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2023 MarsdenLR 2035
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 the jurisdiction to substitute parties under Section 29 of the Industrial Relations Act 1967, provided there exists a reasonable factual or legal nexus between the parties.
Headnote:(A) Industrial Relations Act 1967 - Section 20 and Section 29 - Judicial review application dismissed - Employees sought substitution of employer's name from Limkokwing University Of Creative Technology to Limkokwing University of Creative Technology International Sdn Bhd - The Industrial Court found a legal nexus between the two entities, justifying the substitution for effective adjudication. (Paras 4, 5, 8, 12, 23)
(B) Jurisdiction - The Industrial Court has the power to substitute parties once it is seized with threshold jurisdiction, as per Section 29 of the IRA, which allows for necessary amendments to ensure effective adjudication. (Paras 11, 12)
(C) Irrelevant factors - The applicant's claim of irrationality due to reliance on a rejected affidavit and separate legal entity argument was found without merit, as the necessary nexus existed. (Paras 19, 24)
Facts of the case:
Employees claimed wrongful dismissal and sought to correct the employer's name in the proceedings, asserting the original name was a misnomer. The Industrial Court allowed the substitution for clarity in the proceedings. (Paras 2, 4, 5)
Findings of Court:
The court found that the Industrial Court acted within its powers, and the substitution was necessary to ensure the adjudication was effective and enforceable. (Paras 12, 23)
Issues: The main issues included whether the Industrial Court had the jurisdiction to substitute a party and whether the substitution was justified based on the relationship between the entities. (Paras 8, 19)
Ratio Decidendi: The court held that the Industrial Court could substitute parties under Section 29 of the IRA, as it had the necessary jurisdiction, and the substitution was justified by the existing legal nexus. (Paras 11, 23)
Result: Application for judicial review dismissed.
| Table of Content |
|---|
| 1. judicial review application dismissed (Para 1 , 2 , 4 , 5 , 6 , 7) |
| 2. challenge on grounds of illegality and irrationality (Para 8 , 9 , 10 , 19 , 20 , 21 , 22 , 24) |
| 3. court's analysis of substitution powers (Para 11 , 12 , 13 , 14 , 15 , 16 , 18 , 23) |
| 4. threshold jurisdiction of industrial court (Para 17) |
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, neithe
