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2023 MarsdenLR 1418
HIGH COURT MALAYA KUALA LUMPUR
LIMKOKWING UNIVERSITY OF CREATIVE TECHNOLOGY INTERNATIONAL SDN BHD – Appellant
Versus
MAHKAMAH PERUSAHAAN MALAYSIA &.... – Respondent
[Judicial Review Application No: WA-25-196-04/2022]
The Industrial Court has jurisdiction to substitute parties under the Industrial Relations Act when there is a reasonable factual or legal nexus, ensuring effective adjudication.
Headnote:(A) Industrial Relations Act 1967 - Sections 20 and 29 - Judicial review application to quash an Industrial Court award allowing substitution of employer's name - Court finds that the Industrial Court has jurisdiction to substitute parties under s 29 - The employees' claim for dismissal without just cause remains pending - The naming of the applicant is necessary for effective adjudication. (Paras 1-7)
(B) Illegality - The applicant contends that the Industrial Court exceeded its jurisdiction by substituting a party not intended in the Minister's reference - Court disagrees, asserting the Industrial Court's powers under s 29 allow for such substitution once jurisdiction is established. (Paras 8-14)
(C) Irrationality - The applicant argues irrelevant factors were considered in the substitution decision - Court finds a reasonable nexus exists between the entities involved, thus affirming the substitution as just and equitable. (Paras 19-25)
Findings of Court:
The Industrial Court acted within its powers and found a legal nexus justifying the substitution of parties.
Issues: Whether the Industrial Court had the authority to substitute a party in the reference made by the Minister and whether the substitution was rational.
Ratio Decidendi: The court ruled that the Industrial Court has the authority to substitute parties under s 29 of the IRA as long as there is a reasonable factual or legal nexus.
Result: Application for judicial review dismissed.
| Table of Content |
|---|
| 1. judicial review application dismissed. (Para 1 , 2 , 4 , 5 , 6 , 7) |
| 2. challenge of substitution based on jurisdiction. (Para 8 , 9 , 10) |
| 3. industrial court's powers under ira. (Para 11 , 12 , 13 , 14 , 15 , 16) |
| 4. test for joinder or substitution of parties. (Para 19 , 20 , 21 , 22 , 23 , 24) |
Introduction
[1] On 10 January 2023, I dismissed an application for judicial review to move into this Court, Award No 86 Year 2022 dated 10 January 2022 handed down by the Industrial Court ("the impugned award") for the purpose of the same being quashed by an order of certiorari. The impugned award allowed an application by the second to eleventh respondents ("the employees") to substitute the name of employer stated in the Statement of Case from Limkokwing University Of Creative Technology to Limkokwing University of Creative Technology International Sdn Bhd ("the applicant").
[2] The claim by the employees at the Industrial Court was for dismissal without just cause and excuse. That claim is still pending before the Industrial Court. Upon the application for substitution being allowed, the applicant filed the instant judicial review application to quash the same.
[3] I now state the reasons for my decision dismissing the application.
Background Facts
[4] The case of the employees was that the letters of appointment/transfers/ confirmation issued to them from time to time was in the name of "Limkokwing University Of Creative Technology". Based on these letters, the employees filed their representation under s 20 of the Industrial Relations Act 1967 ("the IRA ") to the Industrial Relations Department. Subsequently, a reference was made by the Minister of Labour ("the Minister") to the Industrial Court to adjudicate the dispute wherein the name of the other party was stated as "Limkokwing University Of Creative Technology".
[5] The employees claimed that the name "Limkokwing University Of Creative Technology" was the brand name while the entity, with legal personality, which manages "Limkokwing University Of Creative Technology" is the corporation known as Limkokwing University of Creative Technology International Sdn Bhd. The employees contended that the description of the employer as a party was a misnomer and a genuine mistake and that the substitution was necessary so as to avoid any reasonable doubt as to the identity of the employer.
[6] The application to substitute was made pursuant to s 29(a) and (g) of the IRA .
[7] The Industrial Court held that there is a factual and legal nexus between "Limkokwing University Of Creative Technology" and the applicant on the facts and circumstances of the case. As such, the naming of the applicant is necessary to make the adjudication effective and enforceable should the claim of dismissal be allowed.
Analysis And Decision
Illegality - No Power To Substitute A Party By The Industrial Court
[8] The applicant challenged the decision to substitute the party on the ground of illegality. It was argued that the Industrial Court had no jurisdiction to amend the name of the party stated in the reference of the Minister. The submission was articulated thus:
The representation made by the Minister to the Industrial Court is based on facts and investigations conducted at the preliminary stage. As such, in the event R2 to R11 intended to amend the name of the Company, they must refer the matter to the Industrial Relations Department to have the name of the party to be expressly amended in the Ministerial Reference to reflect the actual name. R1 therefore does not have the jurisdiction to make the amendment to substitute the party.
[9] The applicant referred this Court to two Supreme Court cases to support its case. The first was Dreamland Corp (M) Sdn Bhd v. Choong Chin Sooi & Industrial Court of Malaysia; ; [1988] 1 CLJ (Rep) 39 where it was held:
Accordingly, we hold that the workman was lawfully dismissed as was held by the Industrial Court. However, neither that Court n
