JUDGMENT

Anand Ponnudurai J:

Introduction

[1] This is an application pursuant to for leave to apply for an order of certiorari to quash Industrial Court Award Nos 1630 of 2022 and 1631 of 2022, both dated 25 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 s 33C of the Industrial Relations Act 1967 (hereinafter referred to as the said "1967 Act") which came into force on 1 January 2021 videIndustrial 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.

[3] The two Respondents were former directors/employees of the 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 8 June 2020.

[4] Both Respondents then made their respective representations for reinstatement pursuant to s 20 of the 1967 Act within the prescribed 60 days of their dismissal.

[5] From para 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 6 January 2021 by the Minister of Human Resources pursuant to s 20(3) of the 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 25 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 for leave to apply for an order of certiorari to quash the said awards and also sought an order to stay the execution of the award sums pending disposal of the judicial review application.

[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 s 33C of the 1967 Act as amended.

[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 4 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 videIndustrial Relations (Amendment) Act 2020 Act A1615, any party aggrieved by a decision or award of the Industrial Court would ordinarily resort to seeking an order of certiorari to quash such award.

[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 judi