97 to be paid to Norzaifizy through his solicitors, Muhendaran Sri, within 30 days from the date of service of the award.

Our firm represented the claimant.

Industrial Court | Award 1831/2019 | 26 June 2019

Background

Jasbir Singh a/l Piara Singh was dismissed by Antah Sri Radin Sdn. Bhd. (the company) after he was absent from work without leave or the requisite authorisation on the days concerned.

Legal principles

It could hardly be ideal for industrial harmony, in an employer and employee situation, if a workman could decide for himself when he could go on leave and for how long, or choose to absent himself from work for any period of time and for any reason whatsoever, particularly where a prior application for leave has been unequivocally refused.

Decision

The Court found that Jasbir Singh had failed to comply with the basic obligation of a workman to be present at his employer’s workplace to render the service he was contracted to do, and that he was absent without leave or the requisite authorisation from the company on the days concerned. It therefore held that it was unequivocal that he had committed employment misconduct, undeniable that he had breached a term fundamental to his employment contract, and unquestionable that the misconduct was serious enough to warrant his dismissal.

Our firm represented Jasbir Singh a/l Piara Singh.

Industrial Court | Award 1903/2019; [2019] 3 ILR 564 | 2 July 2019

Background

Assunta Hospital (the hospital) terminated the employment of Gill Satwant Singh, who was contracted to provide clinical services to the hospital, by way of retirement after he had attained and passed the minimum retirement age of 60.

Legal principles

Retirement under section 4 of the Minimum Retirement Age Act 2012 takes place in due and appropriate time under the law, irrespective of the employee’s performance.

Decision

The Court held that the hospital had lawfully terminated Gill Satwant Singh by way of retirement under section 4 of the Minimum Retirement Age Act 2012, as he had not only attained but passed the minimum retirement age of 60. It was therefore completely unnecessary for the Court to consider whether his services with the hospital were still relevant, or whether he was no longer providing the clinical services for which he was contracted, as retirement under section 4 takes place in due and appropriate time irrespective of the employee’s performance. The Court held that the hospital had proved on the balance of probabilities that it terminated Gill Satwant Singh with just cause or excuse by way of statutory retirement.

Our firm represented Gill Satwant Singh.

Status

The High Court allowed Gill Satwant Singh’s judicial review.

Industrial Court | Award 1941/2019; [2019] 2 LNS 1941 | 5 July 2019

Background

Rohizir Binti A. Wahab was the HSE Manager of EQ Petroleum Developments Malaysia Sdn. Bhd. (the company), whose business in the oil and gas industry involves offshore activities. The company dismissed her.

Decision

The Court found that Rohizir’s dismissal was without just cause or excuse. The company’s grouse against her was nothing more than that she was a stern and strict disciplinarian who placed everything on record and in writing, by email or otherwise. The Court observed that the company’s business poses serious safety risks and issues, so rules and regulations must be strictly adhered to, and that for this reason the company ought to have been grateful to have her as its HSE Manager and to have deemed her, with her strict and disciplinarian approach towards the offshore staff among others, an asset.

The Court ordered that Rohizir be reinstated to her former position as HSE Manager, and that the company pay backwages of RM1,056,000.00 to her through her solicitors, Messrs. Muhendaran Sri. The company was also ordered to pay the statutory contributions deducted from the award sum and its own share of contributions to the relevant statutory bodies, including all interest and/or dividends payable on those contributions from the date of her dismissal.

Our firm represented the claimant.

Industrial Court | Award 2037/2019 | 15 July 2019

Background

Standard Chartered Bank Malaysia Berhad (the bank) dismissed Ramesh a/l Ayappan for poor performance. Ramesh claimed that the bank had victimised him for his union activities.

Issue

Whether Ramesh’s dismissal for poor performance was with just cause, or whether the bank had victimised him for his union activities.

Decision

The Court found ample evidence that Ramesh had failed to perform to the satisfaction of his employer over a period of six years, despite the bank’s efforts to guide, train and assist him to improve. It found no real connection between his termination for poor performance and his union activities to substantiate his claim of victimisation. The Court therefore held that his dismissal for poor performance was with just cause.

Our firm represented Ramesh a/l Ayappan.

Industrial Court | Award 2308/2019 | 20 August 2019

Background

Sredharan a/l Ramakrishna Nair was dismissed by the company on the ground of redundancy.

Decision

The Court found that the redundancy situation alleged by the company against Sredharan had not been made out, so his dismissal was without just cause and excuse.

Our firm represented Sredharan a/l Ramakrishna Nair.

Industrial Court | Award 2382/2019 | 29 August 2019

Background

Abd Ghani Bin Pakir Muhamad was employed by UKM Holdings Sdn. Bhd. (the company) on a fixed-term contract that was extended. He signed and accepted the terms and conditions of the extension contract, and his employment ended when the extension contract expired.

Issue

Whether Abd Ghani was dismissed, or whether his fixed-term contract came to an end by effluxion of time.

Decision

The Court held that there was no dismissal, as Abd Ghani’s extended fixed-term contract came to an end by effluxion of time, and its expiry spelled the end of his employment with the company. The Court was of the opinion that the company genuinely intended the employment to be for a fixed term.

Our firm represented Abd Ghani bin Pakir Muhamad.

Industrial Court | Award 2526/2019 | 18 September 2019

Background

Suburamaniam a/l Rokonathan held a senior management position as Head Division, Residential & Infrastructure of KLCC Projeks Sdn. Bhd. (the company). He faced two charges of misconduct and the company terminated his employment.

Decision

The Court held that the company had proved on a balance of probabilities that Suburamaniam was guilty of the two charges of misconduct. Given his senior management position, he should have exercised a high degree of responsibility and integrity to reciprocate the trust and confidence the employer had placed in him. The punishment of dismissal was therefore commensurate with the misconduct, and his termination was with just cause or excuse. His claim was dismissed.

Our firm represented Suburamaniam a/l Rokonathan.

Industrial Court | Award 2751/2019 | 17 October 2019

Background

Nor Aini Binti Sabil was employed by Murphy Sarawak Oil Co. Ltd (the company) on a fixed-term contract which the company renewed automatically on each occasion. The company dismissed her by way of retrenchment.

Decision

The Court held that the company’s dismissal of Nor Aini by way of retrenchment was without just cause and excuse. It found no basis for selecting her for retrenchment, as other employees junior to her in years of service were retained to perform the duties and responsibilities she had performed before her retrenchment. The Court further held that the automatic renewal of her fixed-term contract on each occasion, without any evaluation of whether her roles were still required, showed that her employment was permanent in nature. The Court ordered the company to pay RM541,068.29 to Nor Aini through her solicitors, Messrs Muhendaran Sri.

Our firm represented the claimant.

Court of Appeal, Putrajaya | W-04-54-2004 and W-04-55-2004; [2006] 4 CLJ 901 | 6 March 2006

Background

An in-house union that had represented executive and managerial grades in Bank Bumiputra Malaysia Berhad obtained registration from the Director General of Trade Unions to represent the same category in the merged Bank Bumiputra Commerce Berhad. The Association of Bank Officers, Peninsular Malaysia (ABOM) and Kesatuan Kakitangan Eksekutif Bank of Commerce Semenanjung Malaysia (BOCESU) obtained judicial review, the High Court quashed the registration, and the union appealed against each.

Issue

Whether the Director General’s decision to register the union was flawed because he failed to take the relevant statutory considerations into account.

Legal principles

Section 12(3) of the Trade Unions Act 1959 as then in force required the Director General to refuse registration where the union was likely to be used for purposes inconsistent with its objects and rules, and section 12(2) required him to consider whether an existing union already represented the workmen. A public decision-maker who fails to take relevant considerations into account is liable to have the decision quashed on judicial review.

Decision

The Court of Appeal dismissed both appeals with costs and affirmed the High Court’s orders, finding no appealable error. It held that registration would further a purpose inconsistent with the union’s objects and rules, because the union sought to represent persons outside the scope of its authorised representation, and that the Director General had failed to take this and the considerations in section 12(2) into account.

Our lawyers, S Muhendaran and GS Kavitha, represented BOCESU, the respondent in appeal W-04-55-2004.

High Court, Kuala Lumpur | WA-25-55-03/2016; [2017] 1 LNS 877 | 6 July 2017

Background

Tengku Mohd Hasmadi, the company’s Chief Operating Officer and Executive Director, claimed constructive dismissal after a memorandum circulated to all staff appointed the Chairman’s son as Head of Group Support Services and his Heads of Division were told to report to the Chairman. The Minister referred his complaint to the Industrial Court. Konsortium Transnasional sought judicial review of the referral, saying it had remedied the breach and that he had rejected an offer of reinstatement without loss of benefits.

Issue

Whether the Minister was entitled to refer the complaint to the Industrial Court despite the company’s case that the breach had been remedied.

Legal principles

Where a complaint raises serious questions of fact and law requiring adjudication, the Minister should refer it to the Industrial Court. Constructive dismissal involves the calling of witnesses and cannot fairly be decided on affidavit evidence at the Minister’s administrative level.

Decision

The High Court rejected the employer’s challenge, leaving the referral in place, as whether the breach had been remedied was a disputed question for the Industrial Court. The company had made no announcement withdrawing the Chairman’s instruction on reporting lines, and its revised reporting chart differed materially from the earlier structure, with new positions alongside his. There was no evidence that the company’s offer would have restored him to his previous position without loss of benefits.

Our lawyers, Muhendaran Suppiah and Srividhya Ganapathy, represented the second respondent, Tengku Mohd Hasmadi.

Status

The company’s further challenge to the referral ended when the Federal Court refused leave to appeal. The Industrial Court then heard the complaint and found in Tengku Mohd Hasmadi’s favour (Award 1509/2019).