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2021 MarsdenLR 2021
HIGH COURT MALAYA KUALA LUMPUR
MALNAGA SDN BHD – Appellant
Versus
MASLAMANI M YESAIAH & ANOR – Respondent
[Application For Judicial Review No: WA-25-165-05-2020]
The minister's discretion under s 20(3) of the Industrial Relations Act 1967 must involve a thorough examination of all relevant evidence; failure to do so warrants judicial review.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Judicial Review – The applicant challenged the 2nd respondent's decision to refer the 1st respondent's representation for adjudication, alleging the latter was unjustly dismissed – It was argued that the 2nd respondent failed to properly exercise his duties and acted merely as a rubber stamp – The court emphasized that the minister must objectively consider all relevant evidence before making a referral. (Paras 17, 21, 32)
(B) Constructive Dismissal – The 1st respondent claimed his redesignation amounted to constructive dismissal – The court found that contemporaneous documents demonstrated the 1st respondent had accepted the redesignation, and thus his claim was unsupported. (Paras 17-34)
(C) Minister's Discretion – The court underscored the minister's discretion in referrals, stating it is not absolute; an erroneous reference can be quashed if relevant considerations are ignored. (Paras 24, 36)
Facts of the case: Applicant is a company; 1st respondent was redesignated. The 1st respondent claimed constructive dismissal due to alleged demotion. The matter was referred to the Industrial Court before being challenged by the applicant.
Findings of Court: The court found significant error in the minister's failure to consider all relevant documents pertaining to the 1st respondent's redesignation and constructive dismissal claim.
Issues: Whether the minister wrongly exercised discretion under s 20(3) and whether the 1st respondent's claim for constructive dismissal was valid.
Ratio Decidendi: The minister must exercise discretion based on an objective examination of facts; ignoring relevant evidence violates the duty of proper consideration.
Result: Application was dismissed with costs.
JUDGMENT
[1] This is an application for Judicial Review by the applicant to quash the decision of the 2nd respondent in referring the 1st respondent's representation to the Industrial Court for adjudication pursuant to s 20(3) of the Industrial Relations Act 1967 (the "Act") which was communicated by way of a letter dated 25 February 2020.
Salient Facts
[2] The applicant is an entity incorporated under the law of Malaysia since 1982, focused primarily in offering comprehensive trackwork and track materials, rolling stock and components, depot equipment and Maintenance, Railway and Overhaul ("MRO") services to the railway industry.
[3] By way of a letter of appointment dated 17 May 2017, the 1st respondent was appointed as Chief Operating Officer ("COO") of the applicant with effect from 18 May 2017.
[4] On 13 February 2019, the applicant's Executive Director had scheduled a meeting with the 1st respondent. During this meeting, the 1st respondent was informed that due to the applicant's business reorganisation and restructuring, he would be redesignated as General Manager-Business Development. The applicant had thereafter placed the 1st respondent's redesignation on record vide a letter dated 18 February 2019 which was served on the 1st respondent.
[5] Pursuant to his redesignation, the 1st respondent continued his new role and had carried out his duties as General Manager-Business Development without any complaints until his last date of employment.
[6] Subsequently, the applicant had scheduled a Mid-Year appraisal with the 1st respondent on 7 August 2019. In this regard, the 1st respondent's Mid-Year Appraisal Form stated that the appraisal was made in his capacity as General Manager-Business Development. The 1st respondent had signed the Appraisal Form on 7 August 2019.
[7] However, vide a letter dated 28 August 2019, the 1st respondent issued a letter to the applicant, alleging the applicant had demoted him by way of the redesignation and that as a result, he considered himself constructively dismissed.
[8] Thereafter, a conciliatory meeting was held on 30 September 2019 at the Industrial Relations Department ("IRD") between the applicant and the 1st respondent in accordance with s 20 of the Act.
[9] Pursuant to the conciliatory meeting on 30 September 2019, the applicant had offered to reinstate the 1st respondent to his last held designation with no loss of seniority and benefits. This was then recorded vide a letter dated 9 October 2019 issued to the 1st respondent and the IRD officer.
[10] The 1st respondent, however, rejected the applicant's offer of reinstatement vide an email dated 9 October 2019.
[11] As the matter could not achieve an amicable resolution, the same was referred to the 2nd respondent to decide whether to refer the same to the Industrial Court. In the circumstances, the 2nd respondent, issued a letter dated 25 February 2020 whereby the applicant was informed that the 1st respondent's representation was referred to the Industrial Court for adjudication.
[12] The applicant then filed the present application to challenge the 2nd respondent's decision vide his letter dated 25 February 2020.
Summary Of The Applicant's Contentions
[13] Summarily, it is the applicant's contention that the 2nd respondent had failed to exercise his duties properly and merely acted as a rubber stamp without sieving through the entire facts of the matter. It is submitted that had the 2nd respondent exercised his duties diligently, it will be abundantly obvious that the 1st respondent's allegation of a purported demotion to be nothing but a frivolous claim. It is further submitted that the 2nd respondent had failed to take into account material facts in the form of contemporaneous documents that show the 1st respondent was not only informed of his redesignation but had accepted the redesignation. As such the 2nd respondent is submitted to have erred in referring the 1st respondent's representation to the Industrial Court.
Sum
