Myeg Trade Sdn. Bhd. v Edward Tan Yu Tho (WA-16A-107-09/2024)

The Appellant appealed against the award of the Industrial Court issued on 20.8.2024 which found the Respondent to have been dismissed without just cause and excuse.

At the hearing before me, the Respondent raised a preliminary objection. The Respondent contends that Appellant ought to have filed for judicial review and not appeal against the award. Salient facts

In view of the preliminary objection which I find to have merits, I find it necessary to set out only the undisputed facts.

The Appellant is in the business of car trading. The Respondent commenced employment with the Appellant as a General Manager on 1.7.2015.

On 20.1.2020, a show cause letter was issued to the Respondent containing charges of misconduct against him. The Respondent replied to the show cause letter.

Subsequent to the reply of the Respondent, the Appellant was directed to attend a domestic inquiry on 12.2.2020. The inquiry concluded with a finding of guilt and a recommendation that action be taken against the Respondent.

By a letter dated 18.2.2020, the Appellant proceeded to dismiss the Respondent with effect from 19.2.2020.

The Respondent made representations to be reinstated to the Minister of Human Resources pursuant to section 20 of the Industrial Relations Act 1967.

On 19.11.2020, as the matter could not be resolved, the Minister referred the Respondent’s representation for reinstatement pursuant to section 20(3) of the Industrial Relations Act 1967. The preliminary objection

The Respondent submits the Appellant had adopted the wrong mode of commencement of proceedings to challenge the award of the Industrial Court.

Notwithstanding the Industrial Relations (Amendment) Act 2020 (“Amendment Act 2020”), the provisions do not apply to the factual matrix of the Appellant’s case. Judicial review remained the only recourse open to the Appellant. Analysis and decision of this court

The Amendment Act 2020 introduced a new mode of challenge to an award of the Industrial Court. Any person aggrieved with the decision of the Industrial Court must now file an appeal to the High Court.

The relevant provision housed in section 33C of the Industrial Relations Act 1967 reads as follows: 33C Appeal against an award to the High Court

If any person is dissatisfied with an award of the Court made section 30 such person may appeal to the High Court within fourteen days from the date of receipt of the award.

The procedure in an appeal to the High Court shall be the procedure in the Rules of Court 2012 [P.U. (A) 205/2012] for an appeal from a Sessions Court with such modifications as the circumstances may require.

In dealing with such appeals, the High Court shall have like powers as if the appeal is from the Sessions Court.

Section 33C came into force on 1.1.2021. However, as is usual with amending legislation, it is necessary to cater by way of saving and transitional provisions, for preservation of actions which had already been taken or existing rights before an amendment comes into force.

In this regard, section 35 of the Amending Act 2020 is relevant, and it states as follows: 35 Saving and transitional provisions

Complaints made under section 8, disputes referred under subsection 9(1A), claims for recognition made under section 9, representations for reinstatement made under section 20 of the principal Act, and all proceedings commenced or awards made before the Industrial Court in relation to a reference under subsection 8(2A), subsection 20(3) and section 26 before the coming into operation of this Act shall proceed and have effect as if the principal Act had not been amended by this Act.

In substance, section 35 provides that where representations for reinstatement under Section 20 were made before 1.1.2021, it shall proceed as if the Industrial Relations Act 1967 had not been amended. Therefore, the only way to challenge the Industrial Court’s award made pursuant to such representations, is by way of an application for judicial review.

The exact date of the Respondent’s representations for reinstatement to the Director General of Industrial Relations is unclear from the Records of Appeal. However, what is apparent is that the Minister of Human Resources referred the Respondent’s representation on 19.11.2020. It is therefore safe to assume that the Respondent would have made his representation before that date.

Looking at the time line, his representations for reinstatement was therefore clearly before 1.1.2021. Pursuant to section 35, if he is aggrieved by the subsequent award of the Industrial Court, he must bring his grievance to the High Court by way of judicial review as if the Act had not been amended.

I consider the point well settled by the Court of Appeal in the case of Rosli bin Saad v SG Concrete Products (M) Sdn Bhd and another appeal [2025] 4 MLJ 274.

In that case, a preliminary objection was taken to the appeal filed in the High Court by the employee who was dissatisfied with the award of the Industrial Court. Although his representations for reinstatement were made in 2020, his representations were referred by the Minister to the Industrial Court only after the amendments came into force.

The Court of Appeal held that the determining date is the date of the representations for reinstatement. The relevant portion of the judgment is reproduced as follows: [22] In essence, s.35 of Act A1615 states that where any representation for reinstatement is made under s.20 of the Act before the coming into force of the amended Act, it shall proceed under the unamended Act. [23] If the representation for reinstatement was made before 1.1.2021 and the Minister refers it before 1.1.2021, there is no ambiguity. Likewise, if the representation and referral were made after 1.1.2021. ... [25] The determining factor is when the said representation for reinstatement was made to the Department of Industrial Relations under s.20 of the Act. … [31] Instead, we emphasize again that the critical issue is the timing of the representation for reinstatement under s.20(1). If the said representation was made before the coming into force of the amended Act, the proceedings should be based on the unamended Act. ... [35] Therefore, by applying judicial precedent and the provisions of s.35 of Act A1615, any challenge against an award of an Industrial Court must be by way of a Judicial Review. … [37] Given this finding, we do not find it necessary to consider the substantive appeal.”

In the present case, both the representations for reinstatement and the reference by the Minister was before 1.1.2021. There is clearly no ambiguity as to the application of the procedure to challenge an award. His recourse to the High Court is as if the Act had not been amended.

The Appellant submits that the wordings in section 33C is the operative provision to consider, namely “if any person is dissatisfied with an award of the Court.” As the award was delivered on 20.8.2024, well after 1.1.2021, the Appellant’s appeal against the award is in order.

In my view, this interpretation is misconceived as it totally overlooks the effect of the saving and transitional provision in section 35.

Premised on the foregoing reasons, I find merits in the preliminary objection of the Respondent. The Appellant ought to have filed judicial review proceedings instead of an appeal.

In the circumstances, the appeal filed vide Notice of Appeal dated 6.9.2024 in enclosure 1 is struck out. I do not find it necessary to consider the merits of the appeal. I make no order as to costs. Dated: 25th May 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Applicant: En. Muhammad Amin bin Othman Messrs. Hafarizam Wan & Aisha Mubarak Counsel for Respondent: En. Guok Ngek Seong (En. Ng Choon Kiat and En. Ahmad Nur Zharif bin Rosdi with him)