Mat Saat Bin Ahmad & 16 yang Lain v Linfox Transport Sdn. Bhd. (W-01(A)-207-03/2018)

LINFOX TRANSPORT SDN. BHD … RESPONDEN-

MAHKAMAH PERUSAHAAN MALAYSIA RESPONDEN (Di dalam perkara Permohonan Semakan Kehakiman No. WA-25-208- 07/2015 dalam Mahkamah Tinggi Malaya Di Kuala Lumpur) Dalam perkara suatu permohonan untuk kebenaran/perintah-perintah certiorari dan madamus berkenaan Awad No:422 tahun 2015 bertarikh 13.4.2015 yang diterima pada 17.4.2015 dibuat dalam kes Mahkamah Perusahaan No.11(1)/4- 1233/07; Dan Dalam perkara Seksyen 20 Akta Perhubungan Perusahaan, 1967. Dan Dalam perkara mengenai Seksyen 44(1) Akta Relief Spesifik, 1950. 2 Dan Dalam perkara mengenai Jadual 1, Akta Mahkamah Kehakiman, 1964. Dan Dalam perkara Aturan 53, Kaedah-Kadah Mahkamah 2012. Dan Dalam perkara Aturan 1 A(1) dan Aturan 2(1)(2)(3) Kaedah-Kaedah Mahkamah 2012. Antara Mat Saat Bin Ahmad & 16 Yang Lain … Pemohon-pemohon Dan

Linfox Transport Sdn. Bhd.

Mahkamah Perusahaan Malaysia …Responden-responden CORAM: KAMARDIN BIN HASHIM, HMR HADHARIAH BINTI SYED ISMAIL, HMR LEE HENG CHEONG, HMR 3 GROUNDS OF JUDGMENT Introduction [1] This an appeal by the Appellants/Applicants’ against the learned High Court Judge’s [“the learned HCJ”] decision dismissing the Appellants/Applicants’ application seeking to quash the award of the Industrial Court No. 422 of 2015 dated 13.4.2015. [2] For ease of reference, parties will be referred to as they were in the proceedings before the High Court. Background [3] The Applicants were the former employees of the 1st Respondent and were employed as drivers to transport gas from Malaysian Oxygen to various places in West Malaysia. The Applicants were paid allowances per trip in accordance with the distance they travel outstation based on the 'Manual System'. [4] In November 2006, the Manual System was changed to a computerized system called 'LINDIZ'. As a result of this change, a dispute arose between the Applicants and the 1 s t Respondent. [5] On 4.1.2007, about 40 to 50 of the 1st Respondent’s employees [including the Applicants) gathered at Shapadu Rest Area refusing to resume work. Despite several 4 approaches by the 1 s t Resp ond ent , the employees refused to report back to work, resulting in a deadlock. [6] When the employees continued to refuse to report for duty, the 1 s t Res po nde nt started to issue termination letters dated 8.1.2007. The termination letter, inter alia, states as follows: "You have categorically refused to perform work effective from 4.10.2007 despite repeated request and appeals by ... for you to commence work, however you and others still refused to commence work thus causing an enormous failure due to your action. Your concerted act of illegal gathering is also deemed as an act of illegal strike. This act of defiance by you and others is viewed very seriously by management and under the said circumstances, we have no alternative but to dismiss you with immediate effect.” [7] Thereafter, 47 employees appealed to the 1 s t Resp on de nt , and their appeals were accepted by the 1 s t Respo ndent . [8] The Applicants then filed a representation under Section 20 of the Industrial Relations Act 1967 to the Industrial Relations Department and their representation was referred to the Industrial Court for an adjudication by the Minister under section 20(3) of the Industrial Relations Act 1967. 5 1 [9] After a full trial, the Industrial Court had dismissed the Applicants' claims. The Applicants then filed an application to the High Court, to quash the decision of the Industrial Court, was similarly dismissed. The Findings of the High Court [10] The learned HCJ found that the only issue raised by the Applicants is that they have been dismissed by the 1st Respondent on 4.1.2007 but the Industrial Court made a finding of fact that they were not dismissed on 4.1.2007. [11] The learned HCJ also found that the Industrial Court did not made an error in law when it decided that the date of dismissal is different from that in the Minister's reference and that the Applicants’ dismissal was reasonable as they were involved in an illegal strike. [12] Further the learned HCJ found that the Minister's reference to the Industrial Court is on the issue of dismissal that is whether the Applicants were dismissed by the 1st Respondent with just cause and excuse and not on the actual date of the dismissal of the Applicants. The Law [13] It is trite law that the specific finding of facts by the learned HCJ as a trier of facts should not be disturbed by an appellate court such as this Court herein unless that finding was plainly wrong: 6 See Ming Holdings (M) Sdn Bhd v Tuan Syed Azahari Noh Shahabudin & Anor [2010] 4 MLJ 577; [2010] 6 CLJ 857 (FC) paras 41–48; [14] We were mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance. In the case of Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97 where the Court of Appeal held as follows: “ ….. an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence.” [Emphasis added] [15] Reference is also made to the decision of the Federal Court in Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309 where the Federal Court held that the test of "insufficient judicial appreciation of evidence" adopted by the Court of Appeal was in relation to the process of determining whether or not the trial court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence. [16] In Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629, the Federal Court set out the role of the Court in an application for Judicial Review and the correct test to be applied in reviewing the findings of fact made by the Industrial Court, to be as follows: 7 "[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. [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 8 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 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 [2001J 3 CLJ 9. However, there are exceptions to this restrictive principle where:

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

(b) 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 9 had been arrived at by taking into consideration irrelevant matters, and had failed to consider relevant matters into consideration, such findings are always amendable to judicial review". (Emphasis added) [17] In Booi Kim Lee v Menteri Sumber Manusia & Anor [1999] 3 MLJ 515, Justice KC Vohrah adopted Lord Diplock's classification of grounds of judicial review in the case of Council of Civil Service Unions & Ors V. Minister for the Civil Service [1985] AC 374 where Lord Diplock speaking for the House of Lords, said that the three grounds are Illegality, irrationality and procedural impropriety. Findings of this Court [18] Bearing in mind the above principles, we will now deal with the Applicants’ appeal. [19] The Applicants contended that the Industrial Court has committed a serious error of law and/or fact and acted beyond its statutory jurisdiction when it stated that their dismissal date is 8.1.2007 and not 4.1.2007, as stated by the Minister in the reference for adjudication before the Industrial Court. [20] The Applicants contended that since the Industrial Court's finding in respect of the date of their dismissal is different from that of the Minister's reference, the Industrial Court thus has no jurisdiction to 10 adjudicate on the complaint which is not the subject matter of the Minister's reference under section 20(3) of the Industrial Relations Act 1967, relying on the case Dreamland Corporation

(M) Sdn Bhd v. Cheong Chin Sooi & Anor [1988] 1 MLJ 111. [21] The pertinent portion of the judgment of Dreamland Corporation case supra that was relied by the Applicants reads as follows: “… However neither that Court nor the High Court were correct in amending the date of dismissal and in awarding compensation as a consequence of such amended date, both matters outside their jurisdiction in an enquiry under s. 20(3) of the Industrial Relations Act.” [22] The issue in Dreamland Corporation case supra can be distinguished from the instant appeal. In Dreamland Corporation case supra, the Industrial Court heard the witnesses and granted the following award: "1. I find that there is evidence that the Claimant had talked about the low salaries and low increment to the staff in the Company, and this to my mind brings about a bad effect among the staff concerned, so I uphold the dismissal of the Claimant by the Company.

The Claimant had committed a misconduct and before such dismissal took effect the Company did not hold any inquiry at all. Though I uphold the order of dismissal of the Claimant the effective date of such dismissal takes effect on the last date of the hearing; therefore, the Claimant is entitled to 11 back wages from the date of dismissal 23 February 1984 till 28 April 1986, i.e., 26 months and 4 days at the rate of RM2,400 a month... RM62,720.

The Company is to pay this sum within one (1) month from the date of this Award after tax clearance." [Emphasis A dded] [23] The above Award was referred under section 33A of the Industrial Relations Act 1967 to the High Court on the following 2 questions of law: [i] Does the Industrial Court have jurisdiction to award compensation to a workman whose dismissal has been upheld by the Court; and [ii] Does the Industrial Court have jurisdiction to amend the date of dismissal of the workman so that the workman is deemed to be in employment until the date of the award and thereby become entitled to back wages? [24] The Supreme Court in Dreamland Corporation case supra in answering the 2nd question of law above, held that the Industrial Court and the High Court which affirmed the decision of the Industrial Court, have no jurisdiction to amend the date of dismissal of the employee by the employer on 23.2.1984 to the last date of the hearing in the Industrial Court, ie 28.4.1986. The actual date of dismissal cannot be amended to any other date in order to grant the employee back wages. 12 [25] Thus in the Dreamland Corporation case supra, the issue of the date in the 2nd question of law referred to the High Court, is whether the Industrial Court can change the actual date of dismissal to another date, and in that case, to the last date of hearing before the Industrial Court. The Supreme Court held that both the Industrial Court and the High Court have no jurisdiction to change the date of dismissal and thereafter deemed that the employee is still in the employment during the extended period. [26] We are in agreement with the learned HCJ that the pertinent case to consider is Shafie bin Abd Rahman v Petroliam Nasional Berhad [2010] MLJU 1290 where Aziah Ali J. [as she then was] held as follows: "[8] It is the Ministerial reference and not the Statement of Case that determines the Industrial Court's Jurisdiction. In the present case, what is the dispute referred by the Minister to the Industrial Court? The subject matter of reference as reflected in the Award is the dismissal of the Applicant by the 1st Respondent. That is the dispute referred to the Industrial Court for adjudication and it is clearly within the scope of the Industrial Court's jurisdiction. The date of dismissal is a matter for determination by the Industrial Court. [9] The Applicant herein claims constructive dismissal. Hence the issues before the Industrial Court are amongst others - a. whether there was constructive dismissal; and 13 b. if there was constructive dismissal, whether the date of dismissal is 29.9.2005 as stated in the Ministerial reference or 30.9.2005 as stated in the Statement of Case." [Emphasis added] [27] In the instant appeal, we are of the respectful view that the substance of the Minister's reference to the Industrial Court is on the issue of dismissal, whether the Claimants were dismissed by the Company with just cause and excuse. [28] On the issue of the date of the dismissal, we hold that the same does not go to the issue of jurisdiction as it is a finding of fact by the Industrial Court as to whether the dismissal took place on 4.1.2007 or 8.1.2007. The Applicants took the position that they have been dismissed on 4.1.2007. They then made their complaint to the Minister, and the Minister referred their complaints to the Industrial Court for adjudication. It is not the role of the Minister to ascertain the 'correct or 'actual' date of dismissal of the Applicants as his role is limited to ascertaining whether, on the facts and materials placed before him, the representations raised serious questions of fact or of law calling for adjudication. We find guidance in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Other Appeals [1997] 1 CLJ 665, where the Court of Appeal held as follows: 14 "To summarise, when a question arises as to whether the Minister has correctly exercised his discretion under s. 20(3) of the Act, it is the solemn duty of a Court to undertake a meticulous examination of the facts that were made available to the Minister. If the examination reveals that the representations made under s. 20(1) are neither perverse, frivolous nor vexatious, a decision not to refer is liable to be quashed by an order of certiorari. It follows from these decisions that the Minister must bear in the forefront of his mind that the Act has established a special tribunal to adjudicate upon a dispute arising from representations made under s. 20(1) of the Act and that it is therefore no part of his function to arrive at a concluded view upon the merits of the dispute. His role is limited to ascertaining whether, on the facts and materials placed before him, the representations raised serious questions of fact or of law calling for adjudication. And, as I have already said, his determination upon the question one way or the other is not conclusive…, (Emphasis Added) [29] After the Minister's reference to the Industrial Court is on the issue of dismissal, that is whether the Claimants were dismissed by the Company with just cause and excuse, it is for the Industrial Court to ascertain the date of the dismissal of the Applicants after hearing all the evidence. In the event the Industrial Court finds that the Applicants have been dismissed on a date which is different date from the date in the Minister's reference, it does not mean that the Industrial Court is no longer seized with jurisdiction, because the Industrial Court has already acquired jurisdiction from the Minister's reference 15 itself. The reference is on the Applicants’ complaints which is, their dismissal and not on the date of dismissal. It is clearly illogical if the Industrial Court suddenly finds itself lacking in jurisdiction after scrutinising through the evidence and makes a finding that the date of dismissal is different from the date stated in the ministerial reference. [30] We find support in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal [1995] 3 CLJ 344, where the Federal Court held as follows: "[2] Once a case of wrongful dismissal has been properly referred by the Minister under s. 20(3), the Industrial Court is seized with jurisdiction and is obliged under the Act to determine the dispute on merits, unless the reference itself is void ab initio. The Industrial Court has no jurisdiction to change the scope of such reference ..." [Emphasis added] [31] Further, it is not in dispute that the Applicants were involved in a strike, when they refused to report for work despite attempts made by the 1st Respondent to persuade them to return to work. Section 43 of the Industrial Relations Act 1967 states that the restrictions on strike, which inter alia, requires notice to be given to the Company/employer. In this case, the Applicants did not give any evidence on the notice as required under section 43. . 16 Conclusion [32] Premised on the reasons enumerated above, we find that there are no merits in the appeal. The appeal is hereby dismissed with cost of RM5,000.00 subject to payment of allocatur and the decision of the High Court is affirmed. Dated: 2 March, 2021 sgd (LEE HENG CHEONG) Judge Court of Appeal, Malaysia For the Applicant : Ramdhari JBS and Pong Loong Kean Messrs P.Kuppusamy & Co Selangor Darul Ehsan For the 1st Respondent : Rejinder Singh Messrs Rejinder Singh & Associates Kuala Lumpur