Ahmad Mahadi Bin Mohamad v Puspakom Sdn Bhd (JA-16-14-11/2024)

These are two related appeals filed by Ahmad Mahadi Bin Mohamad (“Mahadi”) and Khairulazhar Bin Tafri (“Khairulazhar”) (collectively, “the Appellants”) against the decision of the Director General of Labour (“DGL”) dated 20.11.2024, which dismissed their complaints against Puspakom Sdn Bhd (“the Respondent”) under Section 69 of the Employment Act 1955 [Act 265].

The Respondent filed applications to strike out both appeals (Enclosure 8 in Appeal No. 14 and Enclosure 7 in Appeal No. 15), pursuant to Order 2 Rule 3, Order 55 Rule 5, Order 92 Rule 4 of the Rules of Court 2012 (“ROC”) and the inherent jurisdiction of this Court, on the grounds that the appeals are incompetent, defective, a nullity and an abuse of the process of the Court.

Parties filed in collective written submissions for both appeals and the bundle of authorities and relied solely to it. This Court now deliver its decision.

The Appellants were former employees of the Respondent who resigned from their positions effective on 1.4.2024. They subsequently filed complaints with the Labour Court under Section 69 of Act 265, claiming they were forcibly compelled to resign due to disciplinary and integrity issues. They sought bonus, annual leave pay, termination and retrenchment benefits and salary in lieu of notice.

After a full hearing, the learned DGL dismissed the Appellants’ complaints on 20.11.2024. Mahadi filed his Notice of Appeal on 29.11.2024, while Khairulazhar filed his on 2.12.2024.

The Respondent complaint was that it was never served with any Notice of Appeal. It was only on 11.11.2025, nearly one year after the DGL’s Order, that the Respondent was alerted to the existence of these appeals by the Department of Labour, Johor Bahru. In the intervening period, ten separate case managements had taken place without the Respondent’s knowledge or participation.

The Records of Appeal were only filed on 11.12.2025 and served on the Respondent on 17.12.2025, approximately eleven months after the statutory deadline. No application for extension of time was ever filed by the Appellants.

The issues before this Court are –

Whether the failure to serve the Notices of Appeal on the Respondent renders the appeals incompetent;

Whether the failure to file and serve the Records of Appeal within the prescribed time is fatal to the appeals;

Whether the Appellants adopted the wrong mode of appeal; and

Whether the non-compliances can be saved by Order 1A and Order 2 Rule 1 of the ROC 2012.

The Court analysis and findings are as below. Issue (a) : Failure to serve the Notices of Appeal

Under Order 55 Rule 2 and Rule 4 of the ROC 2012, an Appellant is required to both file and serve the Notice of Appeal within fourteen days from the date of the decision. The word “shall” makes this mandatory. The DGL’s Order was delivered on 20.11.2024 and accordingly, service of the Notice of Appeal on the Respondent had to be effected by 4.12.2024.

It is not in dispute that the Appellants failed to serve their Notices of Appeal on the Respondent or its solicitors within the prescribed time, or at all. The Respondent only became aware of these appeals on 11.11.2025 through the Department of Labour. The Appellants have produced no documentary evidence of service, i.e no A.R. Registered Card, postal tracking slip, or acknowledgment receipt.

The law on this point is well established. In Tan Ting Kok v Cheong Lep Keen & Anor [1969] 1 MLJ 153, the Federal Court held that the filing and service of a notice of appeal must be read together and that a copy must be served on the respondents at the same time as filing. (see also Soh Keng Hian v American International Assurance Co Ltd [1996] 1 MLJ 191).

The Respondent has cited numerous recent authorities where appeals were struck out for far shorter delays in service. Among others is AT Engineering Solution Sdn Bhd v Rank Electronics Sdn Bhd [2024] MLJU 248 where the Court struck out an appeal for a service delay of only one month, holding the non-compliance to be “procedurally lethal” and the prejudice to the respondent irreparable. If a one-month delay was deemed fatal, the Appellants’ twelve-month delay must certainly warrant the same conclusion.

Accordingly, this Court finds that the total failure to serve the Notices of Appeal on the Respondent for nearly one year is a fundamental and fatal procedural defect that renders both appeals incompetent. Issue (b) : Failure to file the Records of Appeal within time

Under Order 55 Rule 4(1) of the ROC 2012, the Appellant is required to prepare and file the Record of Appeal within one month from the date of filing the Notice of Appeal. The statutory deadlines were 28.12.2024 for Mahadi and 2.1.2025 for Khairulazhar. The Records of Appeal were only filed on 11.12.2025 and served on 17.12.2025, a delay of approximately eleven months.

The duty to file the Record of Appeal is non-delegable and rests solely on the Appellant. In Yit Leong Crane Services Sdn Bhd v Letchumanan a/l Nadarajan [2021] MLJU 2713, the Court held that nowhere in Act 265 or the ROC 2012 does it say that the Labour Office is to prepare and file the record of appeal on behalf of the appellant. The Appellants’ attempt to shift blame to the Labour Department is therefore untenable in law.

Critically, the Appellants never filed any application for extension of time despite the staggering delay. In Yit Leong Crane Services, the Court noted that if the record of appeal could not be filed on time, the appellant could always apply to extend the time under Order 3 Rule 5(1) of the ROC 2012. The failure to do so was described as “intentional and highly regrettable”.

The Appellants also failed to send a draft index of the Record of Appeal to the Respondent’s solicitors for perusal and approval, as required under Order 55 Rule 4(4) of the ROC 2012. This deprived the Respondent of its right to verify the completeness and accuracy of the Record.

This Court finds the cumulative failure to file and serve the Records of Appeal within time, the failure to provide the draft index and the complete absence of any application for extension of time, to be fatal to these appeals. The cumulative effect of these multiple non-compliances is fatal. In Muhammad Zim bin Marintan (trading in the name and style of Zimah Enterprise) v Federal Land Development Authority [2024] MLJU 1327, the High Court held that where the Notice of Appeal, Record of Appeal, Memorandum of Appeal and all relevant cause papers were not served within the time provided under Order 55 ROC 2012, the appeal must be struck out. The Court further observed that where the appellant had consistently disregarded the numerous mandatory provisions pertaining to an appeal and had not shown any evidence of extraordinary circumstances, the preliminary objection must be upheld. Issue (c) : Wrong mode of appeal

The Respondent further submits that the Appellants have adopted the wrong mode of appeal. The right to appeal against the DGL’s decision is derived from Section 77 of the Act 265. Since the Labour Office is not a subordinate court within the meaning of the Courts of Judicature Act 1964 [Act 91], the correct procedure is under Order 55A of the ROC 2012, which requires appeals under written law to be commenced by way of originating summons supported by an affidavit, not by notice of appeal under Order 55 ROC 2012. (see Austral Amalgamated Tin Bhd v\. Abdul Wahab Kopon & Ors & Anor Appeal [2004] 2 CLJ 316 and Bimach Powerhouse Sdn Bhd v Sanizal bin Mahamad [2021] MLJU 1642). Further, the High Court in Nadushalian a/l Letchumanan dan lain-lain lwn Offimo Marketing Sdn Bhd [2023] MLJU 463 clarified that since the ROC 2012 introduced Order 55A, appeals under Section 77 of the Act 265 must comply with that provision.

The Appellants filed Notices of Appeal under Order 55 ROC 2012 instead of Originating Summonses under Order 55A ROC 2012. This is not a mere technical irregularity but a failure to invoke the correct jurisdiction of the Court. This Court finds this constitutes an additional ground rendering the appeals a nullity. Issue (d) : Whether Order 1A and Order 2 Rule 1 can save the appeals

The Appellants rely heavily on Order 1A ROC 2012 and Order 2 Rule 1 ROC 2012, contending that the delays amount to mere technical non-compliance that should not override the interests of justice.

This Court is unable to agree. The Federal Court in Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v Datuk Captain Hamzah bin Mohd Noor and another appeal [2009] 4 MLJ 149 made clear that Order 1A ROC 2012 cannot supersede a mandatory requirement of the Rules. It cannot be invoked when a party intentionally disregards the Rules, as otherwise parties would be encouraged to ignore them. The non-compliances in the present case are not accidental omissions or oversights. They are systemic failures spanning nearly twelve months, compounded by a total absence of any remedial steps.

The High Court in BHO Sdn Bhd v Wesaw Trading Sdn Bhd & Anor [2017] MLJU 1875 held that failure to serve the Notice of Appeal and Record of Appeal within the prescribed time renders the appeal incompetent and prejudicial to the Respondent, which could not be cured by an amendment or an order for costs. This Court adopts this reasoning.

Further, the authorities cited by the Appellants are all distinguishable. In Redang Paradise Vacation Sdn Bhd v. Yap Chuan Bin & Other Appeals [2017] 10 CLJ 296, the notice of appeal was served within time and the issue was merely whether the copy served was properly endorsed. In Jauhari Najjah Sdn Bhd v. Nur Zafirah Roslan [2024] CLJU 3263, the appellant was unrepresented and promptly sought leave to extend time upon engaging solicitors. In Cosway (M) Sdn. Bhd & Anor v. Gan Poh Im [2005] 1 CLJ 573, the appeal record had been filed within time and the extension application was a remedial step to correct a counsel’s error. None of these cases involve the total failure of service and the egregious twelve-month delay without any application for extension of time, as in the present case.

As for the Appellants' reliance on Tong Kim Soo v. Tirai Prospektif Sdn Bhd [2020] 3 CLJ 353 for the proposition that the Court must consider the merits of the appeal before refusing to condone non-compliance, that case is equally distinguishable. In Tong Kim Soo, the delay was merely 60 days, and critically, the appellant had filed an application for an extension of time. The Court of Appeal's direction to consider the merits arose in the context of such an application. In the present case, the Appellants never filed any application for extension of time despite a delay of nearly twelve months. There is no application before this Court upon which the merits could even be weighed. Hence, the Appellants cannot invoke the Tong Kim Soo principle when they have failed to take the very step, i.e filing an application for extension of time, that would have engaged the Court's discretion in the first place.

As for the Appellants’ contention that the appeal has merits, this Court is guided by the decision in Noor Shahirman bin Mohamad Nawawi v. Muhammad Hanif Ismail [2026] CLJU 169 where the Court held that once an appeal is found to be incompetent, the merits become purely academic and there is no necessity for the Court to decide on them. This Court agrees with this approach. Without a valid appeal properly before this Court, any discussion of the substantive merits of the DGL’s Order is rendered entirely moot.

This Court is satisfied that the Appellants’ systemic non-compliance has caused severe and irreparable prejudice to the Respondent. The DGL’s Order was delivered on 20.11.2024. When no Notice of Appeal was served within either the 14-day period under Order 55 ROC 2012 or the 30-day period under Order 55A ROC 2012, the Respondent was entitled to the legitimate expectation that the litigation had concluded. To be thrust back into litigation nearly one year later, having received no prior notification, is a gross violation of the principle of finality in litigation.

The fact that ten case management sessions took place between December 2024 and October 2025 without the Respondent’s knowledge is deeply troubling. This prolonged absence cannot be dismissed as a mere oversight. The Appellants have offered no reasonable or justifiable explanation for this gross non-compliance.

For the foregoing reasons, this Court finds that –

the Appellants’ failure to serve the Notices of Appeal renders both appeals incompetent;

the failure to file the Records of Appeal within the prescribed time, without any application for extension of time, is fatal;

the Appellants adopted the wrong mode of appeal by proceeding under Order 55 instead of Order 55A ROC 2012; and

the non-compliances cannot be saved by Order 1A or Order 2 Rule 1 of the ROC 2012 as these are fundamental defects, not mere technical irregularities.

Accordingly, this Court allowed the Respondent’s applications and ordered as follows –

both appeals, namely Civil Appeal No. : JA-16-14-11/2024 and Civil Appeal No. : JA-16-15-12/2024, are hereby struck out;

costs of RM10,000.00 (for each Appeal) to be paid by each Appellant to the Respondent, subject to the allocatur. Dated 12 February 2026 -signed-Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Appellants : : Mohammad Muzammil bin Mohammad HaiririTetuan Messrs Law Practice of Azlan Shah Solicitor for the Respondent : : Alison Goh Poi Sze Messrs Shook Lin & Bok