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2010 MarsdenLR 3718
HIGH COURT KUALA LUMPUR
BAX GLOBAL (MALAYSIA) SDN BHD – Appellant
Versus
SUKHDEV SINGH PRITAM SINGH & ANOR – Respondent
[Judicial Review No: R3-25-162-2009]
The court emphasized that an Industrial Court's jurisdictional errors, particularly regarding redundancy determinations, invalidate its awards, necessitating judicial review.
Headnote:(A) Industrial Relations Act 1967 - Quashing of Industrial Court award - Jurisdictional error was established due to the Industrial Court failing to rule on redundancy and considering only constructive dismissal - Back wages awarded were flawed due to miscalculation of service duration - The Court emphasized the necessity of evaluating evidence for redundancy claims. (Paras 4, 19, 28, 30)
(B) Judicial Review - The Court can only intervene in the findings of the Industrial Court when those findings are unreasonable and culminate in jurisdictional error. (Paras 6, 7, 27)
Facts of the case:
The Applicant sought certiorari to quash an award that found the 1st respondent constructively dismissed with RM252,000 in compensation, despite the Applicant asserting redundancy with a continued role offered. The 1st respondent did not accept the new position and lodged a complaint instead.
Findings of Court:
The learned Chairman failed to provide proper findings on redundancy, prompting the court to identify significant errors affecting jurisdiction.
Issues: Determining whether the dismissal constituted constructive dismissal or redundancy.
Ratio Decidendi: The Court asserted that the Industrial Court's failure to evaluate evidence concerning redundancy led to erroneous conclusions, allowing for the quashing of the award.
Result: Application allowed.
| Table of Content |
|---|
| 1. applicant seeks order to quash industrial court award. (Para 1 , 2 , 3 , 4) |
| 2. applicant argues industrial court erred in ruling. (Para 5 , 9 , 11) |
| 3. court outlines function and standards for judicial review. (Para 6 , 8 , 12 , 18) |
| 4. evaluation of redundancy vs. constructive dismissal. (Para 20 , 21 , 22 , 26 , 27) |
| 5. court identifies jurisdictional errors in award's compensation. (Para 28 , 29) |
[1] This is an application by the Applicant for an order for Certiorari to quash the Award of the Industrial Court dated 24.3.09 wherein the learned Chairman held that the 1st Respondent was constructively dismissed by the Applicant and awarded a total sum of RM252,000 as back wages and compensation in lieu of reinstatement.
Background Facts
[2] The 1st respondent was employed by the Applicant (Company) as a Senior Manager, Security & Risk Management vide a Letter of Offer dated 16.8.99. He was responsible for all aspects of security and risk management throughout Malaysia. He was later promoted to the position of General Manager of Facilities, Security & Risk Management effective 1.7.01. Due to reorganization exercise in the company, the position of the 1st respondent's became redundant. The company issued a letter dated 3.6.02, signed by the General Manager, Human Resource on behalf of the Managing Director of the company, informing him that his position will be redundant and his services will no longer be required with effect from 3.6.02.
[3] He was offered an alternative position as a Security of Facilities Manager- Kuala Lumpur with the same salary and benefit he currently enjoyed. He was requested to report for duty in his new position on 10.6.02. The 1st respondent orally indicated that he was not interested in the position.
[4] When the 1st respondent did not confirm the acceptance of the new position on 10.6.02, the company wrote another letter dated 3.7.02 to him stating that his last day of service will be 10.7.02 and regard that letter as a formal notice of termination. Not only the 1st respondent did not respond at all to the company's two letters, but he also did not report for duty as required by the company. Instead he walked out of the company and lodged a complaint with the Industrial Relations Department, claiming constructive dismissal.
Grounds Of Application
[5] The grounds on which the relief was sought by the Applicant's Company are contained in a statement filed pursuant to O 53 r 3 (2) of the High Rules 1980. Briefly, the complaint of the company was that the Industrial Court had erred in law and jurisdiction as follows:-
1. In not making a ruling on the issue of redundancy.
2. In making a findings that no reasonable person or body in a similar circumstance would have made.
3. In awarding compensation which was contrary to established principles of law.
4. The learned Chairman of the Industrial Court who handed down the award was not the Chairman who hear the case.
The Issue
[6] The issue to be determined by this Court is whether the 1st respondent was constructively dismissed or is it a case of redundancy.
Function Of Review Court
[7] It is an established law that a Court in exercising its judicial review can only interfere with the findings of the Industrial Court if it can be shown to the satisfaction of the Court that the findings were unreasonable in the sense that no reasonable person or body of person could have reached them - Quah Swee Khoon v. Sime Darby Bhd , ; Wong Yuen Hock v. Syarikat Hong Kong Assurance Sdn Bhd ; [1995] 3 CLJ 344.
Should The Case Be Heard Denovo?
[8] Before I proceeded to examine the merits in this application, I must first address the issue of the award being handed down by a chairperson who did not hear the case. The chairperson who sat throughout the trial was Yeoh Wee Siam (as she then was). But the award was handed down by Dato' Mary Shakila Azariah.
[9] Mr Jeevaratnam, learned counsel for the Applicant submit that the applicant was prejudiced as the
