LIM Poh Lin v 1. ) Mahkamah Perusahaan Malaysia (WA-25-339-12/2017)

1.

HERBALIFE PRODUCTS MALAYSIA SDN BHD … RESPONDEN-RESPONDEN 2 Grounds of Decision Azizah Nawawi, J: Application [1] This is the Applicant’s application for an order of Certiorari to quash the Award No. 1267 of 2017, dated 15.9.2017 and for consequential orders. [2] The grounds of the application are that the Industrial Court had erred in law and in fact, failed to relevant consideration and made an unreasonable decision when it made a finding that the Company did not force the Applicant to resign. [3] Having considered the application and the submission of the parties, this court had dismissed the application with costs. The Salient Facts [4] The Applicant (“Claimant”) was employed by the 2nd Respondent (“Company”) on 18.9.2012 as a Corporate Manager. She was confirmed after six (6) months’ probation by a letter dated 17.3.2013. [5] The Claimant claimed that without any prior warning, on 16.8.2013, she was placed under a Performance Improvement Plan (“PIP”) for a period of two (2) months. 3 [6] The Company takes the position that the Claimant was under performing in four (4) areas:

Communication and interpersonal skills;

(ii) Distributor/customer focus;

(iii) Achiever; and

(iv) Passion and teamwork. [7] The Claimant was expected to improve on those areas and there were two (2) reviews scheduled on 16.9.2013 and 15.10.2013. [8] Before the completion of the 2nd scheduled review, the Claimant was summoned to the Human Resources Office on 9.10.2013 for a review of the PIP. However, the Claimant claimed that she was forced to sign a letter of resignation, which was prepared by the Company. [9] The Company takes the position that the Claimant had voluntarily resigned, and that there was no undue pressure, intimidation, threat of victimization placed on the Claimant. [10] The Claimant then filed her representation under Section 20 of the Industrial Relations Act 1967 to the Industrial Relations Department and the representation was referred to the 1st Respondent for an adjudication. [11] The 1st Respondent (the “Industrial Court”) had dismissed the Claimant’s claim through the Award dated 15.9.2017. Dissatisfied 4 with the decision made by the Industrial Court, the Claimant filed an application for judicial review on 21.12.2017. The Findings of the Court [12] The Federal Court in Ranjit Kaur S Gopal Singh v. Hotel Excelsior

(M) Sdn Bhd [2010] 8 CLJ 629 has set out the function of the Court in an application for Judicial Review and the correct test to be applied in reviewing findings of fact made by the Industrial Court, to be as follows: “[15] …… Historically, judicial review was only concerned with the decision making process where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroad into this field of administrative law. Rama Chandran is the mother of all those cases. The Federal Court in a landmark decision has held that the decision of inferior tribunal may be reviewed on the grounds of "illegality", "irrationality" and possibly "proportionality" which permits the courts to scrutinize the decision not only for process but also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds. 5 [16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts' liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Peransang Selangor Bhd v. Zaid Mohd Noh [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate. [17] The Federal Court, in Petroliam Nasional Bhd v. Nik Ramli Nik Hassan [2003] 4 CLJ 625, again held that the reviewing court may scrutinise a decision on its merits but only in the most appropriate of cases and not every case is amenable to the Rama Chandran approach. Further, it was held that a reviewing judge ought not to disturb findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to the same conclusion. [18] The Court of Appeal has in a number of cases held that where finding of facts by the Industrial 6 Court are based on the credibility of witnesses, those findings should not be reviewed (see William Jacks & Co (M) Sdn Bhd v. S Balasingam [1997] 3 CLJ 235, National Union of Plantation Workers v. Kumpulan Jerai Sdn Bhd (Rengam) [2001] 1 CLJ 681, Quah Swee Khoon v. Sime Darby Bhd [2001] 1 CLJ 9, Colgate Palmolive (M) Sdn Bhd v. Yap Kok Foong & Another [2001] 3 CLJ 9. However, there are exceptions to this restrictive principle where:

reliance upon an erroneous factual conclusion may itself offend against the principle of legality and rationality, or

there is no evidence to support the conclusion reached. (See Swedish Motor Assemblies Sdn Bhd v. Hj. Md Ison Baba [1998] 3 CLJ 288 ]. [19] It is clear from the above authorities that the scope and ambit of Rama Chandran had been clearly explained and clarified. Decided cases cited above have also clearly established that where the facts do not support the conclusion arrived at by the Industrial Court, or where the findings of the Industrial Court had been arrived at by taking into consideration irrelevant matters, and had failed to consider relevant matters into 7 consideration, such findings are always amendable to judicial review”. (emphasis added) [13] Before the Industrial Court, the Claimant contends that her resignation from the Company was forced upon her by the General Manager and that she was dismissed without just cause or excuse. The Claimant claimed that under the threat of dismissal, the Company forced her to resign from the Company on 9.10.2013. [14] However, the Company takes the position that the Claimant had resigned voluntarily on her own, and that there was no pressure, intimidation, threat or victimization placed on her. The Company further averred that the Claimant was paid all her monetary dues after the Company accepted her resignation. [15] In the Award, the Industrial Court has identified the following issues:

whether the Claimant was forced to tender her resignation by the Company or she had resigned voluntarily; and

(ii) If the answer is in the negative, then there was no justification for the Claimant to claim that she was dismissed without just cause or excuse;

(iii) If the answer is in the affirmative, then next question to be asked is whether the alleged dismissal was with or without just cause or excuse. 8 [16] After hearing the evidence and the submission of the parties, the Industrial Court has made the following finding of fact: “In the present case the court is of the opinion that the Claimant has signed the resignation letter voluntarily and not because of the threat being sack. As stated in the principle of the above authority, the actual causation is not so much the sacking but other accepted consideration in the state of mind of the resigning employee. These is no evidence to show that the Claimant was forced to resign or she will be dismissed other than the Claimant’s word which is not supported by other form of evidence. In fact, the Claimant’s behaviour is not consistent with what she claimed that happen to her. The Claimant states that she signed the resignation letter vehemently protested at the bullying and strong-arm tactics of both the General Manager and the Human Resources Manager. This Court finds it hard to believe where despite the alleged tactics by the Company the Claimant requested to stay until end of year 2013 and when rejected she requested to stay until of October 2013 which again rejected by the Company. Subsequently after the rejection the Claimant sent an email (COB 3) to COW1 and COW2 on 9.10.2013 at 7.30 pm requesting the cut off to be extended to another hour. 9 In this email the Claimant did not put it on record on how she claimed to have been treated but proceeded to provided breakdown of outstanding work in a calm, logical manner. Is this how an employee who have been force to resign would react. There is nothing to indicate there was a threat, force or bullying by the Company in relation to the signing of the said resignation letter. In arriving at the decision the Court has perused all the evidence produced and also the demeanor of the witness. The Court observed that the Claimant tend to be aggressive when she was provoked and disagree to something. She can easily lost her temper and raised her voice as demonstrated during cross examination. This scenario will be different if the Claimant is a timid or possessive cooperative participant. Under those circumstances Claimant’s version that she was forced to sign the resignation letter is doubtful and must be taken cautiously.” (emphasis added) [17] Having considered the application and the Award, I am of the considered opinion that the Industrial Court has made a finding of facts which this court should not readily interfere with. The Industrial Court had considered the evidence of both sides and had preferred the version of the Company instead of the Applicant. The Industrial Court had seen and heard the evidence of the Claimant, and had chosen not to believe her version of what had transpired on the 10

9.10.2013. In Menara Pan Global Sdn Bhd v. Arokianathan a/l Sivapiragasam [2006] 3 MLJ 49, the Court of Appeal held that: “(vi) the High Court will not interfere with the findings of facts by the Industrial Court unless the same are completely unsupported by evidence and further, will not interfere merely because it may come to a different conclusions of fact on the basis of the same evidence; weighing and assessing the evidence of the witnesses is the function of the Industrial Court and not that of the High Court.” [18] In the premise, I find that the Industrial Court had acted in accordance with the law and I find that there is no merit in the application and the same is dismissed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 3rd January 2019 11 For the Applicant : Remi Pereira Messrs Remi & Diana Dawson Selangor Darul Ehsan For the 2nd Respondent : H C Yong Messrs Zaid Ibrahim & Co Kuala Lumpur Cases referred:

Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8

Menara Pan Global Sdn Bhd v. Arokianathan a/l Sivapiragasam [2006] 3 MLJ 49.