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2012 MarsdenLR 728
COURT OF APPEAL (PUTRAJAYA)
RAMLY ALI, AZHAR MA’AH, ABDUL AZIZ ABDUL RAHIM, JJ
Sabah Forest Industries Sdn Bhd – Plaintiff
Versus
Industrial Court Malaysia & Anor – Defendant
CIVIL APPEAL NO S-01–227 OF 2011
Judicial review is permissible for challenging inferior tribunal decisions, focusing on both procedural and substantive grounds, despite an ouster clause in law.
Headnote:(A) Industrial Relations Act 1967 - Sections 33A and 33B - Judicial Review - Respondent dismissed without just cause - The Industrial Court found that the appellant failed to prove allegations of misconduct against respondent. The High Court dismissed appellant's application for judicial review, asserting that direct challenge to the High Court was not permissible. The court reiterated that the Industrial Court alone has discretion to refer matters to the High Court under section 33A. (Paras 15-16, 49, 63-65)
(B) Judicial Review - Scope and procedure - Judicial review is available to challenge inferior tribunal decisions, regardless of an ouster clause, provided the challenges concern both procedural and substantive grounds. The Federal Court affirmed that the law allows judicial review without first invoking section 33A. (Paras 66-68, 83)
Facts of the case:
The respondent, employed since 1984, was dismissed in 2006 based on unspecified allegations. The Industrial Court ruled the dismissal was unjustified, requiring the appellant to pay back wages and compensation.
Findings of Court:
The High Court dismissed the appellant's judicial review application, stating the proper procedure was not followed.
Issues: Whether the High Court has jurisdiction for judicial review when specific provisions in section 33A govern such matters.
Ratio Decidendi: The court held that legal provisions do not preclude judicial review for procedural irregularities or substantive issues, thus allowing for assessment of the Industrial Court's award on its merits.
Result: Appeal allowed with costs, and the matter remitted for full hearing.
This is an appeal against the decision of the learned judicial commissioner dismissing the appellant’s judicial review application on a preliminary objection of the second respondent on the ground that the appellant should have, in the light of the specific provisions of s 33A Industrial Relations Act 1967 (‘the IRA’)
FACTUAL BACKGROUND
The second respondent commenced employment with the appellant company as an administration superintendent on 1 August 1984. He was confirmed in that post on 20 December 1984. He was then promoted to the post of assistant administration manager on 1 February 1996 and was assigned with the responsibility to manage all housing matters of the company. He held that post until he was dismissed on 2 March 2006.
On 7 February 2006, the second respondent was issued with a show cause letter and was suspended from work for 14 days with half pay with effect from 8 February 2006 with regard to two allegations of misconduct. He replied to the show cause letter on 9 February 2006. He was later served with a letter dated 13 February 2006 requiring him to appear before a domestic inquiry proceeding on 16 February 2006 purportedly on two charges. After expiry of his 14 days suspension, he was later suspended from work on full pay until the panel of the domestic inquiry had made a decision.
On 2 March 2006, the appellant company, on recommendation of the panel of the domestic inquiry, dismissed the second respondent from his employment.
The dispute, as to his dismissal, was referred to the Industrial Court by the Minister under s 20(3)IRA
AT THE INDUSTRIAL COURT
The Industrial Court found that the appellant company has failed on thebalance of probability to establish both the allegations against the second respondent and concluded that the second respondent was dismissed without just cause or excuse. The Industrial Court ordered the appellant company to pay backwages to the second respondent from the date of his dismissal (on 2 March 2006) till the last date of the hearing (on 9 October 2008) but limited to 24 months, together with compensation of one month’s salary for each completed year of service.
Aggrieved by the decision of the Industrial Court, the appellant company filed an application for judicial review at the High Court pursuant to O 53 of the RHC.
AT THE HIGH COURT
On 15 January 2010, the appellant filed an ex parte application for leave to initiate judicial review proceedings. On 11 February 2010, leave was granted for the appellant to apply for an order of certiorari and to stay the Industrial Court award and/or actions and proceedings by the second respondent pending the disposal of the judicial review. On 25 February 2010 notice of hearing of the application for judicial review was filed at the High Court, and on 25 March 2010 notice of preliminary objection of the second respondent was served on the appellant’s solicitors. On 30 March 2010, the learned judicial commissioner allowed the preliminary objection and dismissed the judicial review application with costs to the second respondent to be taxed unless agreed.
On 21 April 2010, the appellant being dissatisfied with the said order of the learned judicial commissioner appealed to the Court of Appeal against the said decision. Hence the present appeal before us.
THE SECOND RESPONDENT’S CONTENTIONS
At the commencement of the inter parte hearing for the judicial review proceeding, the learned counsel for the second respondent raised a preliminary objection on the mode of proceeding adopted by the appellant. The second respondent contended that the application to challenge the said award ought to have been by way of reference to the High Court on question of law unders 33AIRAs 33BIRA
THE APPELLANT’S CONTENTIONS
The appellant on the other hand contended that the High Court alwayshad the review jurisdiction over the decision of inferior tribunal, including the Industrial Court, even in the face of the provisions of s 33AIRA
FINDINGS OF THE HIGH COURT
