Rajkumar A/L Vijayan v Mahkamah Perusahaan Malaysia (JA-25-25-10/2024)

1.

SUNTECH ENGINEERING KOREA CO. LTD. [Company No. : 151-87-00065] …RESPONDENTS

This is an application for judicial review by the Applicant (“Claimant”) seeking an order of certiorari to quash Award No. 1200 of 2024 dated 12 August 2024 delivered by the Industrial Court. In the impugned award, the Industrial Court held that the Claimant did not fall within the definition of a “workman” under the contract of employment and consequently, dismissed the Claimant’s claim.

Parties filed written submissions and a bundle of authorities in Enclosures 16 to 23. Oral submissions were also heard on 8 August 2025 and further submissions on the issue of consequential relief, namely compensation and quantum were heard on 15 October 2025. The decision was adjourned to 31 October 2025. This is the Court’s decision and judgment.

The undisputed facts based on the Statement of Agreed Facts filed in the Industrial Court, are as follows—

the Company (“Respondent”) is incorporated in South Korea. It had a contract with Boustead Naval Shipyard Sdn Bhd to carry out “Full Package Accommodation, Panelling, Insulation and Catering System” works for six (6) Littoral Combat Ships for the Royal Malaysian Navy at Lumut, Perak;

on 8 August 2019, the Respondent agreed to appoint AKR Marine Sdn Bhd (“AKR”) to supply manpower and resources for “Hot Work Activities” for that contract;

on 30 August 2019, the Respondent issued to the Claimant a letter of appointment dated 5 May 2019 which set out his job responsibilities and stated, as to remuneration, “Remuneration to follow separate arrangement”;

the “separate arrangement” referred to the agreement that the Claimant’s salary would be paid under a contract between Sejin Technical Industries Sdn Bhd (“Sejin”)—a Malaysian entity owned by the Respondent—and AKR. On 30 May 2019, Sejin entered into a contract with AKR;

AKR issued monthly invoices for May–September 2019 for work under the Sejin–AKR contract. The invoices included a line item of RM20,000.00 referring to the Claimant (variously described as “Production Consultancy” or “Steel Strip Installation”) and a petrol allowance of RM500.00 (except for May 2019). All invoices were paid; and

on 1 October 2019, the Claimant was denied entry to the work site, use of the Company’s facilities, and the ability to carry out his job responsibilities.

The unrebutted facts established at the trial before the Industrial Court as follows—

the Claimant was appointed as Director of Production under the letter of appointment dated 5 May 2019 with a monthly salary of RM20,000.00 and petrol allowance of RM500.00;

his salary was consistently paid via AKR’s invoices issued between May and September 2019 all invoices were paid;

on 1 October 2019, besides being denied access to the worksite, his email and server access were terminated; and

on 9 October 2019, after receiving no response to his emails seeking clarification, he lodged a representation under subsection 20(3) of the Industrial Relations Act 1967 [Act 177] at the Industrial Relations Office.

At the Industrial Court hearing, the Claimant testified and adduced all material evidence pleaded. The Company did not cross-examine, did not object to the evidence and called no witnesses.

The hearing was conducted before Chairman Puan Azwarnida binti Affandi; however, the award was ultimately delivered by Chairman Zulhelmy bin Hasan following the former Chairman’s transfer to another agency.

The Claimant challenges the decision-making process, contending breach of natural justice in failing to consider uncontroverted evidence that was neither objected to nor rebutted and in disregarding the Company’s election not to cross-examine or to call witnesses, rendering the award irrational, perverse and procedurally improper.

The Claimant objected to the Second Respondent’s Reply Affidavit (Enclosure 13) as it was affirmed in Kuala Lumpur in the English language only, contrary to Order 92 rule 1 and Order 41 rule 13 of the Rules of Court 2012 (“ROC 2012”), and should be struck out in limine. Alternatively, the Claimant contended that the affidavit introduced fresh evidence not adduced before the Industrial Court, when the Claimant was not cross-examined. Judicial review must be confined to the record before the tribunal when the impugned award was made.

The Second Respondent replied that the affidavit merely referred to documents already before the Industrial Court, no formal striking-out application had been filed, subsection 30(5) of Act 177 requires the Court to act according to equity, good conscience and substantial merits and it was not obliged to cross-examine the Claimant if his evidence was insufficient.

During the hearing, learned counsel for the Second Respondent explained from the Bar that the deponent, being based in South Korea and present in Kuala Lumpur only briefly, had insufficient time to prepare a Malay version. With respect, statements from the Bar are not evidence.

Having considered the objection, I find merit in it. The affidavit, affirmed in Kuala Lumpur in English, breaches the mandatory requirements of Order 92 rule 1 and Order 41 rule 13 ROC 2012 for affidavits affirmed within Malaysia to be in the national language. This is substantive non-compliance, not a mere irregularity curable under Order 41 rule 4 or Order 92 rule 4 ROC 2012 [See Chin Mei Koon v Soo Yah Hoi [2024] MLRHU 261; Lie Kok Keong v Tang Container & Services Sdn Bhd [2004] 1 MLJ 373]. Further, even if admitted, the affidavit advances assertions not forming part of the Industrial Court record. It is well established that judicial review is confined to the record of the tribunal at the time the impugned award was made (see: R Rama Chandran). Therefore, this Court ruled that the affidavit is inadmissible and is struck out.

Further, the Second Respondent did not cross-examine the Claimant nor did it call any witnesses. The Claimant’s evidence therefore stood wholly unchallenged. It is trite that uncontroverted evidence, if not inherently incredible, must be accepted by the court (Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan & Other Appeals [1996] 2 MLRA 212). In the circumstances, the tribunal’s conclusion that the Claimant was not a “workman”, notwithstanding the unchallenged and corroborated evidence to the contrary, is one which no reasonable tribunal, properly directing itself, could have reached.

This Court views that the issue in this proceeding is whether, in dismissing the Claimant’s case, the Industrial Court breached its duty to evaluate the evidence and erred in concluding the Claimant was not a “workman” under the contract of employment, thus committing reviewable errors of illegality, irrationality or procedural impropriety.

The Court of Appeal in Datuk Roger Tan Kor Mee & Ors v. Hayatunnisah Sulaiman [2025] 8 CLJ 718 restated that Industrial Court awards are reviewable on “illegality”, “irrationality” and “procedural impropriety”. The Federal Court in R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147 confirmed that judicial review scrutinises both process and substance and the Court of Appeal in Syarikat Kenderaan Melayu Kelantan Bhd. v. Transport Workers Union [1995] 2 CLJ 748 held that a tribunal exceeds jurisdiction by misdirecting itself in law, asking the wrong question, or omitting relevant considerations.

Here, the appointment letter dated 5 May 2019 (appointing the Claimant “Director of Production” with fixed monthly remuneration) and Sejin’s 30 May 2019 letter to AKR (naming him “Head of Production”) together with the Claimant’s oral testimony stood unrebutted. By failing to evaluate this material and by placing determinative weight on the “separate arrangement” of remuneration via AKR, the Industrial Court misapplied the legal test under section 2 of the Act in determining whether the Claimant was a “workman” in relation to the Second Respondent. Section 2 of Act 177 provides— “workman” means any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute”.

The issue in this case is the true nature of the relationship, not the payment conduit. This Court finds that the Industrial Court asked the wrong question and ignored relevant considerations. This is clearly an error of law amounting to illegality.

Further, the Second Respondent did not cross-examine or adduce evidence. Hence, the Claimant’s evidence stood unchallenged. Based on Hong Leong Equipment, uncontroverted evidence, if not inherently incredible, should be accepted. Therefore, this Court finds that the tribunal’s conclusion that the Claimant was not a “workman” in the face of such evidence is one which no reasonable tribunal properly directing itself could reach.

On procedural impropriety, this Court finds that the tribunal’s failure to grapple with unchallenged, material evidence resulting in denying the Claimant a fair consideration, amounting to breach of natural justice (see: Raja Abdul Malek v Setiausaha Suruhanjaya Pasukan Polis [1995] 1 MLJ 308).

In summary, this Court finds that the cumulative effect of these errors renders the award unsustainable. Based on the above, it is clear that the tribunal misapplied Section 2 of the Act 177 when it disregarded material evidence and reached an untenable conclusion.

This Court is mindful that judicial review is supervisory, not appellate. Nevertheless, based on the principle highlighted in R Rama Chandran, where the decision is infected by illegality, irrationality or procedural impropriety, intervention by certiorari is warranted.

Having found the award vitiated, this Court considers the following question: whether it should itself determine the Claimant’s “workman” status and the nature of dismissal, or remit everything back to the Industrial Court. This Court finds that these are issues of legal characterisation based on undisputed facts when the Second Respondent elected not to cross-examine or adduce evidence and the contemporaneous documents were uncontroverted. Hence, no further factual inquiry is required.

Based on the principle highlighted in R Rama Chandran and Datuk Roger Tan Kor Mee, this Court may, in an appropriate case, make the necessary declarations where the record is complete and facts undisputed. Therefore, this Court finds and declares that the Claimant was a “workman” within the meaning of section 2 of Act 177 and that his dismissal on 1 October 2019 was without just cause or excuse.

The Claimant, via Enclosure 10, prayed for this Court to grant reinstatement and reinstated him to his last post. Alternatively, he prayed for compensation and back wages. However, pursuant to subsection 30(1) of Act 177, remedies upon a finding of dismissal without just cause or excuse lie, in the first instance, with the Industrial Court. Subsection 30(1) Act 177 provides— “30. (1) The Court shall have power in relation to a trade dispute referred to it or in relation to a reference to it under subsection 20(3), to make an award (including an interim award) relating to all or any of the issues”.

Even with the broader supervisory reach recognised in R Rama Chandran, it, however, does not usurp the Industrial Court’s statutory discretion on remedy. The proper course is to remit for assessment of the remedy.

At that hearing on 15 October 2025, learned counsel for the Applicant submitted that this Court has jurisdiction to determine and grant compensation consequent upon the quashing of the Award. It was contended that, under Order 53 rule 2 read together with Order 43 rule 2(3) ROC 2012 and section 30(5) of the Industrial Relations Act 1967, the Court is empowered to assess and award compensation directly without remitting the matter to the Industrial Court.

In essence, the Applicant sought compensation in line with the standard principles applied by the Industrial Court under section 30(5) of the Industrial Relations Act 1967. The Applicant invited the Court to award—

back wages calculated at RM20,000.00 per month together with a fixed allowance of RM500.00, for a period of 24 months, amounting to RM492,000.00;

avoluntary deduction of RM20,000.00, leaving a balance of RM472,000.00; and

additional compensation of RM50,000.00, described as punitive or aggravated damages, in view of the Respondent’s conduct in—

dismissing the Applicant abruptly without prior notice; and

(ii) refusing to provide or entertain any notice of explanation.

It was further submitted that these reliefs are consistent with the authorities of Fatimah Noordin v. Carsem (M) Sdn Bhd & Anor [2025] 4 MLRA 56 and Chan Phaik Leng v. Mahkamah Perusahaan Malaysia & Anor [2019] 5 MLRH 107, the Court of Appeal and the High Court, upon allowing judicial review, proceeded to assess compensation without remitting the matter to the Industrial Court.

The Applicant accordingly sought compensation as detailed in their written submissions, whereas the Second Respondent did not advance any separate arguments on quantum.

Having considered the submissions of both parties, the Court is satisfied that it has jurisdiction to determine the question of compensation.

The jurisdiction of this Court arises under Order 53 rule 2 ROC 2012, which expressly empowers the Court, upon granting an order of certiorari, to issue such further or other relief as it deems just. This power is further supported by Order 43 rule 2(3) ROC 2012, which enables the Court to make all necessary consequential orders to give effect to its judgment. In the context of employment disputes under the Industrial Relations Act 1967 [Act 177], such consequential reliefs must be guided by the principles set out in subsection 30(5) of Act 177, namely, that the Court is to act according to equity, good conscience and the substantial merits of the case.

The Court finds that the evidence before the Industrial Court was complete and uncontroverted. The only error that rendered the Award liable to be quashed was a misdirection in law as to the Applicant’s status as a workman. In such circumstances and consistent with the authorities of Chan Phaik Leng and Fatimah Noordin, it would serve no purpose to remit the matter to the Industrial Court. The Court is therefore entitled to, and indeed should, assess compensation directly.

The Court further finds that reinstatement would not be a practical or conducive remedy in the circumstances of this case. The employment relationship between the parties has effectively come to an end and the project in question has long been completed. Moreover, the Respondent is a foreign company operating through a Malaysian associate, and the passage of time since the dismissal renders reinstatement unrealistic. Accordingly, compensation in lieu of reinstatement represents the fairest and most equitable solution, consistent with the principles of subsection 30(5) of Act 177 and the authorities of Chan Phaik Leng and Fatimah Noordin.

In assessing the appropriate amount, the Court is guided by the established Industrial Court formula for cases of dismissal without just cause or excuse, namely—

back wages capped at 24 months, and

compensation in lieu of reinstatement, to be determined according to equity and good conscience.

The Applicant’s last drawn salary was RM20,000.00 per month with a fixed allowance of RM500.00, bringing the total to RM20,500.00 Applying the 24-month cap yields RM492,000.00, from which the Applicant proposed a deduction of RM20,000.00. The Court accepts this computation as fair and consistent with Industrial Court practice.

In addition, the Court accepts that the Respondent’s conduct, particularly the abrupt termination of the Applicant’s engagement without notice and the refusal to entertain any explanation, warrants an additional sum of RM 50,000 as equitable compensation reflecting the hardship and distress suffered. This award is not punitive in nature but rather compensatory, made pursuant to the equitable discretion under subsection 30(5) Act 177.

For the reasons above, the Claimant's application is allowed. The Court hereby makes the following orders—

an order of certiorari to quash Award No. 1200 of 2024 dated 12

a declaration that the Claimant was a “workman” within the meaning of section 2 of Act 177 at all material times;

a declaration that the Claimant’s dismissal on 1 October 2019 was without just cause or excuse;

compensation of RM472,000.00 as back wages and RM50,000.00 as additional equitable compensation; and

costs of RM10,000.00.00 subject to the allocator. Dated : 1 October 2025 Dr. Noradura Binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Applicant’s Solicitor : Tetuan R. Jayabalan Respondant’s Solicitor : Tetuan Azlan Bohari & Co.