Risda Fleet Sdn Bhd v MD Asrul Bin Abd Hamid (JB-24-10-04/2023)

MD ASRUL BIN ABD HAMID (No. K/P: 800724-01-6047)

MOHAMAD EZAM BIN MOHAMAD March 3, 2024 2 (No. K/P: 760530-01-5667)

MOHD YUSRI BIN HAMIN (No. K/P: 941120-01-5245)

MOHAMAD EZUAN BIN IDRIS (No. K/P: 911201-01-5311) … RESPONDEN-RESPONDEN (KES SAMAN KETUA PENGARAH TENAGA KERJA NO. KBR/SEGT/SEGT/2021/0058 DI ANTARA MD ASRUL BIN ABD HAMID DAN 7 ORANG LAIN … PENGADU DAN RISDA FLEET SDN BHD … DEFENDAN) CORAM: SURIA KUMAR A/L DURAIRAJ JOHNSON PAUL JUDICIAL COMMISSIONER  GROUNDS OF JUDGEMENT  March 3, 2024 3 INTRODUCTION [1] Vide this Originating Summons, Plaintiff applies for an extension of time to file and serve its Notice of Appeal against the decision of the Labour Court on 07.12.2021. [2] The Defendants opposed the application. [3] I dismissed the application on 03.3.2024 and hereby give my reasons for doing so. BACKGROUND FACTS [4] The Plaintiff was the employer whereas the Defendants were the employees/complainants in a Labour Court case Summons No. KBR/SEGT/SEGT/2021/0058. [5] At the conclusion of the Labour Court proceeding, Defendants were awarded a total sum of RM50,350.00 to be paid by the Plaintiff. [6] The award sum RM50,350.00 is in respect of “komisyen angkut barang” due to the Defendants as employees. [7] The Plaintiff being dissatisfied with the said award, lodged an Appeal with the High Court vide Civil Appeal No. JB-16A-2-12/2021. [8] When the Appeal came up for hearing before me on 30.10.2022, the Defendants raised several preliminary objections. [9] The said preliminary objections raised by the Defendants were:- March 3, 2024 4 a. Failure to serve a sealed copy of the Notice of Appeal on the Defendants. b. The Labour Court case number was wrongly stated on the title of the Notice of Appeal. c. Failure to serve the Notice of Appeal on the 2nd, 3rd and 4th Defendants. d. The Appeal should only concern four (4) Defendants since three (3) other Defendants withdrew their claim in the Labour Court. [10] Apart from these objections, the Court also noted that Plaintiff did not cite the names of the 2nd, 3rd and 4th Defendants as Respondents in the title of their Notice of Appeal. [11] However, the Plaintiff’s version is that when their Appeal came for hearing, this Court purportedly raised the issue concerning the Record of Appeal being incomplete due to the non-inclusion of the Labour Court’s notes of evidence. [12] This prompted the Plaintiff to withdraw their Appeal with the liberty to refile to ensure the complete set of cause papers are filed by way of a Record of Appeal. [13] Upon taking into consideration the fact that the Notice of Appeal did not cite the names of the 2nd, 3rd and 4th Defendants as Respondents and no Notice of Appeal was served on them, this Court granted March 3, 2024 5 Plaintiff liberty to refile since there was no Appeal pending against these Defendants in the first place. [14] The Plaintiff’s Appeal was then struck out with liberty to refile. [15] It must be understood that the liberty to refile the Notice of Appeal was only given in this context on condition that the Plaintiff is to convince the Court that they can do so since they will be out of time. [16] More than five (5) months later, the Plaintiff filed this application seeking an extension of time to file and serve their Notice of Appeal against the award of the Labour Court. ANALYSIS AND FINDING [17] According to the Plaintiff, they are 428 days out of time and this delay is reasonable considering their Notice of Appeal dated 22.12.2021 only came up for hearing on 30.10.2022. [18] Plaintiff further contends that the Defendants know that Plaintiff intends to proceed with the Appeal and as such the Defendants will not suffer any prejudice and can be compensated by cost for the delay. [19] In addition, according to the Plaintiff, if the extension of time is not granted, the substratum of the Plaintiff’s Appeal will be destroyed, they will suffer irreparable damage and their Appeal will be rendered nugatory. March 3, 2024 6 [20] On the other hand, the Defendants oppose this application vehemently on the ground that if the extension of time is granted, they will be prejudiced. Further, Defendants submit that there is no explanation for the delay and there are no averments on the merits of the Plaintiff’s Appeal in their Affidavit in Support. [21] Lastly, Defendants submit that granting an extension of time to Plaintiff is tantamount to the Plaintiff getting a second bite of the cherry i.e. a chance to file the appeal a second time. [22] In support of their application for the extension, the Plaintiff quoted the decisions in Badrisahrunah Bt Nawang & Satu Lagi Lwn Darjah Singh A/L Mukhtar Singh & Satu Lagi [2008] 5 MLJ 893, Ku Azahar Bin Ku Abdul Razak V Che Mansor Bin Zun [2015] MLJU 909 and IBS Bookservice AG Basel (Assignee of Pacific Book Service Ltd) v Mawaddah Enterprise Sdn Bhd [2008] 3 MLJ 192 which had discussed on the Courts power to grant an extension of time, how the discretion is to be exercised and the factors to be considered. [23] Whereas, the Defendants rely heavily on the Court of Appeal’s decision in Bala Subramaniam Sengodan v Ahmad Sidique Abdul Latif & Anor Appeal [2015] 5 CLJ 623 wherein His Lordship Zawawi Salleh JCA summarised the principles for granting an extension of time in respect of a notice of appeal filed out of time. According to His Lordship:- “(iii) in exercising its discretion, the court will consider:-

The length of the delay

The reasons for the delay March 3, 2024 7

The chances of the appeal succeeding if the time for appealing is extended and

The degree of prejudice to the respondent if the application is granted.” [24] In addition to the above authority, the Defendants also quoted the decisions in Ong Guan Teck & Ors v Hijjas Kasturi [1981] 1 MLRH 237, Saeed U Khan v Lee Kok Hooi [2000] 2 MLRH 817, Standard Chartered Bank Malaysia Berhad v Khee San Food Industries Sdn Bhd & Anor [2021] MLRHU 906 that dealt with the factors to be considered in granting an extension of time. [25] Be that as it may, it is my considered view that the factors to be considered in granting an extension of time are trite and the exercise of discretion will depend on the facts of each case. [26] It is my finding that the Notice of Appeal appealing against the award of the Labour Court was never served on the 2nd, 3rd and 4th Defendants by the Plaintiff. [27] Hence in respect of these Defendants, the total number of 428 days of delay from the date of the decision of the Labour Court is a lengthy delay. [28] Whereas against the 1st Defendant, although Plaintiff had filed this application five (5) months after withdrawing their appeal on 30.10.2022, in essence, the extension of time that Plaintiff is seeking against the 1st Defendant is also for 428 days since Plaintiff withdrew their Notice of Appeal against the 1st Defendant on 30.10.2022 that was filed within the time. March 3, 2024 8 [29] In my judgement the delay of 428 days is inordinate and lengthy. Furthermore, there are no good and cogent reasons given by the Plaintiff in their Affidavit explaining this delay. [30] The Plaintiff’s explanation in their Affidavit in Support by setting out the chronology of events from the date of the award of the Labour Court on 9.12.2021 until the date when the Defendants’ preliminary objections were heard by the High Court on 30.10.2022 without alluding to any reasons why the names of the 2nd, 3rd and 4th Defendants were not cited in their Notice of Appeal and no Notice of Appeal served on these Defendants is insufficient. [31] In my judgment, in the first place, the Plaintiff should have named the 2nd, 3rd and 4th Defendants in their Notice of Appeal as they have correctly done so in this Originating Summons and have it served on the Defendants. [32] Further, instead of withdrawing the Appeal, the Plaintiff could have amended the title to their Notice of Appeal to add the 2nd, 3rd and 4th Defendants as Respondents since it was filed within time and thereafter sought an extension of time to serve the Notice of Appeal on these Defendants. [33] Next, in respect of the five (5) months delay in filing this application for an extension of time after withdrawing the Notice of Appeal on 30.10.2022, according to the Plaintiff’s solicitors they needed time to obtain instruction from the Plaintiff. They say that the Plaintiff’s board of directors needed to decide at a meeting and thereafter the board’s decision had to be referred to Risda Holdings Sdn. Bhd. March 3, 2024 9 headquarters for approval concerning the instruction on filing this application. [34] It is my finding that this is not a good explanation for the five (5) months delay in filing this application for an extension of time. [35] In addition, I find that the Plaintiff failed to disclose any merits of their appeal in their Affidavits. There is also no mention of their appeal succeeding if the time for appealing is extended. [36] Lastly, I also do not find any supporting documents produced by the Plaintiff in their Affidavit in Support. Even the award of the Labour Court is not produced. [37] Finally, given the delay is for 428 days and bearing in mind the award is in respect of “komisyen angkut barang” due to the Defendants, if an extension for this long delay is granted, it is prejudicial to the Defendants as employees. [38] In the circumstance, Plaintiff has failed to fulfil the requirements for this Court to exercise its discretion in their favour to grant an extension of time to file and serve the Notice of Appeal against the decision of the Labour Court on 9.12.2021. The issue concerning the non-inclusion of notes of evidence in the Record of Appeal [39] I now come to the reasons proferred by the Plaintiff for withdrawing their Notice of Appeal which was the non-inclusion of the notes evidence from the Labour Court in their Record of Appeal. March 3, 2024 10 [40] I have perused the notes of proceeding for the hearing of the Civil Appeal No. JB-16A-2-12/2021 on 30.10.2022. I reproduce below what exactly transpired concerning the non-inclusion of the notes of evidence in the Record of Appeal:- “Mahkamah: Apa kandungan rekod rayuan? Beritahu? En. Firdaus: Yang pertama adalah aduan, nota-nota keterangan, alasan keputusan dan perintah dan seterusnya notis rayuan, Yang Arif. Mahkamah: Eksibit macam mana? En. Firdaus: There is no exhibit. That is one of the reasons we are appealing the decision because none of the exhibit has been accepted examine during the trial in Mahkamah Buruh. Mahkamah: Ada ditanda? En. Firdaus: Tidak ditanda kerana kebanyakkan eksibit dicabar dan tidak dibuktikan pembuktiannya semasa di peringkat JTK. Mahkamah: Encik Farin, adakah penuntut diwakili peguam masa itu? En. Farin: Untuk peringkat awal penuntut tidak diwakili peguam, Yang Arif. Mahkamah: Pasal eksibit ini macam mana? Saya tengok nota keterangan ada kata eksibit? En. Farin: Yang Arif, pihak perayu mengajukan pada Seksyen 77 Akta Kerja dimana pihak responden-responden percaya aturan yang betul sebenarnya adalah Aturan 55 yang March 3, 2024 11 mana ia adalah prosedur untuk rayuan daripada Mahkamah Rendah ke Mahkamah Tinggi. Oleh itu di dalam Aturan 55 ada menyatakan kaedah serahan kepada setiap responden-responden. Mahkamah: No Encik Farin, about the exhibit? En. Farin: Untuk eksibit juga dibawah Aturan 55. Mahkamah: Ada atau tidak? Memang wujud atau tidak? En. Farin: Berdasarkan rekod rayuan tiada eksibit dinyatakan yang mana. Mahkamah: Memang tidak ada. Encik Firdaus, siapa wakili company? Encik Firdaus yang wakili? En. Firdaus: Benar, kami yang mewakili. Mahkamah: Kenapa eksibit ditandakan? En. Firdaus: Eksibit ditandakan? Mahkamah: Bukan? En. Firdaus: Tidak ditandakan, Yang Arif. Kesemua eksibit ditolak. Tidak ada sebarang penerimaan eksibit semasa peringkat perbicaraan Mahkamah Buruh. Mahkamah: Semua ditolak? En. Firdaus: Semua ditolak, Yang Arif. Sedikit insight, semasa di peringkat Mahkamah Buruh. Mahkamah: Buku log ditolak. March 3, 2024 12 En. Firdaus: Benar. Mahkamah: Yang lain? En. Firdaus: Kerana pekerja-pekerja hanya mengeksibitkan keterangan penyata kewangan, bank statement, transaction dan buku log sahaja. Itu sahaja keterangan mereka. Mahkamah: P1 apa? En. Firdaus: Slip gaji. Mahkamah: Itu pun tolak? En. Firdaus: Sebab bukan merupakan dokumen rasmi. Mahkamah: Saya tangguh sebentar. Encik Firdaus tunjukkan nota keterangan dimana kata semua tolak. Mahkamah nak tahu. En. Firdaus: Baik Yang Arif. Mahkamah: Mahkamah tangguh sebentar. Tarikh : 30 October 2023

2.40 petang Kes bersidang semula Mahkamah: Parties as before. En. Firdaus: Yes, Yang Arif, dengan izin Yang Arif, pihak-pihak seperti sebelum ini. Yang Arif, ada perkembangan terbaru. Kami telah mendapat arahan daripada anak guam kami untuk March 3, 2024 13 menarik balik rayuan ini dengan kebebasan untuk memfailkan semula dan kami mohon supaya tiada perintah terhadap kos.” [41] Therefore, there is no truth in what Plaintiff has averred in paragraph 6 (Item No. 9) of their Affidavit in Support and paragraphs 15 and 16 of their Affidavit in Reply concerning the non-inclusion of the notes of evidence purportedly raised by the Court. [42] What transpired was Court had asked counsel for the Plaintiff to show where was it stated in the notes of evidence that the admissibility of all the Plaintiff’s exhibits was rejected by the Labour Court and the matter stood down for the counsel to highlight the relevant part of the notes of evidence. However, counsel for the Plaintiff came back in the afternoon and withdrew the appeal. [43] In this circumstance, I do not find any merits in this reason proffered by the Plaintiff seeking an extension of time to file and serve the Notice of Appeal. [44] In the foregoing, the Plaintiff’s application has no merit and is hereby dismissed with cost. Dated this 3rd March 2024 at Muar in the State of Johore. t.t. SURIA KUMAR DJ PAUL Judicial Commissioner High Court of Malaya Muar Johore Darul Ta’zim March 3, 2024 14 Counsels: For the Plaintiff : Mohd Firdaus Bin Mohamood For the Defendants : Mohd Radzi Bin Yatiman Solicitors: For the Plaintiff Messrs Mood & Co. Advocates & Solicitors 10-25, Avenue Crest Jalan Jubli Perak 22/1 Seksyen 22 40300 Shah Alam Selangor [Ref. No. : MC.JTK.2021/RISDAFLEET] For the Defendants Messrs Rahim & Lawrnee Advocates & Solicitors No. 124, Tingkat 1 Jalan Sia Her Yam 85000 Segamat Johor [Ref. No. : RL/CA 2012/22/LG/mi] March 3, 2024 15 Hearing Date : 27th November 2023 Decision Date : 3rd March 2024