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2021 MarsdenLR 792
HIGH COURT MALAYA JOHOR BAHRU
PRABAHARAN MALAYALAM – Appellant
Versus
HIEWA AUTO GALLERY (LARKIN) SDN BHD & ANOR – Respondent
[Judicial Review Application No: JA-25-18-04/2020]
The Court upheld that an employee abandoning their job before official termination cannot claim reinstatement or compensation under the Industrial Relations Act.
Headnote:(A) Industrial Relations Act 1967 – Sections 20(3) and 30(6) – Judicial Review – Application for Certiorari and Mandamus to quash the Industrial Court's Award regarding dismissal of an employee who abandoned his employment prior to termination – The Court finds that the Industrial Court had jurisdiction to determine if the Applicant was a workman and the dismissal was without just cause or excuse (Paras 9, 10, 11, 12, 15, 19).
(B) Jurisdiction of the Industrial Court – The court establishes that abandonment of employment nullifies the entitlement for reinstatement or compensation as per provisions of the Act (Paras 15, 17, 19).
Facts of the case: An employee was dismissed while having commenced employment with another company prior to the dismissal taking effect on 14 June 2018. His claim to the Industrial Court was based on the assertion that he was still an employee.
Findings of Court: The Court held that the Applicant had abandoned his employment with the First Respondent prior to the dismissal and upheld the Industrial Court's findings of fact (Paras 15, 18).
Issues: The main issue was whether the Applicant was a workman under the IRA and if the dismissal was made without just cause (Paras 9, 19).
Ratio Decidendi: The Court outlined that a claimant must be a workman to avail himself of the provisions of the IRA; evidence showed the Applicant had abandoned his job, thus negating the grounds for reinstatement or compensation (Paras 15, 20).
Result: Application for Judicial Review dismissed.
JUDGMENT
Introduction
[1] The Applicant filed an application for Judicial Review, for an Order of Certiorari and Mandamus, to quash the award of the Industrial Court Chairman, (Award No 360 of 2020) dated 10 February 2020 ("the said Award").
Background Facts
[2] The Applicant was an employee of the First Respondent (R1). On 20 March 2018, he was suspended with full salary and benefits pending an investigation into allegations of misconduct by him.
Following the investigations, the Applicant was dismissed from his employment with R1 vide a letter dated 6 June 2018 ("the termination letter"). The termination took effect on 14 June 2018.
[3] Based on the Applicant's representation that he was still an employee of R1 as at 14 June 2018, his claim was referred to the Industrial Court by the Minister, pursuant to s 20(3) of the Industrial Relations Act (" IRA ")1967.
[4] Meanwhile, unbeknown to R1, the Applicant had commenced employment with another company, TC Trucks After Sales Sdn Bhd ("TC Trucks"), starting 16 May 2018. It should be noted that the Applicant had commenced his employment with TC Trucks about one month before R1's termination letter took effect, which was on 14 June 2018. In fact, the Applicant started his new job even before the letter of termination, dated 6 June 2018, was issued.
[5] The fact of the Applicant's new employment was discovered by R1's Human Resources Manager ("HR Manager") while going through the Pertubuhan Keselamatan Sosial ("Socso") records of the Applicant. The HR Manager discovered that TC Trucks had been paying monthly Socso contributions for the Applicant from 16 May 2018. TC Trucks also revealed that it had been paying Kumpulan Wang Simpanan Pekerja ("EPF") contributions for the Applicant, who was their full-time employee, from 16 May 2018 ie before the Applicant was terminated by R1.
[6] One of the witnesses subpoenaed by R1, Mr Azman Lan, produced the application form submitted by the Applicant in his application for a job with TC Trucks. In the form, which was in the Applicant's own handwriting, under the space "Reasons for leaving previous job", the Applicant wrote, "for better offer and wanted to be back in KL area".
[7] When confronted with all the evidence, at the Industrial Court, the Applicant's reply was that he was a "freelance worker" with TC Trucks.
[8] Consequent upon discovering that the Applicant had commenced employment with another company even before he was terminated, R1 sought to amend its prayers in its Statement of Reply dated 11 December 2018 by adding the following paragraph:
"Alternatively, the Company avers that the Claimant has abandoned his employment as Head of B&P Department in the Company on 16 May 2018 when he commenced his employment with his new employer TC Trucks After Sales Sdn Bhd. , which paid contributions for the Claimant's EPF and Socso for the month of May and June 2018. Therefore, the Claimant had abandoned his employment with the Company before the Company's letter of dismissal to the Claimant was issued on 6 June 2018, which took affect from 14 June 2018. Thus, the Claimant is not entitled, in any event, to reinstatement or compensation in liew of reinstatement."
This application for amendment was allowed by the Industrial Court Chairman.
[9] Upon the amendment of R1's Statement of Reply, before the Court proceeded to decide whether the Applicant had been dismissed without just cause or excuse, there arose an issue of law ie whether the Applicant was a workman as defined in the IRA so as to avail himself of the provisions of the Act.
[10] Several cases have decided on the above issue and in Kathiravelu Ganesan & Anor v. Kojasa Holdings Bhd, at page 699, the Supreme Court held as follows:
"the Industrial Court must be permitted to decide the dispute to conclusion and in the process, to deal with the jurisdictional question e.g. whether the particular claimant is or is not a workman or whether the matter involves the exercise of extra-te
