Bimal Pillai v 1. ) Brb Malaysia Sdn. Bhd. (BA-24NCvC-1953-09/2024)

BRB MALAYSIA SDN BHD. [COMPANY NO.: 201901026852 (1336181 -X)

BRB INTERNATIONAL B.V. [COMPANY NO.: 13020953]

PETROLIAM NASIONAL BERHAD [COMPANY NO.: 197401002911 (20076 -K)]

NIK AMRI BIN NIK MOHAMED [NRIC NO.: 650124 -03-5411]

PAUL ANTHONY TAYLOR [PASSPORT NO.: 538568220]

AMRI BIN RAZALI [NRIC NO.: 770723 -14-5133] …DEFENDANTS GROUNDS OF JUDGMENT

This judgment concerns the Originating Summons (Enclosure 1) dated 5 September 2024 and the Plaintiff’s Notice of Application (Enclosure 10) for an interim injunction dated 9 September 2024. Both Enclosure 1 and Enclosure 10 are dismissed on 10 September 2025.

Enclosure 1 was filed by the Plaintiff for the following claims and/or reliefs: a) An injunction order that the Defendants, whether by its officers, servants or agents, be refrained from continuing with:- a) The Disciplinary Action threatened against the Plaintiff pursuant to letter dated 03.08.2022; and b) The termination of the Plaintiff since 24.11.2022. b) An order that the Defendants whether by its officers, servants or agents, shall take all necessary measures immediately to:- a) Rescind and/or adjudge the instrument of termination dated 24.11.2022 void and cancel the instrument of the termination letter; and b) The Department of Occupational Safety and Health to initiate an investigation on the near-miss incident that happened on 22.09.2021. c) If the above are allowed, that there shall be endorsed on the copy of the order a notice in Form 83 of the Rules of Court 2012. d) Punitive or exemplary damages and/or compensation of 5 Million USD equivalent to RM21,900,000.00; e) An order for cost; and f) Any other relief deemed fit including those provided for the Whistleblower Protection Act 2010 and shall remain in effect pending the outcome of any appeal against such decision.

Meanwhile Enclosure 10 was filed by the Plaintiff pursuant to section 17(2) of the Whistleblower Protection Act 2010 for interim reliefs as follows: a) An injunction order that the Defendants, whether by its officers, servants or agents, be refrained from continuing with:- a) The Disciplinary Action threatened against the Plaintiff pursuant to letter dated 03.08.2022; and b) The termination of the Plaintiff since 24.11.2022. Until after judgment in this action or until further order b) If the above are allowed, that there shall be endorsed on the copy of the order a notice in Form 83 of the Rules of Court 2012. c) An order for cost; and d) Any other relief deemed fit including those provided for the Whistleblower Protection Act 2010 and shall remain in effect pending the outcome of any appeal against such decision.

This is a highly contested Originating Summons filed by the Plaintiff against the Defendants. From the time of its filing, the proceedings have been marked by numerous interlocutory applications, procedural disputes and affidavits.

It is also material to note that the Plaintiff filed Enclosure 180 and Enclosure 182, applications for production of documents and inspection, only few days before the scheduled hearing and decision of Enclosure 1 and Enclosure 10, despite the fact that parties had already completed their full written submission on those enclosures. This conduct confirms that the interlocutory applications were brought at the eleventh hour and underscore why the Court was right to first determine Enclosure 1 and Enclosure 10, which goes to the threshold of the action.

This multiplicity of applications reflects not only the contentious nature of the dispute but also attempt by the Plaintiff to reopen matters that had already been compromised through a Settlement Agreement and Memorandum of Agreement dated 6 April 2023.

The Plaintiff was employed by the 1st Defendant from 1 August 2020 until 24 November 2022 as General Manager Technology of the Research and Development Department. His employment was terminated by the 1st Defendant for his misconduct. He was paid three months’ salary in lieu of notice.

The 1st Defendant is a private limited company with its business address registered at Level 5-1, Wisma Samudra, No. 1 Jalan Kontraktor U1, 14, Hicom-Glenmarie Industrial Park, 40150 Shah Alam.

The 2nd Defendant is a private limited company which is the 1st Defendant’s parent company with its registered address at Europastraat 5, 6014 Claims Department Ittervoort, the Netherlands.

The 3rd Defendant is a public-listed company with its business address at Tower 1, Petronas Twin Towers Kuala Lumpur City Centre, 50088 Kuala Lumpur.

The 4th Defendant is the Director of the 2nd Defendant and a Representative and/or Agent of Petronas Chemicals Group Berhad (“PCG”).

The 5th Defendant is a Chairman of Safety & Health Committee and also the Interim Managing Director and/or Director of the 1st Defendant and/or the employee of the 2nd Defendant and/or the Director of the 2nd Defendant.

The 6th Defendant is the Health, Safety, Environment and Security (“HSES”) Manager of the 1st Defendant and a certified Safety Health Officer registered with the Department of Occupational Safety and Health (“DOSH”).

The Plaintiff filed a representation for unfair dismissal under section 20 (1) of the Industrial Relations Act 1967 (“IRD”). At the conciliation stage before the Industrial Relations Department, the parties entered into a Settlement Agreement and a Memorandum of Agreement dated 6 April 2023. Under the Settlement Agreement, the 1st Defendant paid the Plaintiff RM1,226,988.00 in full and final settlement of all claims arising from his termination.

Despite this, on 5 September 2024, the Plaintiff filed the present Originating Summons (Enclosure 1) supported by an Affidavit in Support affirmed on 27 August 2024, seeking to restrain the Defendants from continuing disciplinary action; an order to rescind the termination instrument; an order directing the Department of Occupational Safety and Health (“DOSH”) to reopen investigation; an order for damages and costs. The Notice of Application (Enclosure 10) was subsequently filed on 9 September 2024 for an interim injunction and was supported by the same Affidavit in Support.

The 1st Defendant (through Affidavit in Reply affirmed on 24 April 2025 (Enclosure 76) and written submission dated 13 June 2025 (Enclosure 113)) and the 3rd Defendant (through Affidavit in Reply affirmed on 25 April 2025 (Enclosure 74)) raised preliminary objections towards the injunction applications, contending that Enclosures 1 and 10 are barred by the Settlement Agreement, procedurally improper, and that the Plaintiff’s Affidavit in Support is defective and unsustainable in law.

During the hearing of Enclosure 1 and Enclosure 10, the Plaintiff also sought further directions on four (4) other enclosures which are: a) Enclosure 120 - Notice of Application for Cross-Examination of Deponent (against 1st Defendant and 3rd Defendant) dated 18 June 2025 b) Enclosure 122 - Notice of Application for Cross-Examination of Non-Deponent dated 18 June 2025 c) Enclosure 180 - Notice of Application for Inspection of Documents Referred to in the 1st Defendant’s Affidavit dated 4 September 2025 d) Enclosure 182 - Notice of Application for Inspection of Documents Referred to in the 3rd Defendant’s Affidavit dated 4 September 2025

The Plaintiff contends that: a) He was a whistleblower and a member of the Safety and Health Committee at the time of the incident. b) The 1st Defendant committed detrimental action against him contrary to section 15(2) of the Whistleblower Protection Act 2010 (“WPA”). c) His disclosures complied with section 6(1) of the Whistleblower Protection Act 2010 or the Occupational Safety and Health Act 1994 (“OSHA”). d) The Settlement Agreement cannot extinguish his statutory and tortious right. e) He has causes of action in fraud, cheating, forgery, violations of occupational safety law, and fraudulent or negligent misrepresentation. Submissions by the 1st Defendant

The 1st Defendant argues: a. The Settlement Agreement and Memorandum of Agreement conclusively resolved all disputes concerning the Plaintiff’s termination. Having accepted and retained the sum, the Plaintiff is estopped from re-litigating. The principle in Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd & Ors [2021] 9 MLJ 581 was relied upon, where the High Court held that a party who has entered into a settlement with full knowledge of the alleged claims and without reserving any right to bring further claims cannot subsequently revive the matters which have been settled. b. The Plaintiff cannot bypass the Industrial Court’s statutory jurisdiction under the Industrial Relations Act 1967. Reliance was placed on Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 2 MLJ 129, where Federal Court held that remedies for wrongful dismissal fall within the exclusive domain of Industrial Court. c. The Plaintiff’s Affidavit in Support is defective as no jurat was included to certify interpretation for a foreign deponent. In Maria Yusof v Abdullah Gendak [2015] 9 CLJ 243, the High Court rules that such a non-compliance is fatal. The same principle was applied in the case of Balakrishnan a/l Ramasundram v Sargunam a/l P Seeniappan [2021] MLJU 2875 and Pathmanathan a/l Subramaniam v Pacific & Orient Insurance Co Bhd [2023] MLJU 2359. d. The Originating Summons is an abuse of process where serious disputes of facts arise, as emphasised in Pen Apparel Sdn Bhd v Leow Chooi Khon & Ors [1995] 4 MLJ 764. Submissions by 3rd Defendant

The 3rd Defendant was never the Plaintiff’s employer. The Plaintiff’s contract was only with the 1st Defendant, the principle of separate legal entities applied in ARL Associates Sdn Bhd & Ors v Bank Kerjasama Rakyat Malaysia Bhd [2012]1 LNS 821 is dispositive.

The Code of Business Ethics (“COBE”) is a policy document, not a contractual promise.

The Plaintiff failed to comply with the Whistleblower Protection Act

His disclosure was found unsubstantiated by Department of Occupational Safety and Health. Without such finding, section 15 cannot be invoked.

The Occupational Safety and Health Act 1994 and Whistleblower Protection Act 2010 do not provide rights of action. The Federal Court in Government of Malaysia v Lim Kit Siang; United Engineers (M) Berhad v Lim Kit Siang [1988] 2 MLJ 12 held the penal provisions cannot be enforced through civil proceedings.

The defamation allegations were un-particularised and unsupported by evidence.

The Settlement Agreement and Memorandum of Agreement were recorded before the Industrial Relations Department and expressly state they are in full and final settlement of all disputes.

The Settlement Agreement and Memorandum of Agreement were voluntarily entered into and expressly recorded as full and final settlement. The Plaintiff accepted and retained the settlement sum, thus the Plaintiff is estopped from re-litigating.

The principle that a compromise puts an end to the suit between parties is well established in Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd & Ors (Supra). Plaintiff’s attempt to re-open settled matters under the guise of whistleblowers or statutory claims is an abuse of process.

The Plaintiff’s reliance on the Whistleblower Protection Act 2010 is untenable. Section 6 of the Whistleblower Protection Act 2010 requires disclosures to an enforcement agency. However, the Department of Occupational Safety and Health informed the Plaintiff his disclosure was unsubstantiated (as can be understood from paragraph 69 of the Plaintiff’s Affidavit in Reply (Enclosure 84)). Without substantiation, section 15 protection cannot arise. The Act does not create a freestanding civil right to sue for damages.

Neither the Whistleblower Protection Act 2010 nor Occupational Safety and Health Act 1994 create private causes of action. The Federal Court in Government of Malaysia v Lim Kit Siang (Supra) confirmed that penal provisions cannot be enforced by civil suits.

The Plaintiff contends that the omission of jurat is a mere irregularity which has been cured by repetition of the affidavit contents in subsequent affidavit. The Plaintiff relied on Yap Hoi Liong v Skyrich Development Sdn Bhd [2023] MLJU 3345.

I do not accept this submission. Order 41 rule 3 expressly requires the jurat to certify that where a deponent does not understand the language of the affidavit, the Commissioner for Oath must read and interpret the contents to the deponent. This requirement is mandatory, not technical. The jurat is the authentication of the affidavit itself.

The Court of Appeal in Maria Yusof v Abdullah Gendak (Supra) ruled that such non-compliance is fatal. The latter case of Balakrishnan a/l Ramasundram v Sargunam a/l P Seeniappan (Supra) and Pathmanathan a/l Subramaniam v Pacific & Orient Insurance Co Bhd (Supra) reinforce that jurat defect goes to the root of admissibility and cannot be cured retrospectively. Without a valid supporting affidavit, Enclosure 1 and Enclosure 10 are incompetent.

The Plaintiff is a foreign national and does not profess to understand Bahasa Malaysia. The omission to certify interpretation is therefore not a minor error but a fundamental defect. Unlike Yap Hoi Liong, which involved a curable irregularity, the present case involved a repeated non-compliance across multiple affidavits despite the Plaintiff being put on notice as early as 8 November 2024 in the 3rd Defendant’s Affidavit in Reply filed in respect of the 3rd Defendant’s Striking Out Application. This demonstrates disregard rather than an innocent omission.

I, therefore, hold that the Plaintiff’s Affidavit in Support is inadmissible. Without a valid supporting affidavit, Enclosure 1 and Enclosure 10 collapses at the threshold.

The Plaintiff alleged fraud, forgery, defamation and misrepresentation. These are serious factual disputes requiring pleadings, discovery and oral testimony. The Originating Summons procedure is unsuitable. In the case of Pen Apparel Sdn Bhd v Leow Chooi Khon & Ors (Supra), the High Court held that the Originating Summons must not be used where contentious factual disputes exists.

The Plaintiff urged the Court to deal with Enclosure 120, Enclosure 122, Enclosure 180 and Enclosure 182 before deciding on Enclosure 1 and Enclosure 10. Enclosure 180 and Enclosure 182 were filed on 4 September 2025 (Thursday), few days before hearing date of Enclosure 1 and Enclosure 10 on 10 September 2025 (Monday), when parties had already completed their full written submissions since 30 June 2025 and further submissions (as instructed by the Court) on 28 July 2025. Threshold issues of competency and jurisdiction must be decided first. As held in jurisdictional issues must be determined at the outset. In the Federal Court emphasised that where competency is in issue, interlocutory applications cannot proceed.

Here, Enclosure 1 and Enclosure 10 strike at the very root of the proceedings. If the Originating Summons itself is incompetent, subsequent interlocutory application are moot. It is therefore proper for this court to decide Enclosure 1 and Enclosure 10 first, reserving the later enclosures only if they remain relevant thereafter.

For the reasons set out above: a. The preliminary objections are allowed. b. The Plaintiff’s Originating Summons (Enclosure 1) and Notice of Application (Enclosure 10) are struck out in limine. c. Enclosure 120, Enclosure 122, Enclosure 180 and Enclosure 182 are reserved, to be addressed only if relevant thereafter. d. Costs of RM10,000.00 are awarded to the 1st Defendant and 3rd Defendant respectively, subject to allocatur. Dated 12 November 2025 -sgd-DATO’ ANITA BINTI HARUN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Plaintiff : Loh Yi Qing & Nurul Athirah Binti Hairol Nizal (Messrs Qing Chambers) For the 1st Defendant : Joshua Teoh Beni Chris & Anna Tan Ling Er (Messrs Skrine) For the 3rd Defendant : Muhammad Faisal Moideen & Shaagita Rajenthiran (Messrs Moideen & Max)