Syaiful Rizal Abdul Ghani v Yayasan Bank Rakyat (WA-23NCvC-37-06/2025)

SYAIFUL RIZAL ABDUL GHANI (No. K/P: 740422-10-5587)

MOHD MUKHTI ABD RAHMAN (No. K/P: 880507-26-5357)

MOHAMAD GHAZALI BIN ZAINAL ABIDIN (No. K/P:740803-10-5441)

MUHAMAD JOHARY BIN ABDUL JALIL (No. K/P: 730925-10-5731) …PLAINTIF-PLAINTIF DAN 1. YAYASAN BANK RAKYAT (No. Pendaftaran: PPAB-06/2007)

BANK KERJASAMA RAKYAT MALAYSIA BERHAD (No. Pendaftaran Koperasi: 195972600002 (2192)) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The crux of the Plaintiffs’ case is that they were dismissed by their employer, which was Yayasan Bank Rakyat (the 1st Defendant 10/03/2026 21:13:02 WA-23NCvC-37-06/2025 Kand. 40 herein). Instead of pursuing a dismissal claim against the 1st Defendant at the Industrial Court, the Plaintiffs chose to file this civil suit. Besides naming their employer (the 1st Defendant) as a defendant in this civil suit, they ‘dragged’ Bank Kerjasama Rakyat Malaysia Berhad into this civil suit as the 2nd Defendant by alleging torts of conspiracy, etcetera. [2] The Defendants responded by filing an application under O.18 r.19 Rules of Court 2012 to strike out the Plaintiffs’ claim against them, contending, inter alia, that the Plaintiffs’ claims against them are plain and obviously unsustainable in a civil court. [3] After reading the affidavits and hearing submissions by learned counsel, I found that the Plaintiffs’ claim is indeed plain and obviously unsustainable, and amounted to an abuse of process of court. The Defendants’ striking-out application was therefore allowed. My reasons, in detail, are as explained below. Background Facts [4] The 1st Plaintiff was the Chief Executive Officer of the 1st Defendant, i.e. the foundation. [5] The 2nd, 3rd and 4th Plaintiffs were at all material times employees of the 1st Defendant. The 2nd Plaintiff served as Head of Operations and had been employed since 15th September 2011. The 3rd Plaintiff served as Head of Secretariat and had been employed by the 1st Defendant since 5th October 2020 and lastly, the 4th Plaintiff served as Manager of the Human Resources and Administration Department since 23rd December 2016. [6] The 2nd Defendant is a cooperative bank that was registered decades ago under the Cooperative Companies Ordinance 1948. [7] By virtue of a Trust Deed dated 20th March 2007("the Trust Deed") made between the 2nd Defendant and seven individuals who were referred to therein as trustees, it was recorded that the shareholders of the 2nd Defendant (Bank Rakyat) had, in an Annual General Meeting held on 11th June 2005, resolved to set up an education fund to assist the citizens of Malaysia, and that the said bank’s Board of Directors had on 3rd January 2006 passed a resolution to establish a charitable foundation to manage a trust fund with the primary objective of providing financial assistance to eligible Malaysians to pursue their education in the institutes of higher learning in Malaysia. Money for the Fund is from the 2nd Defendant. [8] The 1st Defendant is the foundation established by the 2nd Defendant pursuant to the Trust Deed to manage the trust fund. It was registered under the Trustees (Incorporation) Act 1952. [9] The management and governance of the 1st Defendant is supervised by the Board of Trustees, comprising qualified individuals. The maximum number of members of the Board of Trustees is fifteen while the minimum is two, at any given time. [10] On 21st April 2025, the 1st, 2nd and 3rd Plaintiffs respectively received by hand a letter from the 1st Defendant dated 21st April 2025 containing a ‘garden leave notice’ which was to take effect from 21st April 2025. The letters were signed by three members of the 2nd Defendant’s Executive Committee ("EXCO"), namely, its Chairman, Amren Faisal Fadzil, and two members, Nizam Sani and Mohd Azril Fadzli Azmi. The 1st, 2nd and 3rd Plaintiffs were directed to surrender their access cards and escorted out from their office by Auxiliary Police serving the 1st Defendant. [11] Clause 8 of the Trust Deed permits the 2nd Defendant, in specified circumstances, to take-over the control of the management of the 1st Defendant foundation, and to issue directives on the operations and management of the fund, as well as to appoint, remove, or reappoint members of the Board of Trustees of the 1st Defendant. [12] On 25th April 2025 the 1st Plaintiff received a Termination Letter dated 25th April 2025 purportedly on the basis that he had breached the terms of the ‘garden leave’. The 2nd and 3rd Plaintiffs were issued with suspension notices on the evening of 25th April 2025 while the 4th Plaintiff was subsequently served with a suspension notice dated 29th April 2025. All the suspension notices were issued on the 1st Defendant’s letterhead. [13] On 29th April 2025, the 1st Defendant announced the appointment of a new Chief Executive Officer with immediate effect. [14] Show Cause Letters were issued to the 2nd, 3rd and 4th Plaintiffs on 8th May 2025 by the Head of Human Resources and Administration Department of the 1st Defendant, raising allegations of misconduct. Domestic Enquiries were scheduled but the 2nd, 3rd and 4th Plaintiffs respectively declined to attend. The Plaintiffs’ Claims [15] In their Statement of Claim, the Plaintiffs seek the issuance of several declarations and damages to be paid by the Defendants. The declarations sought are that the 2nd Defendant has committed the “tort of unlawful interference” and the “tort of conspiracy to injure the Plaintiffs”, that the 1st Defendant has wrongfully terminated the 1st Plaintiff’s contract of service and constructively dismissed the 2nd, 3rd and 4th Plaintiffs from their contracts of service. Ultimately, the consequential order sought by the Plaintiffs is for damages to be paid to them. [16] The Plaintiffs’ learned counsel submits that the core issue in the present suit is whether the 2nd Defendant is legally empowered, by virtue of Clause 8 of the Trust Deed, to exercise control over the 1st Defendant’s internal administration and human-resource matters, including the issuance of garden leave letters to the 1st Defendant’s employees, and whether such actions are ultra vires the Trust Deed. The Plaintiffs submit that the scope of the 2nd Defendant’s authority under Clause 8 is confined strictly to trust and governance matters and does not extend to employment actions against the 1st Defendant’s employees. [17] The Plaintiffs further pleaded that the 1st Defendant had failed to follow the procedure for disciplinary action against its employees and had allegedly breached Clause 15.15 of the 1st Defendant’s Code of Ethics, Misconduct and Disciplinary Procedure (Human Resource Policy). They aver that no findings of misconduct have been lawfully or conclusively made against any of the Plaintiffs. [18] The Plaintiffs further pleaded that the “tort of unlawful interference” and the “tort of conspiracy to injure” them had been committed by the Defendants. [19] Further, the Plaintiffs also pleaded that s.52(1) of the Industrial Relations Act 1967 makes it necessary for them to file their claims in a civil court instead of at the Industrial Court because the 2nd Defendant is allegedly under the supervision of Kementerian Pembangunan Usahawan dan Koperasi (KUSKOP), i.e. the Ministry of Entrepreneur Development and Cooperatives. The Defendants’ Striking-out Application [20] The Defendants submit that the facts of this case present a plain and obvious case for this Court to exercise its powers under O.18 r.19 Rules of Court 2012 to strike out the Plaintiffs’ claim. [21] They contended that the Plaintiffs’ claims are simply based on the fact that they were dismissed from their employment by the 1st Defendant, and that the Plaintiffs’ allegations of tortious conduct by the Defendants are merely "building blocks" for a complaint of unfair dismissal. [22] The Defendants’ learned counsel relies on the decision of the Court of Appeal in 7-Eleven Malaysia Sdn Bhd v Ashvine Hari Krishnan [2023] 3 MLJ 469 wherein the Court of Appeal had allowed 7- Eleven’s appeal and struck out the employee’s claim summarily as the main authority to urge this Court to allow the Defendants’ striking-out application. Analysis of the Facts and Law [23] The law on the application of O.18 r.19 Rules of Court 2012 is trite. Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 is still the oft-quoted authority after 30 years: that the facts and evidence must show that a case is a plain and obviously unsustainable case for the court to exercise its discretion to strike it out. [24] The Plaintiffs’ Amended Statement of Claim is lengthy. However, once it is sieved for relevant facts in a chronological order, it becomes abundantly clear that the core point is about the Plaintiffs having being dismissed as employees of the 1st Defendant. [25] To put the salient facts in perspective, the 2nd Defendant had on 21st April 2025 exercised its power to form an Executive Committee (EXCO) to take-over the management of the 1st Defendant. After the EXCO was formed, the EXCO members decided to ask the Plaintiffs to go on ‘garden leave’ with full salary and benefits under their employment contracts. It is not clear whether the reason for the EXCO deciding to put the Plaintiffs on ‘garden leave’ was due to their discovery of misconduct or to facilitate investigation or auditing of the 1st Defendant’s financial affairs or simply out of bad faith as alleged by the Plaintiffs. In any event, the original reason is immaterial because it was the Plaintiffs’ subsequent conduct which ultimately led to their dismissal. This is because after the Plaintiffs were put on ‘garden leave’, the EXCO discovered that the Plaintiffs had allegedly acted in defiance of the directions given by the EXCO. The Plaintiffs were respectively issued with Show Cause letters. [26] The 1st Plaintiff who subsequently received a letter of termination did file a claim in June 2025, pursuant to s.20 of the Industrial Relations Act 1967, for his claim to be referred to the Industrial Court. He had alleged that he was dismissed “without just cause or excuse”. However, no reason was given for his subsequent discontinuance of his claim in the Industrial Court. [27] As for the 2nd Plaintiff, he was issued with a letter by the 1st Defendant, charging him for misconduct in breach of the terms of his ‘garden leave’. One of the charges was for attempting to facilitate online transactions in defiance of the directions given by the 1st Defendant’s EXCO. Screenshots from the said letter, showing two of the five charges levelled against the 2nd Plaintiff, are pasted below: [28] As shown above, a hearing date was fixed for the 2nd Plaintiff to attend a Domestic Enquiry on 23rd June 2025 but he did not attend. [29] The 3rd Plaintiff was also issued with a Show Cause letter and directed to attend a Domestic Enquiry on 24th July 2025 but he too did not attend it. Screenshot from the said letter, showing one of the charges levelled against the 3rd Plaintiff, is pasted below: [30] Likewise for the 4th Plaintiff, the 1st Defendant issued him a Show Cause letter and also directed him to attend a Domestic Enquiry but he did not attend. Screenshots from the said letter, showing three of the charges levelled against the 4th Plaintiff, are pasted below: [31] With respect, this Court finds that the so-called core issue raised by the Plaintiffs is a non-issue. Learned counsel for the Plaintiffs has sought to frame it as an issue of whether the 2nd Defendant is legally empowered, by virtue of Clause 8 of the Trust Deed, to exercise control over the 1st Defendant’s internal administration and human-resource matters. With respect, this is clearly a non-issue because the Plaintiffs are not privy to the Trust Deed. Their relationship with the 1st Defendant were based on the 1st Defendant’s employment contracts with them – nothing to do with the Trust Deed. The Trust Deed contains the terms governing the 2nd Defendant and the trustees. I would respectively reiterate that the Plaintiffs were employees of the 1st Defendant. Thus, it is not open to the Plaintiffs to rely on the Trust Deed to attempt to create a cause of action against the Defendants. [32] Reading Clause 8 of the Trust Deed carefully, I find that it has been drafted widely to empower the 2nd Defendant – which is the source of funds for the 1st Defendant – to act swiftly to protect the trust fund, for example, when the Board of Trustees have, for whatever reasons, failed to act expeditiously to do so. The said Clause 8 confers power on the 2nd Defendant (referred to as “Bank Rakyat” therein), inter alia, to take-over the management of the 1st Defendant (referred to as “Yayasan” therein), give directions for the operation and management of the trust fund, and even to terminate or appoint any of the trustees. Such power is exercisable when the 2nd Defendant is of the view that the situation warrants such action. The said Clause 8 reads as follows: [33] Allegations of notice having being given late (even if true) by the 2nd Defendant to some members of the Board of Trustees would not invalidate the exercise of the 2nd Defendant’s powers under Clause

This is clear from the fact, as expounded above, that Clause 8 empowers the 2nd Defendant to exercise its discretion to take-over the management of the 1st Defendant if it deems fit to do so, including to terminate the appointment of trustees. [34] There is no requirement in Clause 8 nor in any other clauses in the Trust Deed for the 2nd Defendant to hold a hearing or to seek the approval of a cabinet minister before it could exercise its powers under Clause 8. In my humble view, such powers are necessary to enable the 2nd Defendant to act swiftly to protect the trust fund and also to preserve evidence relating to the management of the trust fund and/or to prevent the dissipation of the 1st Defendant’s assets or destruction of evidence. [35] It is my judgment that any challenge to the 2nd Defendant’s power to take-over the management of the 1st Defendant (referred to as “Yayasan” in the said Clause 8) must be mounted by the Board of Trustees or by the Minister of Entrepreneur Development and Cooperatives, but certainly not by the Plaintiffs who are employees of the 1st Defendant. With respect, the Plaintiffs have no locus standi to challenge the invocation of Clause 8 of the Trust Deed by the 2nd Defendant. If this route is possible, it would be akin to allowing an employee who has been dismissed to challenge the power of the majority shareholders of his employer company to appoint new board directors or a new management team simply because the new directors decided to dismiss him. [36] As employees who have grievances against their employer (the 1st Defendant) for having being allegedly dismissed without just cause or excuse, or constructively dismissed (as alleged by the 2nd, 3rd and GUAMAN SIVIL NO. WA-23NCvC-37-06/2025 4th Plaintiffs), their remedy is to seek reinstatement of their employment at the Industrial Court or compensation in lieu of reinstatement. There is no justification for an industrial claim, albeit, disguised as an action for “tort of unlawful interference” and the “tort of conspiracy to injure the Plaintiffs”, to be filed at the civil division of this court. [37] The 1st Plaintiff has alleged that he spoke to a few members of the Board of Trustees and also exchanged Whatsapp messages with “the Minister” and that they had allegedly denied knowledge of the 2nd Defendant invoking Clause 8 of the Trust Deed. With respect, the answer to the 1st Plaintiff’s submissions on this point is the same point highlighted in para [35] above: any challenge to the 2nd Defendant’s invocation of Clause 8 of the Trust Deed to take-over the management of the 1st Defendant (“Yayasan” in the said Clause 8) must be mounted by the Board of Trustees or by the Minister. There is neither any evidence nor any averment of the trustees or the Minister having issued any formal objection regarding the dismissal of the Plaintiffs. [38] In the circumstances, the decision of the 1st Defendant’s EXCO must, for all intents and purpose, be regarded as the decision of the 1st Defendant. Thus, the core issue is actually whether the 1st Defendant – as the employer of the Plaintiffs – had dismissed the Plaintiffs respectively without just cause or excuse. This is, with respect, an issue that is obviously for the Industrial Court to decide. [39] The judgment of the Federal Court in Fung Keong Rubber Manufacturing (M) Sdn Bhd v Lee Eng Kiat & Ors [1981] 1 MLJ GUAMAN SIVIL NO. WA-23NCvC-37-06/2025 238 remains the locus classicus on the limited common law remedy available to a dismissed employee. The Federal Court was unambiguous in ruling that damages for wrongful dismissal at common law are limited to wages in lieu of the proper notice period. An employee cannot sue for wounded feelings, loss of reputation, or any collateral loss arising from the dismissal itself – as have been pleaded by the Plaintiffs in their Amended Statement of Claim filed in this Court. [40] Fung Keong (supra) and the Court of Appeal's judgment in 7- Eleven Malaysia Sdn Bhd v Ashvine Hari Krishnan [2023] 3 MLJ 469 are binding authorities on this Court. The factual matrix in 7- Eleven v. Ashvine (supra) bears a striking resemblance to the present case: a former employee filed a civil suit claiming, inter alia, damages for constructive dismissal, the tort of emotional distress, the tort of harassment and bullying, and general and exemplary damages – all of which the Court of Appeal in 7-Eleven v. Ashvine (supra) had ordered to be struck out under O.18 r.19 Rules of Court 2012 – similar to the present application in this Court. [41] The Court of Appeal in 7-Eleven v. Ashvine (supra) held that all the other pleaded causes of action were "building blocks" for the complaint of constructive dismissal and had been "subsumed" or "merged" with it. I find that this finding of the Court of Appeal is equally applicable in the present case because the events that the Plaintiffs have pleaded in their Amended Statement of Claim to support their pleas of torts of conspiracy, are in fact about the disciplinary actions taken by the 1st Defendant, i.e. their employer, against them who are employees who defied directions given by their employer, and with the 2nd, 3rd and 4th Plaintiffs respectively defiantly refusing to attend the Domestic Enquiry to answer charges of misconduct. There was no basis to allege any conspiracy. [42] In respect of the 2nd, 3rd and 4th Plaintiffs, they could have turned up to face the Enquiry and demand to be provided with evidence of their alleged misconduct – as any innocent employee would do. Even though they failed to attend the Domestic Enquiry, they could still have pursued their allegation of constructive dismissal at the Industrial Court. Their failure to do so does not entitle them to mount this civil suit by alleging torts of conspiracy between the 1st and 2nd Defendants. [43] Looking at the Writ of Summons, the Plaintiffs did not even name those persons who were the alleged ‘conspirators’ as co-defendants in this civil suit. In their Amended Statement of Claim, their plea is that the 1st Defendant, i.e. the foundation, has allegedly conspired with the 2nd Defendant, i.e. Bank Rakyat, to injure them. What conspiracy could there possibly be between Bank Rakyat and Yayasan Bank Rakyat when Clause 8 of the Trust Deed expressly empowers the 2nd Defendant (Bank Rakyat) to assume control of the foundation that it had founded. At the heart of the Plaintiffs’ allegations, it is simply their dismissal as employees of the 1st Defendant – which they are alleging to have been wrongful. With respect, this is a claim that must be pursued at the Industrial Court, not by attempting to create triable issues in a civil court. In such a case, it is plain and obvious that a striking-out order under O.18 r.19 Rules of Court 2012 ought to be issued to prevent abuse of court process. [45] On the tort of unlawful interference, this Court finds that judgment of the House of Lords in Lonrho plc v Fayed and Others [1991] 3 All ER 303 (cited by the Plaintiffs’ learned counsel) is distinguishable and of no assistance to this Court. There, it was about a cause of action founded on unlawful interference with trade or business, and not about the dismissal of employees. [46] Before I conclude, there are two other issues raised by learned counsel for the Plaintiffs that I ought to address. [47] First, I would respectfully point out that the issuance of the ‘garden leave’ letters were in the name of the 1st Defendant, i.e. the employer of the Plaintiffs, and not by the 2nd Defendant. The fact that the letterhead of the 1st Defendant in those letters (issued to the Plaintiffs) were different from the letterhead which the Plaintiffs were used to using (when previously writing letters as employees of the 1st Defendant) does not invalidate those letters. The 1st Defendant is at liberty to change its letterhead. The salient point is that the 1st Defendant EXCO has the power to sign those letters on a letterhead of the 1st Defendant. There is no allegation of falsification of any signature. As mentioned above, the Plaintiffs, as employees of the 1st Defendant, have no locus standi to challenge the invocation of Clause 8 of the Trust Deed. Such a challenge (if any) must be mounted by the Board of Trustees or the Minister. This means that those letters are legally binding on the Plaintiffs as employees of the 1st Defendant – whether they like it or not. Their remedy is at the Industrial Court, to claim to have been dismissed without just cause or excuse. [48] With reference to the Plaintiffs’ plea that s.52(1) of the Industrial Relations Act 1967 makes it necessary for them to file their claims in a civil court instead of at the Industrial Court because the 2nd Defendant is under the Ministry of Entrepreneur Development and Cooperatives, the short answer is that they have failed to even show a reasonable cause of action against the 2nd Defendant. There is no privity of contract between them and the 2nd Defendant. They were employees of the 1st Defendant – which is a separate legal entity from the 2nd Defendant. The Plaintiffs’ reference to S.52(1) of the Industrial Relations Act 1967 is, with respect, just a ‘red herring’. The said s.52(1) obviously does not bar the Industrial Court from hearing their claims which are based on their employment contracts with the 1st Defendant. The law allows them every opportunity at the Industrial Court to rebut the 1st Defendant’s allegations of misconduct as employees of the 1st Defendant. Conclusion [49] As reiterated above, the ultimate consequential prayer by all the Plaintiffs is for damages to be paid to them. They might well have a cause of action to claims at the Industrial Court pursuant to s.20 of the Industrial Relations Act 1967 but not at this civil court. The Court of Appeal, in its judgment in 7-Eleven v Ashvine (supra), makes it abundantly clear on this point, especially in a case such as this where the 2nd, 3rd and 4th Plaintiffs had received full payment of salary for the months of May, June and July 2025 during their period of suspension. [50] In conclusion, the Plaintiffs who are employees of the 1st Defendant simply have no locus standi to challenge the 2nd Defendant’s invocation of Clause 8 of the Trust Deed. No trial is required for this obvious finding to be made by this Court. The Plaintiffs have every right to challenge their suspension and subsequent dismissal by the 1st Defendant but the correct forum would be at the Industrial Court. There is also no basis whatsoever to plead torts of conspiracy against the 2nd Defendant. This point too does not require a trial. [51] This civil suit is not just about a weak claim. It is about a claim that is obviously unsustainable in a civil court. As described by the Court of Appeal in Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam [2011] 6 MLJ 70, it is one that is conspicuously clear on the face of the plaintiff's claim, to be obviously unsustainable, and warrants a striking-out order to be made. [52] In the circumstances and in the interest of justice, the Plaintiffs should not be permitted to drag the Defendants through a trial and wasting their time as well as the court’s time. For this Court to decide otherwise would be to render O.18 r.19 Rules of Court 2012 impotent. This Court therefore decides that the Defendants’ application (Enclosure 16) to strike out the Plaintiffs’ claim ought to be allowed with costs. Date of Decision: 30th December 2025 ………………………… Gan Techiong Judicial Commissioner High Court of Malaya at Kuala Lumpur (NCvC9) Counsel for the Plaintiffs: Amelda Bt Md Din (Abu Haziq Bin Abu Talib with her) SOLICITORS FOR THE PLAINTIFFS: MESSRS AMELDA & PARTNERS Advocates & Solicitors No. 37G, Medan Bukit Indah 2, Taman Bukit Indah, 68000 AMPANG, SELANGOR. Counsel for the Defendants: Adam Thye Yong Wei SOLICITORS FOR THE DEFENDANTS: MESSRS SHEARN DELAMORE & CO Advocates & Solicitors 7th Floor, Wisma Hamzah-Kwong Hing, No.1 Leboh Ampang, 50100 KUALA LUMPUR.

7-Eleven Malaysia Sdn Bhd v Ashvine Hari Krishnan [2023] 3 MLJ

469.

Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36.

Fung Keong Rubber Manufacturing (M) Sdn Bhd v Lee Eng Kiat & Ors [1981] 1 MLJ 238.

Lonrho plc v Fayed and Others [1991] 3 All ER 30.

Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam [2011] 6 MLJ

70.

Cooperative Companies Ordinance 1948.

Trustees (Incorporation) Act 1952.

Section 20, 52(1) of the Industrial Relations Act 1967

O.18 r.19 Rules of Court 2012.