Gopal Sri Ram JCA:

Having allowed this appeal and made the necessary consequential orders, we now give reasons for our decision.

Facts And Background

The appellant (claimant before the Industrial Court), is a citizen of Sri Lanka. He was employed by the respondent, a Malaysian company in Sabah. His employment was conditional upon his work permit being periodically renewed. He worked satisfactorily in Sabah for four years. His work permit expired on 30 April 1988 and further renewal could not be obtained. But the respondent did not terminate his services. Instead, the respondent, with effect from 1 May 1988, seconded him to Singapore where he continued to give corporate advice to the respondent's related companies for the remaining period of his existing contract.

On 11 November 1989 the respondent wrote to the appellant requesting him to resign because he had allegedly performed unsatisfactory work. The appellant, considering himself to have been wrongfully dismissed, complained to the Director-General of Industrial Relations who, having unsuccessfully attempted a reconciliation, referred the dispute to the Minister who then referred it to the Industrial Court under s. 20 of the Industrial Relations Act 1967 ('the Act') .

The respondent did not challenge this reference by the Minister. But before the Industrial Court, it took a preliminary objection as to the jurisdiction of that Court to hear and determine the dispute. The Industrial Court, however, overruled the objection and held that it had jurisdiction to entertain and to adjudicate upon the dispute.

The respondent then applied to the High Court to prohibit the Industrial Court from adjudicating upon the dispute on the ground that it was not seised of jurisdiction. It was argued that the appellant, at the date of the alleged dismissal, was not only a foreigner working in Singapore but that he was also paying tax in the Republic and contributing to the Central Provident Fund of that country. In these circumstances the Industrial Court could not adjudicate upon it because that Court lacked extra-territorial jurisdiction. These arguments found favour with the learned Judge who heard the application. He accordingly issued prohibition against the Industrial Court. Against this decision, the appellant appealed to this Court.

The Issues

The arguments addressed to us raised two issues. Both relate to the question of jurisdiction. The first issue is one that was canvassed at all levels in this litigation. It is whether, having regard to the facts of this case, the Industrial Court had jurisdiction to adjudicate upon the dispute referred to it by the Minister.

The second issue, is closely related to the first. It was raised before the High Court. It relates to the way in which challenges are to be taken to the jurisdiction of the Industrial Court. But it is germane to the appeal, concerns judicial policy and is of general importance. We therefore think it desirable to express our views upon it. It may be conveniently put in the form of a question. Was it open to the respondent to challenge the jurisdiction of the Industrial Court without having attacked the Minister's act of referring the dispute to that Court?

We will address each of these issues in turn.

The First Issue: Extra-Territoriality

The respondent's argument in support of its case may be put in this way. The Industrial Court is a creature of statute. It therefore only has such jurisdiction as is conferred upon it, either expressly or by necessary implication, by the statute creating it, namely, the Act. The Act does not confer extra-territorial jurisdiction upon the Industrial Court. Accordingly, that Court has no extraterritorial jurisdiction. The judgment of Mohamed Dzaiddin J (as he then was) in Cik Aniza Yaacob & Ors. v. Mostek Malaysia Sdn. Bhd. & Ors. [1988] 1 MLJ 451 was cited in support of these propositions. Mr. Lobo, who appeared for the appellant, did not seek to question the correctness of th