Mohamed Hanif Bin Abdul Hamid v 1. Y.B. Menteri Sumber Manusia (Permohonan Semakan Kehakiman No. WA-25-121-04/2017)

1.

PELABUHAN TANJUNG PELEPAS SDN BHD ... RESPONDEN-RESPONDEN 2 Grounds of Decision Azizah Nawawi, J: Application [1] This is the applicant‟s application for judicial review seeking the following prayers:

an order of Certiorari to quash the decision of the 1st respondent (“Minister”) for not referring the representation of the applicant to the Industrial Court pursuant to Section 20 of the Industrial Relation Act 1967 (“IRA 1967”) in relation to the dismissal of the applicant by the 2nd respondent (“Company”) on 30.11.2015; and

(ii) an order of Mandamus to compel the Minister to refer the applicant‟s representation to the Industrial Court. [2] The grounds of the application are:

that the Minister‟s conclusion that the applicant‟s claim is frivolous and vexatious is perverse and suffers from Wednesbury unreasonableness;

(ii) that the Minister‟s failure to consider and/or appeciate that there was no evidence of the applicant‟s alleged poor performance; 3

(iii) that the Minister‟s failure to consider that in industrial law, contractual terms are not the sole determinant of an employer‟s right, and even if the contract permits the doing of such act, the same must be fair with just cause and excuse;

(iv) that the Minister‟s failure to consider the absence of evidence of an appraisal despite the applicant having been assured in writing that an appraisal would be considered; and

that the decision not to confirm was taken in less than two

of the three (3) month extended probation period. [3] Having considered the application and the submission of the parties, this court has dismissed the application with costs. The Salient Facts [4] The applicant commenced his employment with the Company on 1.3.2015 as the Deputy Chief Executive Officer and reports directly to the Company‟s Chief Executive Officer (“CEO”) or his duly nominated representative. [5] Clause 9 of the Offer of Employment dated 26.2.2015 provides that the applicant will be required to serve a probationary period of six (6) months from the date of assumption of duty and the period may, at the discretion of the Company, be extended up to a maximum of nine (9) months. 4 [6] The applicant had signed and acknowledged his acceptance to the said terms in the Offer of Employment. [7] Towards the end of August 2015, the Company‟s CEO had discussed with the applicant that his probationary period will be extended in view of his unsatisfactory performance during his initial probationary period. [8] The applicant was then notified via the „Extension of Probationary Period Notice‟ letter dated 1.9.2015 that his probationary period will be extended for another three (3) months effective 1.9.2015 to:

to enable the Company to further review the applicant‟s work performance; and

(ii) to provide an opportunity for the applicant to attain the level of the required performance. [9] Despite constant monitoring and reviewing of the applicant‟s performance in the extended probationary period, the Company found that the applicant was not suitable for confirmation in his position as the Deputy Chief Executive Officer. [10] On 27.10.2015, a meeting was held between the Company‟s CEO, the Head of Legal, the Group Human Resources of the Company parent company (MMC Corporation Berhad) together with the applicant. Pursuant to the said meeting, the Company served the Non-Confirmation Notice dated 28.10.2015 to the 5 applicant. The Applicant‟s last date of employment would be 30.11.2015. [11] Being aggrieved by the said Notice, the applicant lodged a complaint under Section 20 of the IRA 1967 with the Minister. [12] By a letter dated 27.1.2017, the applicant was informed that the Minister had decided that his representation is not fit to be referred to the Industrial Court. [13] Being dissatisfied with the Minister‟s decision for refusing to refer his representation to the Industrial Court, the applicant had filed this application on 26.4.2017 to challenge the said decision of the Minister. The Findings of the Court [14] In Booi Kim Lee v. YB Menteri Sumber Manusia & Another [1999] 4 CLJ 121, 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:

illegality;

(ii) irrationality; and

(iii) procedural impropriety. 6 [15] 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.” [16] 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”. [17] By procedural impropriety, it includes „failure by an administrative tribunal to observe procedural rules that are expressly laid out...” and “duty to act fairly”. [18] The applicant‟s complaint is premised on section 20 (3) of the IRA 1967, which reads as follows: “20. Representations on dismissal

....

....

Upon receiving the notification of the Director General under subsection (2), the Minister may, if he thinks fit, refer the representations to the Court for an award.” 7 [19] Subsection 20(3) of the IRA was considered by the Supreme Court in Minister of Labour, Malaysia v Lie Seng Fatt [1990] 2 MLJ 9, where the Court held as follows: “The Minister‟s discretion under s. 20(3) is wide but not unlimited. As stated earlier as long as he exercises the discretion without improper motive the exercise of the discretion must not be interfered with by the Court unless he had misdirected himself in law or had taken into account irrelevant matters or had not taken into consideration irrelevant matters or that his decision militates against the object of the statute. Otherwise he has a complete discretion to refuse to refer a complaint which is clearly a frivolous or vexatious which in our view this is one.” [20] 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. 8 ..... 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) [21] In Exxon Chemical (Malaysia) Sdn Bhd v Menteri Sumber Manusia, Malaysia & Ors [2007] 2 CLJ 97, the Federal Court held as follows: “There was much debate before us about the words “meticulous examination of the facts.” In our view, there is no magic in the use of that phrase. It does not set any universal standard. It is not an inflexible term. It merely means that there should be an objective examination of the factual matrix available before the Minister in order to ascertain whether a reasonable person, similarly circumstanced, would have arrived at the decision which the Minister had done. The extent of that duty had been succinctly stated by Abdoolcader SCJ in Malayan Banking Bhd v. Association of Bank Officers, Peninsular 9 Malaysia & Anor [1988] 1 CLJ 276 when he quoted, with approval a statement by Lord Denning HL in the case Ashbridge Investment Ltd v. Minister of Housing and Local Government [1965] 1 WLR 1320 at p. 1326: The court can only interfere on the ground that the Minister has gone outside the powers of the Act or that any requirements of the Act has not been complied with. Under this section, it seems to me that the court can interfere with the Minister‟s decision if he had acted on no evidence; of if he has come to a conclusion to which on the evidence he could not reasonably come; or he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account or vice versa; or has otherwise gone wrong in law.” [22] In his affidavit affirmed on 21.6.2017, the Minister has explained the reasons for his decision, inter alia, as follows: [21] Merujuk kepada perenggan 11 Affidavit Sokongan Pemohon, saya sesungguhnya telah mengambilkira segala fakta-fakta dan dokumen-dokumen relevan yang telah dikemukakan oleh kedua-dua pihak semasa rundingan damai bahawa: 10

Pemohon telah menerima dan menandatangani kontrak perkhidmatan bertarikh 26.2.2015 yang jelas menunjukkan bahawa Pemohon mempunyai pengetahuan berkenaan terma tempoh percubaan sepertimana klausa no. 9 kontrak perkhidmatan tersebut.

Pemohon telah diberikan lanjutan tempoh percubaan sebagai peluang untuk memperbaiki prestasinya sebelum penilaian dibuat bagi tujuan pengesahan jawatan Pemohon di dalam syarikat Responden Kedua. Berdasarkan surat bertarikh 1.9.2015, Pemohon telah dimaklumkan aspek-aspek pekerjaan yang harus diperbaiki dalam tempoh lanjutan percubaan yang diberikan.

Pemohon juga telahpun berbincang dengan En. Glen Hilton, Ketua Pegawai Eksekutif, Responden Kedua dan mendapatkan penjelasan lanjut daripada En. Izham Ab Wahab, Ketua Sumber Manusia Kumpulan di MMC Berhad mengenai prestasi kerjanya.

Penamatan pekerjaan Pemohon dibuat adalah berdasarkan kepada terma-terma kontrak perkhidmatan sepertimana yang telah dipersetujui dan ditandatangani oleh Pemohon. Justeru itu, tidak terdapat sebarang pelanggaran terma-terma kontrak di pihak Responden Kedua. 11 [22] Merujuk kepada perenggan 12 Affidavit Sokongan Pemohon, saya sesungguhnya menafikan keseluruhan pernyataan Pemohon selanjutnya menyatakan seperti berikut:

Saya telah mengambilkira kesemua fakta-fakta dan dokumen-dokumen yang relevan serta tidak melakukan kesilapan dari sudut undang-undang mahupun fakta dengan menggunapakai prinsip undang-undang relevan dan tidak mengambil keputusan yang “perverse” apabila memutuskan bahawa representasi mengenai pembuangan kerja Pemohon tidak wajar dirujuk ke Mahkamah Perusahaan.

Saya telah mengambilkira fakta-fakta dan dokumen-dokumen yang relevan menggunapakai prinsip undang-undang relevan tanpa melakukan ketidakmunasabahan Wednesbury apabila menyimpulkan bahawa representasi Pemohon adalah suatu yang “frivolous and vexatious”.

Saya tidak melakukan ketidakmunasabahan Wednesbury apabila memutuskan bahawa representasi mengenai pembuangan kerja Pemohon tidak wajar dirujuk ke Mahkamah Perusahaan.” 12 [23] It is not in dispute that the applicant had signed the Letter of Offer dated 26.2.2015, which includes, inter alia, this term: “ ..... (applicant) will be required to serve a probationary period of six (6) months from the date of the assumption of duty. The probational period may at the discretion of the Company, be extended up to a maximum of nine (9) months.” [24] When the Company is of the opinion that the applicant‟s performance during the initial probationary period was not satisfactory, he was offered a three (3) month extension vide the Extension of Probationary Period Notice Letter dated 1.9.2015 to improve his performance. Despite the said extension, the Company found that the applicant was not suitable for confirmation as the Deputy CEO. Therefore, at the end of the probationary period, on 30.11.2015, the applicant was not confirmed in his post. [25] In this case, the Minister has taken all the relevant considerations, that the applicant had signed the agreement where he was placed on probationary and that because his performance was not satisfactory, the probationary period was extended for another three months from 1.9.2015, ending 30.11.2015. The three-month extension was to provide an opportunity for the applicant to attain the level of desired performance and to enable the Company to review his work performance. Since the Company finds that the applicant‟s performance was not suitable for him to be confirmed in his 13 position as the Deputy CEO, he was served with the Non-Confirmation Notice in accordance with his employment contract. [26] Having considered these facts and the documents before him, the Minister finds that this is not a fit case to be referred to the Industrial Court for adjudication. Having considered the Minister‟s affidavit, I am of the considered opinion that the Minister had not misdirected himself in law or had taken into account irrelevant matters or had not taken into consideration irrelevant matters or that his decision militates against the object of the statute. In this case, he had considered all the facts and the evidence before him to make his decision not to refer the applicant‟s representation to the Industrial Court. [27] The applicant takes the position that the Minister has failed to consider that there was no evidence of the applicant‟s alleged poor performance. [28] However, I am of the considered opinion that there is no necessity for the Minister to look into the applicant‟s poor performance as the applicant was on probation and he was simply not confirmed in the post as Deputy CEO upon the expiry of the probation period. [29] If the applicant was terminated before the expiry of the probationary period, then the Minister will have to consider the reasons for the termination. The Federal Court in KC Mathews v. Kumpulan Guthrie Sdn Bhd [1981] CLJ (Rep) 62 had quoted with approval the principle laid down in the case of Express 14 Newspaper (P) Ltd v. Labour Court & Anor AIR [1964] SC 806 where it was held: “There can, in our opinion, be no doubt about the position in law that an employee appointed on probation for six months if at the end of the period his services had either not been terminated or he is confirmed. It appears clear to us that without anything more an appointment on probation for six months gives the employer no right to terminate the service of an employee before six months had expired – except on the ground of misconduct or other sufficient reasons in which case even the services of a permanent employee could be terminated. At the end of the six months’ period, the employer can either confirm him or terminate his services, because his service is found to be unsatisfactory. If no action is taken by the employer either by way of confirmation or by way of termination, the employee continues to be in the service as a probationer.” (emphasis added) [30] Therefore, if the applicant was terminated before the end of the probationary period, the Minister will have to look into the grounds of termination, whether the termination was premised on the ground of misconduct or other sufficient reasons. But in the present case, since the applicant was not confirmed in the said position as the Deputy CEO at the end of the probationary period because the Company finds that his service was not satisfactory, then there is no necessity for the Minister to unravel the reasons 15 of the non-confirmation as the Company has the legal right to terminate the applicant‟s service at the end of the probationary period if the applicant did not meet the standards set by the Company. [31] In the case of Robert John Reeves v. Menteri Sumber Manusia, Malaysia & Anor [2000] 1 MLJ 107, the Court held that upon an employer‟s evaluation that a probationer had not performed satisfactorily, the employer was entitled to terminate the probationer‟s service. The Court held at page 122: “Therefore in the instant case at the end of the applicant’s probationary period, it was open to the second respondent either continue or discontinue the services of the applicant. The applicant, by virtue of being a probationer, had no say in the matter and the second respondent, as the employer, was fully entitled to terminate his services upon their evaluation that he did not perform his job functions satisfactorily. If it was otherwise, there would be no distinction between probationary employment and permanent employment...” (emphasis added) Conclusion [32] Premised on the reasons enumerated above, I am of the considered opinion that that the Minister has considered all the relevant matters placed before him before making his decision. I also find that there are no serious issue of law or fact which 16 requires the representation to be referred to the Industrial Court for adjudication. As such, the application is dismissed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 27 April 2018 For the Applicant : Sunil Vijayan The Chambers of Sunil Vijayan Kuala Lumpur. For the 1st Respondent : Puan Noor Akmal Bt Mustafa Kamal (SFC) Jabatan Peguam Negara Putrajaya. For the 2nd Respondent : Dato‟ T.Thavalingam/Sharifullah Majeed Messrs Lee Hishammuddin Allen & Gledhill Kuala Lumpur. Cases referred:

Booi Kim Lee v. YB Menteri Sumber Manusia & Another [1999]

Minister of Labour, Malaysia v Lie Seng Fatt [1990] 2 MLJ 9.

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

KC Mathews v. Kumpulan Guthrie Sdn Bhd [1981] CLJ (Rep) 62.

Robert John Reeves v. Menteri Sumber Manusia, Malaysia & Anor [2000] 1 MLJ 107. 17