Aumada Energy & Technologies (M) Sdn Bhd v Kenny Benard Saw (WA-24-71-07/2024)

The plaintiff seeks to be granted an abridgement of time to file and submit a Notice of Appeal against the Industrial Court Awad No. 495 of 2024 dated 03.04.2024 allegedly received by the plaintiff on 30.04.2024 in the Industrial Court Case No.: 55 11/4-613/22 within 7 days from the date the Court's order.

Cost and other prayers. [2] On 28.01.2025, after considering all the cause papers and respective written submissions of the parties on a balance of 60 probabilities, I hold that the plaintiff failed to discharge his burden to establish his case. Accordingly, I dismissed the plaintiff’s application with costs of RM2,000.00 to be paid within 30 days from the date of this Order. 65 2.1 Dissatisfied, the plaintiff has filed this appeal, and my reasons are as follows: BRIEF FACTS [3] On 30.7.2021, the defendant, an employee of the plaintiff, had left 70 the Plaintiff’s employment grounded on constructive dismissal. The hearing went on at the Industrial Court, and the Industrial Court Awad No. 495 of 2024 (IC Award) was then delivered.

3.1 On 30.04.2024, the plaintiff's solicitors received the Industrial Court Awad No. 495 of 2024. 75 S/N 7nGnZqTYqUW6fm1twUAfxg

3.2 On 15.07.2024, the Plaintiff, who was not satisfied with the said award, applied for Judicial Review (JR) in the Kuala Lumpur High Court Application No WA-25-284-07/2024 seeking a certiorari to quash the decision in the IC Award.

3.3 On 02.09.2024:

The Plaintiff’s solicitor admitted that it was only after observing the High Court's decision in the case of Asian Pottery (Penang) Sdn Bhd v Tan Siew Yong [2024] 5 MLRH 508, HC that the plaintiff's solicitors realised they must file a Notice of Appeal under the new section 33C of the Industrial 85 Relations Act 1967 to challenge the impugned IC award.

The JR’s application was eventually withdrawn and was struck out by this court.

3.4 On 24.03.2025, approximately six (6) months after the JR Application was struck off, the plaintiff filed the present Originating 90 Summons (OS) seeking an abridgement of time. THE PARTIES ARGUMENTS [4] In arriving at my decision, I have duly considered the parties' arguments as follows: 95 The Plaintiff’s arguments:

4.1 The plaintiff filed this OS under O.3 r.5 Rules of Court 2012 (RC 2012) and/or the inherent jurisdiction of this court, seeking an 100 abridgement of time to file a Notice of Appeal, to file and serve the notice of appeal for an award no 495 Tahun 2024 within 7 days from the date the court's order. S/N 7nGnZqTYqUW6fm1twUAfxg

4.2 The reason offered for the application:

The failure to promptly file the Notice of Appeal within 14 days 105 of the decision is due to a misunderstanding of law and was never intentional.

Defendant will not suffer any prejudice at all, which costs cannot compensate as a result of this application, and this appeal has strong merits. 110 Basis of Application [5] Citing section 33C of the Industrial Relations Act 1967:

The learned counsel submitted that it is clear that in dealing with such appeals, the High Court shall have powers as if the 115 appeal is from the Sessions Court and, therefore, O.3 r.5 RC 2012 applies.

Chia Wai Cheong v. Koh Ming Kwang [2021] 2 MLRH 313, HC, held that when deciding on an abridgement of time, the court must consider the bigger picture of fairness and the 120 balance of interest of all parties involved where the court allowed an extension of 6 weeks to file the notice of appeal.

5.1 In the present case:

The period 15.05.2024 (fourteen (14) days from the date the 125 award was received) till 18.07.2024 is around 9 weeks only. The plaintiff believed at the time that a challenge on the IC Award could be made via a judicial review, as it had always been the case, only to realise that it was in error. The solicitor in charge of the case was then instructed to withdraw the JR 130 Application. S/N 7nGnZqTYqUW6fm1twUAfxg

The learned counsel further submitted that this Court has the discretion to extend the time.

Citing in support O.2 r.1(2) RC 2012, that the overriding 135 objective is enabling the court to deal with cases justly.

O.3 r.5(1) RC 2012 provides that the court may order to extend the period within which a person is required or authorised to do any act in any proceedings.

While O. 92 r.4 RC 2012 provides the court's inherent powers. 140 Circumstances, prejudice and merits of appeal [6] The plaintiff further argued that:

The failure to file a Notice of Appeal is justifiable in the circumstances, and the delay is not inordinate.

The Court was asked to consider that the JR Application was filed within the prescribed time.

The plaintiff’s solicitor took the position that there was no Court of Appeal decision on this issue to give guidance to them at the material time.

This application would not prejudice the defendant. The Industrial Court erred in the law and facts in the impugned IC Award. [7] Power of court to extend time 155 The learned counsel also argued that:

The IRA 1967 provides that the High Court would treat any appeal under section 33C (3) as an appeal from the Sessions Court under O. 55 RC 2012. S/N 7nGnZqTYqUW6fm1twUAfxg

It is trite law that the court has the power to extend the time to 160 file the Notice of Appeal, and O.3 r.5 RC 2012 applies. Allowing the abridgement of time is not unjust, as an employee and an employer unhappy with an award can apply for an extension.

The application for extension was filed shortly after the 165 plaintiff's counsel became aware of the High Court's decision on this issue. The Defendant will not suffer any prejudice as a result of an extension that cannot be cured by costs.

The non-filling of the notice of appeal was due to a genuine mistake in good faith, and the plaintiff's application here ought 170 to be allowed with costs. The Defendant’s arguments: [8] In a nutshell:

The defendant argued:

After being dismissed, the defendant formally filed a complaint with the Industrial Relations Department (IRD) under s.20 of the IRA, 1967, where the Director General of the Industrial Department had referred the dispute to the Industrial Court (IC) on 4.3.2022.

On 16.11.2023, the dispute was canvassed and ventilated at the IC, where it delivered its findings in Award No.495 of 2024.

The impugned award was duly received by the plaintiff on 30.04.2024.

During the proceedings before the IC leading to the impugned award, the parliament incorporated into the IRA 1967 the new Section 33C on the appeal process to challenge an IC Award on 01.01.2021: S/N 7nGnZqTYqUW6fm1twUAfxg

Under section 33C, if the plaintiff is unsatisfied with the 190 impugned IC Award, an appeal to the High Court must be lodged within 14 days from 30.04.2024 (award received).

(ii) The last date to file the appeal is 14.5.2024, but no appeal has been filed against the Award by the plaintiff.

(iii) This transpired while section 33C was in force since 195 01.01.2021.

(iv) To claim ignorance of the law in such circumstances is not tenable.

On 18.07.2024, the Judicial Review application was filed in 200 court to challenge the IC Award under O.53 RC 2012, but about a month later, on 19.08.2024, it was withdrawn because the plaintiff claimed they were confused about section 33C legal position until they were illuminated in Asian Pottery (Penang) Sdn Bhd v Tan Siew Yong [2024] 5 MLRH 508, 205 HC.

The defendant alluded to the fact that Asian Pottery (Penang) Sdn Bhd v Tan Siew Yong [2024] 5 MLRH 508, HC specifically referred to Aneka Retail (M) Sdn Bhd v 210 Mahkamah Perusahaan Malaysia & Ors [2023] 1 ILR 391, HC, which was available in January 2023, required the filing of an appeal under s.33C to challenge an IC Award.

The defendant took the position that the Court does not have 215 the power to abridge the time to file an appeal as prescribed in s.33C, which did not provide for an extension of the specified time limit to avoid delay and to bring finality to the IC cases. The IRA 1967 is a social legislation intended to look after parties' interests before the IC as observed in Hoh Kiang 220 Ngan v Mahkamah Perusahaan Malaysia & Anor [1996] 4 S/N 7nGnZqTYqUW6fm1twUAfxg CLJ 687, FC the Act is a piece of beneficent social legislation by which Parliament intends the prompt resolution of disputes between employers and their workmen. 225

The defendant also cited PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and Other Appeal (2021) 2 CL144, FC that had observed that social legislation is a set of laws to regulate the relationship between a weaker class of persons and a stronger class, given that the latter has the 230 upper hand in dealing with the former.

In support of his contentions, the defendant also cited:

Goldhill Fortune Sdn. Bhd. v Pemungut Duti Setem [2018] 1 LNS 1579, HC observed that in dealing with an 235 extension of time moved under Order 3 r 5(1) & (2) Rules of Court 2012 to file an appeal under s.39(1) of the Stamp Duty Act 1949, period of three months as a limitation would have been inserted if an indefinite period were intended to be given. The period of three months is to 240 prevent stale claims.

Mamat bin Hassan & Anor v Siti Khatijah bte Awang Hamat & Ors [1997] 1 CLJ SUPP 481; [1996] that under O. 3 r. 5(1) of the RHC 1980, the court has the power to abridge time to file a notice of appeal only if the right of 245 appeal is provided for by the RHC 1980. In other words, the court is not empowered under O. 3 r.5(1) of the RHC 1980 to extend the time limited by any other written law.

V Sinnathamboo v Minister of Labour & Manpower [1981] 1 MLJ 251, HC observed that the one-month time 250 limit prescribed under section 20(1) of the revised Act was a mandatory provision, and failure to comply was fatal to a workman who was not a member of a trade union. That was the most natural interpretation of section 20(1), considering the precise words used by the Parliament. 255 S/N 7nGnZqTYqUW6fm1twUAfxg

In the circumstances:

The defendant argued that the powers under O.3 r.5 and 0.92 r.4 RC 2012 cannot be invoked to support this OS and should be dismissed in limine.

I agree when the learned counsel submitted that the alleged merits in the appeal are not a relevant consideration at this juncture and the nature of this OS. The plaintiff asserted that there was no merit in the appeal, regardless. A perusal of the impugned IC Award 265 will show that the learned Chairman of the IC had addressed the evidence presented and the applicable case laws, mainly on constructive dismissal appropriately. The defendant alluded the following facts:

At paragraphs 27 and 28 in the affidavit in support, 270 the plaintiff alleged that the defendant did not provide evidence of attempts to get a job as a sales manager after 30.07.2021 on the basis that the sales manager job was purportedly a sought-after job and could have got a higher salary.

(ii) The learned counsel submitted that these are speculations and that there is no burden on the defendant to prove the matters alleged by the plaintiff.

(iii) It was further submitted that the sole witness for the 280 plaintiff company agreed in the IC that the defendant was the sales agent for the plaintiff company that had brought in sales for the five projects that were the subject matter of the proceedings.

(iv) It was not disputed at the IC that based on the 285 employment contract terms, commercial sales would confer a 2% commission to the sales agent that brings in the said commercial sales. S/N 7nGnZqTYqUW6fm1twUAfxg

This was confirmed by the plaintiff company's solicitors at the Industrial Court (line 35-36 of page 290 345 of L.2).

(vi) The plaintiff company, as the defendant's employer, agreed in the Industrial Court, through its sole witness, that the defendant's salary includes the defendant's commissions (lines 5 to 17 on page 358 295 L.2).

(vii) The Industrial Court had correctly found that the plaintiff company's action and conduct in not paying the defendant his outstanding commissions of RM97,224.54 represented the intention of the plaintiff 300 company not to be further bound by the terms of the defendant's employment contract with the plaintiff company and that the plaintiff company had breached the employment contract.

(viii) Therefore, there was a 'constructive dismissal'. 305 Surprisingly, the plaintiff company is now submitting for an extension of time that they dispute/deny the existence of outstanding commissions (paragraph 20(16) on page 7 of Enclosure 7).

(ix) The plaintiff, during the proceedings at the IC, had 310 taken the contradictory position that the commissions amounting to RM97,224.54 for two projects had already been paid and that it was for the defendant to prove that his commissions for the other three projects had not been paid.

Based on the plaintiff company's inconsistent position, there are no merits whatsoever for any appeal that the plaintiff company intend to lodge. The Plaintiff company's ever-changing position regarding the outstanding commissions due to the defendant is 320 simply because there is no defence to the defendant's claim. Therefore, the defendant asked that this misleading and unfounded application for an extension of time be dismissed with costs 325 S/N 7nGnZqTYqUW6fm1twUAfxg THE LAW [9] The Industrial Relations (Amendment) Act 2020 which the new s.33C came into force on 01.01.2021, reads as follows: “33C. Appeal against an award to the High Court.

If any person is dissatisfied with an award of the Court made under section 30 such person may appeal to the High Court within fourteen days from the date of receipt of the award.

The procedure in an appeal to the High Court shall be the procedure in the Rules of Court 2012 [P.U. (A) 205/2012] for an appeal from a Sessions Court 335 with such modifications as the circumstances may require.

In dealing with such appeals, the High Court shall have like powers as if the appeal is from the Sessions Court.”

1 The Court of Appeal in Osram Opto Semiconductors (M) Sdn 340 Bhd v Ooi Mei Chen & Anor [2024] 6 CLJ 716 said this: “[15] Perhaps the discernible change has gained momentum with the passage of time as in there is nothing more powerful than an idea whose time has come, as Victor Hugo would say. The Industrial Relations (Amendment) Act 2020 which the new s 33C came into force on 1 January 2021, reads as 345 follows: … [16] The diffused distinction between a review and an appeal has now been discarded altogether with respect to challenging an award of the Industrial Court which since its coming into force is by way of an appeal as if it is an 350 appeal from the Sessions Court with the result that the Court of Appeal would be the apex court.” FINDINGS OF THIS COURT [10] All things considered:

1 I have duly considered the cause papers and the submissions by the parties, and the plaintiff’s arguments do not convince me. I find this OS to be unsustainable:

I agree with the submission of the learned counsel for the defendant that s.33C IRA, does not provide for an extension 360 of the specified time limit, to avoid delay and to bring finality to S/N 7nGnZqTYqUW6fm1twUAfxg the IC cases. The court is not empowered under O.3 r.5(1) of the RC 2012 to extend the time limited by the said s.33C IRA.

The plaintiff averred that the word “may” in the amended s.33C IRA 1967 is confusing. It was only after reading Asian Pottery 365 (Penang) Sdn Bhd v Tan Siew Yong (supra) that the plaintiff realised that they had to file a notice of appeal, which was already out of time. The provision makes it mandatory, and the plaintiff presents no plausible, legitimate and compelling circumstances to justify the incompliance appropriately for the 370 Court to exercise its inherent jurisdiction. Ignorance of the law is never a valid foundation to support this OS.

10.2 The law is trite, and I am guided by the following:

An extension of time is entirely at the court's discretion: Order 375 3 r 5 RC 2012 and Ong Guan Teck & Ors v Hijjas [1982] 1 MLJ 105, HC.

An appellant must give a reasonable and acceptable explanation for the delay: Gan Hay Chong v Siow Kian Yuh & Anor [1975] 2 MLJ 129, FC, which held that the mistake of 380 the solicitor was not sufficient ground for allowing an extension of time.

In Tractors Malaysia Bhd v Southern Estates Sdn Bhd [1984] 1 CLJ 154, FC, it was held that a mistake of the appellant’s solicitors on the point of law is not an acceptable 385 ground for an extension of time to file a notice of appeal.

Ignorance of procedural law is not an acceptable explanation: Ahmad bin Yahaya & Anor v Ahmad bin Sulaiman [1972] 2 MLJ 109, HC. S/N 7nGnZqTYqUW6fm1twUAfxg

In Gurdev Kaur Bhag Singh v BSN Commercial Bank (M) 390 Bhd (dahulunya dikenali sebagai Bank Buruh (Malaysia) Bhd) [2003] 2 AMR 110; [2003] 1 CLJ 429, CA, it was decided that it was “settled law” that a solicitor’s mistake was not an acceptable explanation for an extension of time application and the appellant “can always seek remedy 395 elsewhere if she has any grievance against her former solicitor. CONCLUSION [11] By and large, on the balance of probabilities, I find the plaintiff has 400 failed to meet the legal requirements to prove the merits of this OS. Accordingly, I dismissed it with the cost of RM2,000.00 to be paid within 30 days from the date of this order. Dated 24.02.2025. 405 HAYATUL AKMAL ABDUL AZIZ JUDGE 410 HIGH COURT OF MALAYA KUALA LUMPUR Parties: 415 Devan Narayanan Raman Messrs. Devan & Associates for the Plaintiff Paari Perumal together with Puthan Perumal 420 Messrs Chai & Partners for the Defendant S/N 7nGnZqTYqUW6fm1twUAfxg