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2023 MarsdenLR 22
INDUSTRIAL COURT KUALA LUMPUR
AUDRA LIM SUET MONG – Appellant
Versus
EVERGREEN WG SDN BHD & ORS – Respondent
Award No: 2311 Of 2023 [Case No: 15(11)(1)/1-630/20]
The Industrial Court confirmed that non-compliance with an award is enforceable, and the knowledge of the award by the parties is crucial for liability.
Headnote:(A) Industrial Relations Act 1967 - Section 56(1) - Non-compliance with Industrial Court award - The Complainant alleged that the 1st Respondent failed to pay awarded back wages of RM155,400.00 within the stipulated 30 days - The Court confirmed that the terms of the Final Award were not complied with and that the Respondents had full knowledge of the Main Suit and the Final Award. (Paras 22, 23, 25, 59, 78)
(B) Enforcement of Awards - The Industrial Court's role in non-compliance cases is to determine if the terms of the award have been complied with, without re-adjudicating the merits of the original case. (Paras 18, 56)
Facts of the case:
The Complainant was terminated from employment on 9 September 2015 and awarded back wages in the Final Award dated 22 February 2018, which were not paid by the 1st Respondent, leading to the current non-compliance complaint. (Paras 5, 8, 10)
Findings of Court:
The Court found that the 1st Respondent and its directors were aware of the Final Award and failed to comply with its terms, leading to joint and several liability for the payment of the awarded sum. (Paras 78, 79)
Issues: The main issue was whether the Respondents complied with the terms of the Final Award and if they had any valid defense against the non-compliance claim. (Paras 22, 25)
Ratio Decidendi: The Court held that the non-compliance of the Final Award was clear, and the Respondents' claims of ignorance and mismanagement did not absolve them of liability. The enforcement function of the Court does not allow revisiting the merits of the original case. (Paras 22, 25, 56)
Result: The Court ordered the Respondents to pay the Complainant RM155,400.00 in compliance with the Final Award.
| Table of Content |
|---|
| 1. complaint of non-compliance with final award (Para 1 , 2 , 3 , 4) |
| 2. background on employment and dismissal (Para 5 , 6 , 7 , 8 , 9) |
| 3. complainant's grievance on non-compliance (Para 10 , 11 , 12 , 13 , 14) |
| 4. r4's defense against liability (Para 15 , 16 , 17) |
| 5. role of industrial court in non-compliance (Para 18 , 19 , 20 , 21) |
| 6. failure to comply with final award established (Para 22 , 23 , 24 , 25) |
| 7. rejection of r1's arguments on compliance (Para 26 , 27 , 28 , 29) |
| 8. knowledge of main suit and final award (Para 30 , 31 , 32 , 33) |
| 9. allegations of complainant's deception dismissed (Para 34 , 35 , 36 , 37) |
| 10. post-dismissal employment history considered (Para 38 , 39 , 40 , 41) |
| 11. complainant's earnings not affecting back wages (Para 42 , 43 , 44 , 45) |
| 12. demand for payment not required for compliance (Para 46 , 47 , 48) |
| 13. r1's failure to comply not excused (Para 49 , 50 , 51) |
| 14. merits of the claim not to be revisited (Para 52 , 53 , 54) |
| 15. no special circumstances to vary award (Para 55 , 56) |
| 16. r2's liability established (Para 57 , 58 , 59) |
| 17. r3's responsibilities as director (Para 60 , 61 , 62) |
| 18. r4's involvement and subsequent liability (Para 63 , 64 , 65) |
| 19. joint and several liability of r2 and r3 (Para 66 , 67 , 68) |
| 20. court orders payment of final award (Para 69 , 70 , 71 , 72 , 73 , 74 , 75) |
[1] This is a complaint of non-compliance filed in Form S pursuant to s 56(1) Industrial Relations Act 1967 ("the IRA 1967") and r 24A(1) of the Industrial Court Rules 1967 in respect of Award No 400 of 2018 [[2018] MELRU 400] dated 22 February 2018 ("the Final Award") in the dismissal case no 11/4-549/16 ("the Main Suit").
[2] The Complainant lodged a complaint that the provisions of the Final Award have not been complied with by the 1st Respondent, Evergreen WG Sdn Bhd ("R1"), in particular paras 29 and 30 which read as follows:
"[29] After considering the above factors, the Court orders that the Claimant be paid back wages from the date of dismissal to the date of the hearing (but limited to twenty-four (24) months). On the facts of this case, there is no evidence that he was in gainful employment after his dismissal. Hence, there is no scaling down for the post dismissal earnings. Hence, the relief due to the Claimant is:
(a) Backwages from the date of dismissal (9 September 2015) to the last hearing date (10 October 2017):
RM12,950.00 x 12 months = RM155,400.00
(b) There is no compensation in lieu of reinstatement of one month's pay for each year of completed service as the Claimant has not completed the year of service with the Company.
[30] The amount, after deducting the necessary statutory deductions if any, is to be paid by the Company to the Claimant through MTUC within 30 days from the date of this award."
[3] Upon the Complainant's application and pursuant to an Interim Award No 1043 of 2021 dated 18 May 2021, the learned former President of the Industrial Court of Malaysia, Yang Arif Dato' Rasidah Binti Haji Chik has granted an order to join one Chong Joon Teck ("R2") and Chong Yon Koi ("R3") who were the directors and shareholders of R1 at the material time as corespondents in this matter.
[4] Thereafter, R2 filed an application to further join one, Chow Lek Keen ("R4") who was the former shareholder and director of the R1 as a corespondent in this matter and the Court via Interim Award No 769 of 2022 dated 26 April 2022 has allowed R2's application to join R4 as a co-respondent.
B. Brief Facts And Background
[5] The Complainant commenced employment with R1 on 3 August 2015 as a General Manager. Her stay in R1 company was short-lived. The Complainant was eventually terminated by R1 on 9 September 2015, after about a month later.
[6] The Complainant made a representation to the Director General of Industrial Relation under s 20 of the IRA and the matter was accordingly referred to the Industrial Court for adjudication ie the Main Suit.
[7] In the meantime, pursuant to an agreement between R2 and R4 dated 3
