The Minister's discretion under s. 20(3) of the Industrial Relations Act 1967 is wide but must be exercised without improper motive; failure to refer a complaint does not indicate abuse of discretion.

Faiza Tamby Chik J:

This is an application for, inter alia, an order of certiorari and an order of mandamus of the decision of the Honourable Minister of Human Resources ("the 1st respondent") made on 30 July 1998 pursuant to s. 20(3) of the Industrial Relations Act 1967 ("the said Act"). The aforesaid decision of the 1st respondent was in respect of a representation of unfair dismissal made by the applicant under s. 20(1) of the said Act. The 1st respondent decided not to refer the applicant's representation to the Industrial Court for adjudication in accordance with the discretion vested in him under s. 20(3) of the said Act. Sections 20 (1) and 20(3) of the said Act read as follows:

(1) Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed.

(3) Upon receiving the notification of the Director General under subsection (2), the Minister may, if he thinks fit, refer the representations to the court for an award.

Section 20 (3) Industrial Relations Act 1967 confers upon the Minister a discretionary power either to refer or not an applicant's representation to the Industrial Court. If the 1st respondent refuses to refer to the Industrial Court, it does not mean he has exceeded his jurisdiction or he has acted ultra vires the Act. The Supreme Court in the case Minister of Labour, Malaysia v. Lie Seng Fatt [1990] 2 MLJ 9 at p. 12 states:

The Minister's discretion under s. 20(3) is wide but not unlimited. As stated earlier, so long as he exercises his discretion without improper motive, the exercise of discretion must not be interfered by the court unless he has misdirected himself in law or had taken into account irrelevant matters or had not taken into consideration relevant matters or his decision militiates against the object of the statute.

Otherwise he had a complete discretion to refuse to refer a complaint which is clearly frivolous or vexatious which in our view this is one.

I am of the view that the 1st respondent's decision not to refer the applicant's representation to the Industrial Court did not amount to an abuse of power. The Court of Appeal in the case of Michael Lee Fook Wah v. Minister of Human Resources Malaysia 1997 MarsdenLR 1389, at p. 311 states:

We hold that, the very fact that the Minister did not refer per se any particular trade dispute, does not necessarily mean that the Minister has abused his discretion. It is for him to be satisfied that it is a fit and proper case to refer to the Industrial Court. An exercise of a discretion does not always mean that it should be exercised only in a positive manner. A negative act, as in the present case, is equally an exercise of a discretion, provided the Minister had considered every aspect of the case.

On the facts and circumstances of the present case, we are satisfied that the Minister had exercised its discretion in a manner in accord with the scheme and intention of the Act, and as such the court should not interfere.

Also, the Court of Appeal in Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan and Another Appeal 1997 MarsdenLR 1510 at p. 513, also commented on the Minister's discretionary power:

Put simply, the first question which the Minister ought to ask himself is whether the way in which he proposes to exercise his discretion will have the effect of preventing or setting a dispute; for that is what the Act is primarily aimed at. However, as I have explained just a moment ago, this approach to the exercise of discretion is onl