IN THE INDUSTRIAL COURT OF MALAYSIA CASE NO.: 22/4-1075/21 BETWEEN NG GIM SIONG AND

1. STRENUUS CONSTRUCTION SDN BHD

2. FOONG KOK KEE @ FOONG KWOK KEE (NRIC NO: 300104-10-5283)

3. LAU SYEA LIN @ LOW SYEA LIN (NRIC NO: 760820-10-5097) AWARD NO. 2377 OF 2023 BEFORE : Y.A. TUAN PARAMALINGAM A/L J. DORAISAMY VENUE : Industrial Court of Malaysia, Kuala Lumpur DATE OF REFERENCE : 17.03.2021 DATES OF MENTION : 18.05.2021; 23.06.2021; 02.07.2021; 04.01.2022;

21.02.2022; 28.04.2022; 24.06.2022; 06.09.2022; 28.04.2023; 05.05.2023; 15.08.2023 & 29.08.2023 DATE OF HEARING OF APPLICATION : 31.10.2023 REPRESENTATION : Mr. Teh Hong Jet Messrs. Tan Kim Siong & Teh Hong Jet Counsel for the Claimant Dato’ Arthur Wang Ming Way together with Mr. Nattawynn Su Wit Messrs. Arthur Wang, Lian & Associates Counsel for the Respondents REFERENCE :

This is a reference made under Section 20 (3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Ng Gim Siong (hereinafter referred to as “the Claimant”) by Strenuus Construction Sdn. Bhd. (hereinafter referred to as “the 1^st Respondent”) on 18 March 2020. The 2^nd and 3^rd Respondents were joined as parties vide Interim Award No. 1788 of 2022 dated 15 August 2022.

AWARD INTRODUCTION [1] The Respondents filed an application before this Court on 28 August 2023 (Enclosure 99A) under Section 29(fa) and (g) of the Industrial Relations Act 1967 for an order that the Claimant’s claim be struck out.

GROUNDS FOR THE RESPONDENTS’ APPLICATION [2] The grounds for the Respondents’ application are contained in the Affidavit In Support of Poon May Yien affirmed on 21 August 2023 (“the Respondents’ Affidavit”)

and briefly are as follows:-

(i) that the 1^st Respondent had been wound up by an Order of the High Court dated 10 November 2021 (“the Winding Up Order”) vide Shah Alam High Court Winding Up No. BA-28NCC-13-

01/2021;

(ii) the Claimant had active knowledge of the status of the 1^st Respondent but opted to disregard the pre-requisite laid down under Section 451(2) of the Companies Act 2016;

(iii) the Claimant had failed to obtain the necessary leave from the Court to commence this action against the 1^st Respondent;

(iv) thus, the Claimant does not possess any merit and/or cause of action in initiating this action against the 1^st Respondent.

THE CLAIMANT’S RESPONSE [3] The Claimant’s response can be found in the Affidavit In Reply affirmed by Ng Gim Siong on 11 September 2023, wherein the Claimant contends as follows:-

i. the 1^st Respondent does not have the locus standi to file the application as it had already been wound up and that the 1^st Respondent’s solicitors did not obtain any sanction from the Winding Up Court to act for the 1^st Respondent in this application and thus the application is null and void and ought to be struck out;

ii. Section 451(2) of the Companies Act 2016 is not applicable in an Industrial Court proceeding;

iii. if leave is required for the Claimant to proceed in this matter, then the Winding Up Order had automatically stayed all proceedings and thus there is no legal basis for the matter to be struck off on the ground that leave had not been obtained by the Claimant;

iv. the Claimant has a cause of action and/or merits against the 2^nd and 3^rd Respondents.

THE DECISION [4] At the outset, it was not disputed by the parties that the 1^st Respondent had already been wound up vide the Winding Up Order on 10 November 2021. Due to the said Winding Up Order, the question of whether leave to proceed with this action by the Claimant against the 1^st Respondent is required comes into question.

[5] Learned Counsel for the Respondents submits that due to the Winding Up Order against the 1^st Respondent, Sections 451(2) and 471(1) of the Companies Act 2016 is applicable in the circumstances in that the Claimant must obtain leave from the Winding Up Court before proceeding with his case here. [6] Section 451(2) of the Companies Act 2016 provides:-

“After the commencement of the winding up, no action or proceed