Compensation in lieu of reinstatement is not viable for employees exceeding retirement age as per established law.

[1] This is an appeal by the appellant against the decision of the High Court at Kuala Lumpur on 15 December 2014 in dismissing the appellant's judicial review application against the Final Award No: 1704/2013 dated 16 October 2013 ("final award") in the Industrial Court reference No: 7/4/1905/07.

[2] The appellant had sought the following reliefs in its application for judicial review:

i. An order for certiorari to quash the aforesaid final award; and/or

ii. In the alternative, a declaration that the said final award was null, void and could not be enforced as it was tainted with procedural impropriety, irrationality and disproportionate and/or ultra viress 30(5) and/or s 29 of the Industrial Relations Act 1967 (Act 177) (hereinafter referred to as "the IRA 1967"); and

iii. Costs.

The Brief Background Facts

[3] The 1st respondent was an employee of the 2nd respondent. Her last designation was as an Executive Housekeeper at Royal Adelphi Seremban, effective in 1 July 1999 earning about RM5,000.00 per month.

[4] In early 2007, disciplinary action was taken against the 1st respondent. A domestic inquiry was convened and the 1st respondent was found guilty of the charges levelled against her. She was suspended from work for 14 days with no pay plus a warning.

[5] Subsequently, the Housekeeping Department was split into two divisions, namely the Administrative and Operations Divisions. The 1st respondent was redesignated to head the Administrative Division.

[6] Dissatisfied with the decision of the domestic inquiry and the subsequent developments that followed suit, the 1st respondent considered herself to have been constructively dismissed on 10 March 2007 by the 2nd respondent. The 1st respondent then filed a representation with the Industrial Relations Department for determination. The matter could not be resolved at the conciliation stage and was then referred to the Industrial Court for determination by the Honourable Minister of Human Resources under s 20(3) of the IRA 1967. The case was then registered at the Industrial Court on 24 September 2007 vide Industrial Court reference No: 7/4-1905/07.

[7] The 1st respondent claimed for reinstatement without any loss of wages, allowances, service, seniority, privileges or benefits.

[8] The 1st respondent later discovered that the 2nd respondent had ceased to be in business. Thereafter, the 1st respondent applied for the appellant to be joined as a party to the proceeding pursuant to s 29(a) of the IRA 1967.

[9] The application was granted by the 3rd respondent on 11 July 2012 under Interim Award No 949 Tahun 2012 ("interim award"). The full purport and grounds of the 3rd respondent is at pp 158 to 163, Bahagian C, Jld III, Rekod Rayuan ("RR").

[10] The appellant later sought for the interim award to be judicially reviewed on the grounds that there was absolutely no nexus between the appellant and the 2nd respondent that could render any award in respect of the 1st respondent's claim to be effective and enforceable against the appellant. The High Court dismissed the appellant's judicial review application on 29 January 2013. The said order of the High Court is at pp 295-296, Bahagian C, Jld III, RR. The appellant made no further appeal to the Court of Appeal against the said dismissal. These facts were not disputed by the parties herein.

[11] The 2nd respondent, though still a party to the reference in the Industrial Court, had no longer attended any of the hearings before the 3rd respondent. The appellant, however, remained as a party to the action in view of the joinder application.

[12] The appellant conducted a search on the 2nd respondent and found that the 2nd respondent had been wound up since 2 December 2010 and the Official Rec