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2011 MarsdenLR 1629
HIGH COURT MALAYA KUALA LUMPUR
MERRINGTON HOLDINGS SDN BHD & ANOR – Appellant
Versus
MAHKAMAH PERUSAHAAN MALAYSIA & ANOR – Respondent
[Permohonan Bagi Semakan Kehakiman No: R2(4)-25-386-2009]
The court confirmed that joinder of parties in industrial non-compliance proceedings is permissible for effective enforcement of awards, emphasizing the necessity of considering the interests of all relevant parties.
Headnote:(A) Industrial Relations Act 1967 - Section 56(1) - Judicial review - The Applicants sought certiorari to quash an Industrial Court Award joining the Second Applicant to non-compliance proceedings - The Court upheld the Award, affirming that parties can be joined in non-compliance proceedings - The Second Applicant was deemed indispensable as he was involved in the dismissal of the Second Respondent, and his joinder was necessary for effective adjudication. (Paras 1, 9, 10, 12, 15)
Facts of the case:
The Second Respondent filed a claim for unfair dismissal, and subsequently sought to have the Second Applicant joined in non-compliance proceedings relating to the earlier award. The Industrial Court allowed the joining of the Second Applicant as a necessary party. (Paras 3-5)
Findings of Court:
The First Respondent acted within its jurisdiction and correctly applied industrial law principles; the joinder of the Second Applicant was justified to enforce the awarded rights of the Second Respondent effectively. (Paras 9, 12)
Issues: The primary issues included whether the Second Applicant should be joined to the proceedings and whether the First Respondent erred in law in allowing this joinder. (Para 8)
Ratio Decidendi: The Court concluded that the Industrial Court appropriately exercised its discretion to join the Second Applicant, as it was fundamental for enforcing the rights awarded to the Second Respondent and to ensure that justice was upheld. (Paras 11, 15)
Result: Application dismissed with costs.
| Table of Content |
|---|
| 1. conclusion on the application for judicial review (Para 2) |
| 2. facts surrounding the unfair dismissal claim (Para 3 , 4 , 5 , 6 , 7) |
| 3. applicants' arguments against the award (Para 8) |
| 4. court's analysis on joinder and jurisdiction (Para 9 , 10 , 11 , 12 , 13 , 14 , 15) |
Application
[1] The Applicants apply for judicial review for an order of certiorari to quash the Industrial Court Award No 1418 of 2009, namely, to quash the First Respondent's award to join the Second Applicant as a party to the non-compliance proceedings before the First Respondent ("the Impugned Award").
[2] After hearing the parties, I dismissed the application with costs.
Brief Facts
[3] The Second Respondent filed a claim for unfair dismissal against the First Applicant on 25 December 2005. An award was handed down in favour of the Second Respondent videAward No 1841 of 2008. The Applicants nor any of representatives were present in the Industrial Court.
[4] A complaint was lodged by the Second Respondent on 8 May 2009 under s 56(1) of the Industrial Relations Act 1967 ("the act") that the First Applicant did not comply with the Award.
[5] Subsequently, the second Respondent filed an application for an order that the Second Applicant be joined as a party to the non-compliance proceedings before the First Respondent.
[6] The learned Chairman, with the concurrence of its panel, allowed the application to joint the Second Applicant as party vide the Impugned Award.
[7] The First Respondent also directed compliance against the Second Applicant on 12 December 2009 and 14 days was given to pay the amount RM83,2000.00. The 14 days expires on the 13 December 2009.
Submission by the Applicants
[8] The nub of the Applicant's submission may be summarized as follows:
(a) The Second Applicant did not have the opportunity to contradict the statements made by the witnesses for the Second Respondent during the trial. This had effectively deprived him the opportunity to be heard (see B Surinder Singh Kanda v. The Government of the Federation of Malaya ; )
(b) The First Respondent in reaching its decision had relied on irrelevant facts or failed to take into account relevant facts thereby reaching a decision which could not have been reached by any other tribunal. According to the Applicants, documents that were signed by the Second Applicant was signed merely in his capacity as managing Director for the First Applicant and was never made in his personal capacity. Further, the shareholding and the composition of its board of directors of the First Applicant would be sufficient to show that the Second Applicant is not the directing mind and will of the company.
(c) The learned Chairman and members of the panel failed to appreciates the strictness and limited application of case of Hochtief Gammon v. Industrial Tribunal v. Bhubaneshwar Orissa And Other AIR [1064]1746.
Court's Findings
[9] With respect, the Court disagrees with the submission of the Applicants. The First Respondent did not commit any errors of law and/or fact and/or acted in excess of or without any jurisdiction. The First Respondent had applied correct principles of industrial law and took relevant matters into consideration in arriving at the Impugned Award.
[10] It is settled law that parties can be joined at the non compliance proceedings before the First Respondent. In Teong Kok Kong v. Yoahan Marketing (M) Sdn Bhd & Ors, , the High Court had this to say at p 555:
"... I adopt the principle in Marahaei Sangulullai & Anor v. Syarikat JG Containers (M) Sdn Bhd & Anor, , where the Court of Appeal, in defining the words "In any proceedings before the Court", held that it includes proceedings under s 56 of the Act. In the said case, Gopal Sri Ram, JCA whilst referring to the construction of s 27(1) held,-"The opening words of the section are very clear. And they are very wide indeed. They read "In any proceedings before the Court". These words must be taken to mean what they say. Any pr
