JUDGMENTBY: NIK HASHIM JC

Dr Rayanold Pereira (the applicant) was employed by Klinik Samuel (the second respondent) as an assistant to an obstetrician gynaecologist on 1 April 1989 at a salary of RM3,500 per month. He claimed that he was given an interest-free loan of RM30,000 by Dr Samuel, a partner of the second respondent, to purchase a house belonging to Dr Samuels uncle. The applicant paid the loan and by July 1992 the outstanding balance was about RM14,000. Dr Samuel suggested to the applicant that he take a bank loan of RM20,000 (to cover the outstanding sum plus interest) but this was rejected by the applicant. Dr Samuel wrote a letter to the bank whereby he cancelled the standing instruction to stop payment of salary into the applicants account. The applicants salary for the month of March 1993 was not paid by the second respondent. The applicant further claimed that on 12 April 1993, a patient insisted on seeing him. At the clinic, the nurse on duty ignored the applicants instruction to take out the patients medical card, forcing the applicant to use an empty card instead. The applicant was unable to examine the patient in his consultation room because the room was occupied by another doctor by the name of Dr Jasbir Virik, who refused to vacate the room. Dr Jasbir Virik told the patient that the applicant was no more working for the clinic and he examined the patient again.

On 15 April 1993, the applicant wrote a letter to the second respondent whereby he considered himself constructively dismissed without just cause or excuse and accordingly made representations to the Director General of Industrial Relations. Pursuant to a conciliation meeting held by the Director General, the Director General notified the Minister that there was no likelihood of a settlement. The Minister decided not to refer the representations to the Industrial Court. Hence this application for orders of certiorari and mandamus.

Learned counsel for the applicant contended that since there was no provision for a loan in the contract of service, the deduction of the applicants salary by the second respondent amounted to a breach of contract of employment by the latter. Moreover, there was a breach of mutual respect in that another doctor was placed in the applicants room. Since the Minister did not state his reasons for not referring the matter to the Industrial Court, the Minister could not be said to have considered whether the application was frivolous or vexatious. Therefore, the Minister had acted unreasonably when he refused to make references to the Industrial Court.

On the other hand, both the respondents submitted in effect that there was no issue of dismissal involved in this case. The deduction of salary was not a breach of the terms of the contract of employment. The Minister had exercised his discretion correctly when he refused to refer the case to the Industrial Court.

In Minister of Labour, Malaysia v Chan Meng Yuen and another appeal [1992] 2 MLJ 337, the (then) Supreme Court held that the Minister is not required to give any reasons when he exercises his discretion under s 20(3) of the Industrial Relations Act 1967 (the Act) not to refer the representations to the Industrial Court. But the Court of Appeal in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481 was of the view that when refusing to refer representations in the exercise of his discretion under s 20(3) of the Act, the Minister is reasonably expected to give reasons for his decision. If he gives no reasons or gives inadequate reasons, it is open to the court to conclude that he had no good reasons for making the decision he did.

In this case, the Minister gave a reply in a letter to the applicant which reads as follows:

YB Menteri Sumber Manusia telah memutuskan di bawah s 20(3) Akta

Perhubungan Perindustrian 1967 bahawa rayuan tuan tidak wajar

dirujukkan ke Mahkamah Perusahaan.

In my view, the Ministers reply