Back
2020 MarsdenLR 3135
HIGH COURT MALAYA JOHOR BAHRU
PELABUHAN TANJUNG PELEPAS SDN BHD – Appellant
Versus
INDUSTRIAL COURT MALAYSIA & ANOR – Respondent
[Civil Suit No: JA-25-27-04/2019]
An employee found not guilty in a Domestic Inquiry cannot be dismissed without just cause, emphasizing adherence to procedural fairness under the Employment Act 1955.
Headnote:(A) Employment Act 1955 – Section 14 – Judicial Review Application to quash the Award No 207 of 2019 – Dismissal of employee by applicant deemed without just cause post Domestic Inquiry findings of not guilty – Principles of natural justice and procedural fairness highlighted – Evidentiary support lacking for termination claims. (Paras 1, 54, 94).
(B) The court reaffirmed the necessity of a Domestic Inquiry and the duty of management to adhere to findings, ruling that management cannot dismiss an employee found not guilty without valid grounds. (Paras 30, 60, 64).
Facts of the case: The 2nd Respondent was dismissed after Domestic Inquiry found him not guilty of misconduct despite the application arguing otherwise. The inquiry process and outcomes were heavily scrutinized for procedural fairness. (Paras 31, 35).
Findings of Court: The court resolved that true due inquiry necessitates adherence to its results, supporting the principle that an employee’s dismissal must align with findings made during a Domestic Inquiry. (Paras 54, 64).
Issues: Key issues included whether an employee can be dismissed after being found not guilty in a Domestic Inquiry and the applicability of the Audi Partem Rule. (Paras 6.1, 6.2).
Ratio Decidendi: The need for evidence in dismissal consideration was emphasized while ruling on management's authority to override Domestic Inquiry defenses when justified. (Paras 60, 64).
Result: The court dismissed the application with costs, ruling the dismissal was without just cause and contrary to statutory provisions. (Paras 95).
1. Introduction
[1] This is an application for Judicial Review (Encl 1) pursuant to O 53 Rules of to quash the Award No 207 of 2019 [[2019] MELRU 207] dated 14 January 2019 handed down by the 1st Respondent. The 1st Respondent then award the 2nd Respondent with RM121, 261-60.
[2] The basis of the award was that the dismissal of the 2nd Respondent by the Applicant was without just cause or excuse.
2. The Cause Papers
[3] The cause papers in this application are as follows:
(a) Ex-Parte Leave for Judicial Review Application dated 4th April 2019 ("Leave Application");
(b) The Applicant's Affidavit-in-Support affirmed by Jaizal Kamar bin Jalaludin on 4 April 2019 ("Applicant's Affidavit-in-Support");
(c) Second Respondent's Affidavit-in-Reply affirmed by Norisam bin Yunos on 27 August 2019 ("Second Respondent's Affidavit-in-Reply"); and
(d) The Applicant's Affidavit-in-Reply affirmed by Jaizal Kamar bin Jalaludin on 10 September 2018 ("Applicant's Affidavit-in-Reply").
3. The Law In Respect Of Judicial Review
[4] Judicial Review is provided for under O 53 Rules of 2012.
[5] Historically, the basis for judicial review of acts and decisions of public authorities has been the doctrine of ultra vires of excess of jurisdiction. The role of the Court is to keep bodies within their allocated authority of jurisdiction. In judicial review, the Court is concerned with the decision-making process and not with the merits of the decision. Over the years, the scope of Judicial Review has expended to include "Patent error of law", "natural justice", and the rules of locus have liberalized (paraphrased from MP Jain, Administrative Law of Malaysia and Singapore 3rd Edition pp 625-626).
Scope Of The Order
[6] This order govern ALL application seeking the prerogative writs of mandamus, prohibition, quo warranto, certiorari or 'any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them, or for any purpose', but is subject to the provisions of Chapter VII of Part 2 of the Specified Relief Act 1950 (on the enforcement of public duties). [Order 53 rule 1(1) and 1(2)]
Mode Of Application
[7] All application for judicial review (other than for an order of habeas corpus) shall be in Form 109 [O 53 r 2(1)]
[8] An application may be made for any of the reliefs, including declaration, either jointly or in the alternative provided the reliefs are connected with the same subject matter. [O 53 r 2(2)]
[9] A Court is not confined to the relief claimed but may make any order including an order of injunction or monetary compensation.
[10] An injunction against the Government must be in accordance with in accordance with s 29 of the Government Proceeding Act 1948 and s 54 of the Specific Relief Act 1950. [O 53 r 2(3)]
Locus Standi
[11] Any person who is adversely affected by the decision of any public authority shall be entitled to make the application. [O 53 r 2(4)]
[12] Leave is required to make an application for Judicial Review. An application for judicial review shall not be made without leave of Court first being obtained. [O 53 r 3(1)]
Application For Leave
[13] Application for leave is make ex parte to a Judge in Chambers, supported by a statement 'setting out the name and description of the applicant, the relief sought and the grounds on which it is sought', and by affidavits verifying the facts relied on. [O 53 r 3(2)]
[14] Notice of the application for leave must be given to the Attorney General's Chambers not later than three days before the hearing date together with copies of the statement and affidavits. [O 53 r 3(3)]
[15] In granting leave, the Judge may impose terms as to costs and to the giving of security. [O 53 r 3(4)]
[16] No grant of leave shall operate as a stay of proceedings, unless the Judge otherwise so directs. [O 53 r 3(5)]
Time For Application
[17] An application for judicial review shall be made 'promptly' and in any event 'within three months' from the date when the grounds of appli
