Prabaharan A/L Malayalam v Hiewa Auto Gallery (Larkin) Sdn Bhd (J-01(A)-83-02/2021)

MAHKAMAH PERUSAHAAN JOHOR BAHRU … RESPONDEN-RESPONDEN DIDENGAR BERSAMA DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. J-02(IM)-1512-10/2021 ANTARA HEIWA AUTO GALERRY (LARKIN) SDN BHD … PERAYU DAN 24/07/2023 10:25:33 J-01(A)-83-02/2021 Kand. 44 PRABAHARAN A/L MALAYALAM (NO. K/P: 671114-10-5757) … RESPONDEN [Dalam Mahkamah Tinggi Malaya di Johor Bahru (Bahagian Rayuan dan Kuasa-Kuasa Khas) Permohonan Untuk Semakan Kehakiman No. : JA-25-18-04/2020 Antara Prabaharan a/l Malayalam … Perayu Dan

Hiewa Auto Gallery (Larkin Sdn Bhd)

Mahkamah Perusahaan Malaysia … Responden-Responden] CORAM: YAACOB HAJI MD SAM, JCA AHMAD ZAIDI BIN IBRAHIM, JCA MARIANA BINTI HAJI YAHYA, JCA GROUNDS OF JUDGMENT [1] This Court (by a different coram) had directed this appeal Appeal No. J-01(A)-83-02/2021 (“Appeal No. 83”) to be fixed for hearing together with Appeal No. J-02(IM)(NCVC)-1512-10/2020 (“Appeal No.1512”) because both appeals arose out of the same facts and same parties. Both counsels agreed that we should hear Appeal No. 83 first as our decision on the question of law will enable us to decide Appeal No.1512. [2] Appeal No. 83 concerns the Appellant’s (Prahabaran a/l Malayalam) appeal against the High Court’s decision dismissing an application for judicial review for a certiorari to quash the Award made by the 2nd Respondent, the Industrial Court. The Industrial Court made an Award that essentially decided that the Appellant had abandoned his employment with the 1st Respondent and for that reason not avail himself under the provisions of the Industrial Relation Act 1967. [3] Appeal No. 1512 was filed by Hiewa Auto Gallery (Larkin) Sdn Bhd (the 1st Respondent in Appeal No. 83) against the decision of the High Court allowing the Appellant Prabaharan a/l Malayalam’s application to strike out the 1st Respondent’s claim in Civil Suit No. JA-22NCVC-184- 11/2019 for a declaration that the Appellant has abandoned his employment with the 1st Respondent and the Appellant to reimburse the salary and the Employment Provident Fund (EPF) contributions paid by the 1st Respondent to the Appellant during his suspension period. [4] Having considered the submissions by parties, we have adjourned the matter for decision. We will now give our decision and reasons for the decision. BRIEF BACKGROUNDS [5] The Appellant was an employee of the 1st Respondent. On 20.3.2018, the Appellant was suspended with full salary and benefits pending an investigation into allegation of misconduct. Following the investigation, the Appellant was dismissed from his employment with the 1st Respondent vide a letter dated 6.6.2018. The termination took effect on 14.6.2018. [6] Based on the Appellant’s representation that he was still an employee of the 1st Respondent as at 14.6.2018, his complaint was referred to the Industrial Court by the Minister, pursuant to S. 20(3) of the Industrial Relation Act 1967. [7] Meanwhile, unknown to the 1st Respondent, the Appellant had commenced employment with another company, TC Trucks After Sales Sdn Bhd (TC Trucks) starting from 16.5.2018. In other words, the Appellant had commenced his employment with TC Truck After Sales Sdn Bhd about one month before the 1st Respondent’s termination letter served and took effect on him, which was on 14.6.2018. At the hearing of the Industrial Court, the Appellant has admitted that he started his new employment even before the termination letter was issued by the 1st Respondent. The fact of the Appellant’s new employment was discovered by the 1st Respondent’s Human Resource Manager while going through the Pertubuhan Keselamatan Sosial (Socso) records of the Appellant. The HR Manager discovered that TC Trucks had been paying monthly Socso contributions for the Appellant from 16.5.2018. TC Trucks also revealed that it had been paying Kumpulan Wang Simpanan Pekerja (EPF) contributions for the Appellant, who was their full-time employee, from 16.5.2018. One of the witnesses subpoenaed by the 1st Respondent, namely Encik Azman Lan, produced the application form submitted by the Appellant for a job in TC Trucks. In the application form, which was the Appellant’s own writing, under the space “Reason for leaving previous job”, the Applicant stated “For better offer and wanted to be back in KL area.”. When confronted with all the evidence, at the Industrial Court, the Appellant’s sole reply was that he was a “freelance worker” or “part time” with TC Trucks while waiting for a decision from the 1st Respondent on his disciplinary action. [8] The Industrial Court had allowed the 1st Respondent’s application to amend its Statement of Reply dated 11.12.2018 by adding the following paragraph : “Alternatively, the Company avers that the Claimant has abandoned his employment as Head of B & P Department in the Company on 16.5.2018 when he commenced his employment with his new employer TC Trucks After Sales Sdn Bhd, which paid contributions for the Claimant’s EPF and Socso for the month of May and June

Therefore, the Claimant had abandoned his employment with the Company before the Company’s letter of dismissal to the Claimant was issued on 6.6.2018, which took effect from 14.6.2018. Thus, the Claimant is not entitled, in any event, to reinstatement or compensation in lieu of reinstatement.” [9] Upon the amendment of the 1st Respondent’s Statement of Reply, before the Industrial Court proceeded to decide whether the Appellant had been dismissed without just cause or excuse, there arose an issue of law for determination i.e. whether the Appellant was a workman as defined in the Industrial Relation Act 1967 as to avail himself of the provisions of the Act. [10] Several cases have decided on the above issue. In Maritime Intelligence Sdn Bhd v Tan Ah Gek [2021] 4 ILR 417 (also reported in [2021] MLJU 2189), the employer had introduced new reasons to try to justify their earlier decision to dismiss the employee. The Federal Court held that an employer may not raise new reasons which were not considered at the time of dismissal of the employee to justify the decision to dismiss. OUR DECISION [11] In this instant appeal before us, we are of the considered view that the 1st Respondent did not introduce any new reasons to justify their decision. The facts are completely different. The 1st Respondent had adduced evidence to prove that the Appellant had chosen to become a fulltime employee of another company since 16.5.2018, which was before the 1st Respondent decided to issue a letter of termination on 6.6.2018. The evidence was to prove that the Appellant was no longer an employee of the 1st Respondent since 16.5.2018, and not to try to justify their decision to dismiss him for misconduct. The 1st Respondent was not aware that the Appellant had in fact chosen to leave his employment because he was under suspension with full salary, and did not need to report for work in the month of May 2018. [12] As for the question as to whether the Industrial Court has the jurisdiction to decide whether the Appellant, who was the claimant at the Industrial Court, was an employee of the 1st Respondent on the date when the 1st Respondent made a decision to dismiss him, we found that learned Chairman of the Industrial Court was right to follow Kathiravelu Ganesan & Anor v. Kojasa Holdings Bhd [1997] 2 MLJ 685. In the judgment of the Supreme Court (at page 699 thereof), the Supreme Court held that the Industrial Court has jurisdiction to “deal with the jurisdictional question, eg. whether the particular Claimant is or is not a workman”. [13] In Assunta Hospital v Dr. A. Dutt [1981] 1 MLJ 115, the Federal Court also decided that the Industrial Court has the jurisdiction to decide whether a claimant was a workman, before proceeding to hear whether the claimant has been dismissed without just cause or excuse. Chang Min Tat FCJ held as follows: “In the exercise of its jurisdiction in a reference under section 20(3) the court has a duty to come to a first finding whether or not the claimant was or was not a workman within the definition of a workman in the Act…” [14] In Hong Leong Equipment v Liew Fook Chuan & Other Appeals [1987] 1 CLJ 665 this court held that the Industrial Court has power to hear the matter afresh. Thus, although there was a domestic inquiry, such as in this instant case, this should not be a hindrance for the 2nd Respondent to evaluate all the evidence again on its own to find the dismissal of the Appellant was indeed with just cause and excuse. The 2nd Respondent is not bound by findings of the domestic inquiry. [15] It is only logical that the Industrial Court must have jurisdiction to decide whether a claimant is an employee of the employer at the time of his alleged dismissal. Based on the above authorities, we are satisfied that the Industrial Court was right to make a finding that at the time of the Respondent deciding in June 2018 to dismiss the Appellant, the Appellant was in fact not an employee of the Respondent, because he had already become a fulltime employee of another company, namely TC Trucks since 16.5.2018. [16] In any event, the facts show that the Appellant did not lose any salary or employment benefits. He was paid his salary by his new employer after he started working there since 16.5.2018. Since he had decided to leave the employment of the 1st Respondent and became a fulltime employee of another company, we found that the Appellant was dishonest in pursuing his claim at the Industrial Court. [17] It is trite law that an application for judicial review of the decision of a lower tribunal is not an appeal. The decision of the tribunal, the Industrial Court in this instant appeal, is susceptible to judicial review only on the grounds of “illegality”, “irrationality”, “procedural impropriety” and “proportionality” (see: Sunway University College v Mahkamah Perusahaan Malaysia & Anor [2019] 3 MLJ 749 FC; Petroleum Nasional Bhd v. Nik Ramli Nik Hassan [2004] 2 MLJ 288 FC). CONCLUSION [18] For the reasons stated above, we are of the considered view that there is no appealable error committed by the High Court in dismissing the Appellant’s judicial review application. The Appellant’s appeal is accordingly dismissed. [19] Based on our finding that the Industrial Court has jurisdiction to decide on whether a claimant (the Appellant) is an employee of the employer (the 1st Respondent) at the time of his alleged dismissal, we must also dismiss Appeal No.1512. [20] The order of the High Court is affirmed. [21] We made no order as to costs of both appeals. t.t. (YAACOB HAJI MD SAM) Judge Court of Appeal Malaysia Dated 18th July 2023 Peguamcara bagi pihak Perayu : Datuk Seri Gopal Sri Ram Manoharan Malayalam Chua How Li Nee [Tetuan M Manoharan & Co.] Peguamcara bagi pihak Responden Pertama: Gan Techiong Wong Wan Ting [Tetuan Gan & Lim] Peguamcara bagi pihak Responden Kedua: (Tidak diwakili)