Mat Saat Bin Ahmad & 16 yang Lain v 1. ) Linfox Transport Sdn Bhd (WA-25-208-07/2015)

1.

MAHKAMAH PERUSAHAAN MALAYSIA … RESPONDEN-RESPONDEN Grounds of Decision Azizah Nawawi, J: Application [1] The Applicants are seeking to quash the award of the Industrial Court No. 422 of 2015 dated 13.4.2015. [2] Having considered the application and the submission of the parties, this Court had dismissed the application and affirmed the Award of the Industrial Court. The Salient Facts [3] The Applicants were the former employees (the “Claimants”) of the 1st Respondent (the “Company”) and were employed as drivers to 3 transport gas from Malaysian Oxygen to various places in Semenanjung Malaysia. [4] The Claimants were paid allowances per trip in accordance with the distance they travel outstation based on the „Manual System‟. [5] 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 Claimants and the Company. [6] On 4.1.2007, about 40 to 50 employees (including the Claimants) gathered at Shapadu Rest Area refusing to resume work. [7] Despite several approaches by the Company, the employees refused to report back to work, resulting in a deadlock. [8] When the employees continued to refuse to report for duty, the Company 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. 4 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.” [9] Thereafter, 47 employees had appealed to the Company, and their appeals were accepted by the Company. [10] The Claimants then filed a representation under Section 20 of the Industrial Relations Act 1967 to the Industrial Relations Department and the representation was referred to the Industrial Court for an adjudication by the Minister under section 20(3) of the Industrial Relations Act 1967. [11] After a full trial, the Industrial Court had dismissed the Claimants‟ claim. Hence, the Claimants filed this application to quash the said Award. 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: 5 “[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, 6 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 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: 7

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 consideration, such findings are always amendable to judicial review”. (emphasis added) [13] In Booi Kim Lee v YB Menteri Sumber Manusia & Golden Plus Geaniait SB [1999] 3 MLJ 515, Justice KC Vohrah adopted Lord Diplock‟s classification of grounds of judicial review in the House of Lords case of Council of Civil Service Unions V. Minister for the Civil Service [1985] AC 374. The three (3) grounds described by Lord Diplock are: 8

illegality;

(ii) irrationality; and

(iii) procedural impropriety. [14] By illegality as a ground for judicial review, it means “that the decision-maker must correctly understand the law that regulates his decision-making power and must give effect to it‟ and that “… the authority concerned has been guilty of an error of law in its action as for example, purporting to exercise a power which in law it does not possess.” [15] By irrationality it means „Wednesbury unreasonableness‟ and “applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided upon could have arrived at it” [16] By procedural impropriety, it includes „failure by an administrative tribunal to observe procedural rules that are expressly laid out..” and “duty to act fairly”. [17] In the present case, the only issue raised by the Claimants is that they have been dismissed by the Company on 4.1.2007 but the Industrial Court made a finding of fact that they were not dismissed on 4.1.2007. Therefore, the Applicants submit that the Industrial Court has committed a serious error of law and/or fact and had acted outside its statutory jurisdiction when it stated that the dismissal date 9 is 8.1.2007 and not 4.1.2007, as stated by the Minister in the reference for adjudication before the Industrial court. [18] The Applicants have submitted that since the Industrial Court‟s finding on the date of dismissal is different from the Minister‟s reference, then premised on the case Dreamland Corporation (M) Sdn Bhd v. Choong Chin Sooi & Anor [1981] 1 MLJ 112, the Industrial Court has no jurisdiction to adjudicate on the complaint which is not the subject matter of the Minister‟s reference under section 20(3) of the IRA 1967. The relevant part of Dreamland Corporation case that was relied by the Company and the Industrial Court reads as follows: “Accordingly, we hold that the workman was lawfully dismissed as was held by the Industrial Court. 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.” [19] However the issue in Dreamland Corporation case is different from the present case. In Dreamland Corporation, the Industrial Court has heard the witnesses and handed down the following award: 10 “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 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...

The Company is to pay this sum within one (1) month from the date of this Award after tax clearance.” (emphasis added) [20] This above award was referred under s. 33A of the Industrial Relations Act 1967 to the High Court on the following questions of law:

does the Industrial Court have jurisdiction to award compensation to a workman whose dismissal has been upheld by the Court; and 11

(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? [21] It is in relation to the 2nd question of law that the Supreme Court held that the Industrial Court (and the High Court which affirmed the decision of the Industrial Court) has 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. [22] Therefore, in the Dreamland Corporation case, as to what is the date referred to in the Minister‟s reference is not even in the case itself. There is no issue that the date of dismissal in the Minister‟s reference is different from the actual date of dismissal found by the Industrial Court in Dreamland Corporation case. [23] The issue on the date is in the 2nd question of law referred to the High Court, that 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. 12 [24] I am of the considered opinion that the relevant case to consider is the decision of Justice Aziah Ali in Shafie bin Abd Rahman v Petroliam Nasional Berhad [2010] MLJU 1290. In this case, Justice Aziah Ali 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 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.” 13 [25] I am therefore of the considered opinion that 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. That is the substance of the Minister‟s reference. [26] On the issue of the date of the dismissal, the same does not go to the issue 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 Claimants have asserted their 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 for the Minister to ascertain the „correct‟ or „actual‟ date of dismissal in order to state the „correct date’ in his ministerial reference. In Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Other Appeals [1997] 1 CLJ 665, the Court of Appeal held as follows: “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. ..... 14 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) [27] Thereafter, it is for the Industrial Court to ascertain the date of the dismissal after hearing all the evidence. But once the Industrial Court finds that the Claimants have been dismissed on a different date, other than the date in the Minister‟s reference, it does not mean that the Industrial Court no longer has the jurisdiction, because the Industrial Court is already seized with the jurisdiction from the Minister‟s reference itself. The reference is on the Claimant complaints, that is on their dismissal. It is clearly irrational if the Industrial Court suddenly finds itself lacking in jurisdiction after combing through the evidence and makes a finding that the date of dismissal is different from the date in the ministerial reference. 15 [28] In Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal [1995] 3 CLJ 344, 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 an initio. The Industrial Court has no jurisdiction to change the scope of such reference…” (emphasis added) [29] Therefore, I am of the considered opinion that the Industrial Court has not made an error in law when it decided that the date of dismissal is different from that in the Minister‟s reference. [30] Added to that, it is not in dispute that the Claimants were involved in a strike, when they refused to report for work despite attempts made by the Company to get them back to work. Section 43 of the Industrial Relations Act 1967 provides the restrictions on strike, which inter alia, requires notice to be given to the Company/employer. In this case, the Claimants did not give any evidence on the notice as required under section 43. Therefore, it cannot be said that their dismissal was unreasonable, as they were involved in an illegal strike. 16 [31] In the premise, I find that there is no merit in the application and the same is dismissed with cost. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 2nd January 2019 For the Applicant : Ramdhari JBS Messrs P.Kuppusamy & Co Selangor Darul Ehsan For the 1st Respondent : Rejinder Singh Messrs Rejinder Singh & Associates Kuala Lumpur Cases referred:

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

Booi Kim Lee v YB Menteri Sumber Manusia & Golden Plus Geaniait SB [1999] 3 MLJ 515. 17

Dreamland Corporation (M) Sdn Bhd v. Choong Chin Sooi & Anor [1981] 1 MLJ 112.

Shafie bin Abd Rahman v Petroliam Nasional Berhad [2010] MLJU

1290.

Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Other Appeals [1997] 1 CLJ 665.

Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal [1995] 3 CLJ 344.