Back
2023 MarsdenLR 348
HIGH COURT (GEORGETOWN)
ANAND PONNUDURAI, J
Aneka Retail (M) Sdn Bhd – Plaintiff
Versus
Mahkamah Perusahaan Malaysia & Ors – Defendant
PERMOHONAN SEMAKAN KEHAKIMAN NO PA-25-38-08/2022
Pavitra Loganathan (with Sachpreetraj Singh Sohanpal) (Raj & Sach) for the applicant.
Ooi Zie Yiong (Phee, Chen & Ung) for the second and third respondants.
Rahazlan Affandi (Senior Federal Counsel) for the Attorney General’s Chambers.
The court determined that judicial review was appropriate for challenging awards of constructive dismissal due to procedural correctness based on Minister's referral, not an appeal under amended provisions.
Headnote:(A) Industrial Relations Act 1967 - Section 20 and Section 33C - Judicial review vs. appeal - Applicant initiated judicial review challenging awards for constructive dismissal and salary nonpayment of two former directors - Court determined that judicial review was the correct process based on referral by Minister rather than Director General, reinforcing the principle that the appropriate legal channels must be employed. (Paras 10, 12, 25)
(B) Appeal process amendments - Amendment to allow an appeal against Industrial Court awards, effective January 2021, did not apply as the reference was done prior to this. (Paras 14-16)
Facts of the case:
The Applicant, dissatisfied with the awards for constructive dismissal handed down by the Industrial Court, initiated judicial review instead of an appeal, arguing for quashing of the decisions based on procedural correctness. (Paras 3-7)
Findings of Court:
The court granted leave for the judicial review application and a conditional stay, requiring the Applicant to deposit award sums pending the outcome of the review. (Paras 10, 29)
Issues: The key issue was whether the Applicant should proceed with an appeal under Section 33C of the 1967 Act or via judicial review. (Paras 2, 25)
Ratio Decidendi: The court emphasized that the referral by the Minister prior to amendment justified the use of judicial review, and the saving provisions further supported the Applicant's course of action. (Paras 22, 24)
Result: The court dismissed the objection to the judicial review and ordered a conditional stay. (Paras 25, 29)
Anand Ponnudurai J:
JUDGMENT
Introduction
[1]This is an application pursuant to Order 53 of the Rules of Court 2012th July 2022.
[2]At the first case management date, an issue arose as to whether the Applicant had correctly utilized judicial review proceedings or ought to have filed an appeal under Section 33C Industrial Relations Act 1967 “1967 Act”) which came into force on 1st January 2021 vide Industrial Relations (Amendment) Act 2020 Act A1615. In this regard, learned Senior Federal Counsel contended that the Applicant ought to have filed an appeal and not proceed via a judicial review application.
Background Facts
[3]The two Respondents were former directors/employees of the Applicant company who were paid monthly salaries. Due to the Applicant’s continuing losses, the two Respondents had taken a pay cut since 2018. However, their salaries were then not paid at all in the months of April and May 2020 which led them to consider themselves as having been constructively dismissed with effect from 8th June 2020.
[4]Both Respondents then made their respective representations for reinstatement pursuant to section 201967 Act
[5]From paragraph 1 of the said awards, the Learned Chairman of the Industrial Court notes that the dispute was referred to the Industrial Court via a letter dated 6th January 2021 by the Minister of Human Resources pursuant to section 20(3)1967 Act
[6]Thereafter, following a full trial conducted in the Industrial Court, the Learned Chairman handed down two separate awards (Award Nos. 1630 of 2022 and 1631 of 2022) dated 25th July 2022 in respect of both Respondents. In both cases, the Learned Chairman concluded that the Respondents were constructively dismissed on account of fundamental breaches of their contract of employment i.e. nonpayment of salary and ordered the 2nd Respondent to be paid a sum of RM210,000.00 and the 3rd Respondent RM169,000.00 as back wages and compensation within 30 days from the date of the award.
[7]Being dissatisfied with the said awards, the Applicant had within the prescribed 90 days period filed this present application pursuant to Order 53 of the Rules of Court 2012
[8]On the first case management date, learned Senior Federal Counsel had informed the Court that they were objecting to the present application for leave on the basis that the Applicant ought to have filed an appeal pursuant to Section 33C of the 1967 Act
[9]In light of such objection, I then fixed the leave application for Hearing and also ordered that the cause papers be served on the Respondents’ Counsel so that the stay of execution application could be heard inter partes.
[10]Having subsequently heard all parties on 4th January 2023, I was of the considered view that the Applicant had correctly commenced proceedings by way of judicial review. I then granted leave to the Applicant to apply for an order of certiorari to quash the said awards.
[11]I further ordered a conditional stay of the award sums, in that the Applicant is to deposit the award sums with the Respondents’ Solicitors within 14 days to be held in an interest-bearing account pending the outcome of the substantive judicial review application.
[12]I will now provide the reasons for my decision.
Judicial Review or Appeal?
[13]Prior to the amendment made in January 2021 vide Industrial Relations (Amendment) Act 2020 Act A1615, any party aggrieved by a decision or award of the Industrial Court would ordinarily resort to Order 53 of the Rules of Court 2012
[14]However, despite there being tremendous progress in the law relating to judicial review in the past 20 years, there nonetheless remain differences between an appellate process and a judicial review process. In this regard, there have been calls by various stakeholders over the years for the law to be amended to allow an aggrieved party to appeal to the High Court against an award. Such requests gained traction and this led to the amendment and the inclusion of Section 33CIndustrial Relations (Amendment)
