Sandpit N Quarry Sdn Bhd v Mathura A/P Ganeson (BA-16-74-09/2025)

This is the Appellant’s appeal against the decision of the Director General of Manpower (DGM) dated 8.8.2025 directing the Appellant to pay the Respondent her salary for 9 days annual leave and maternity allowance in the sum of RM15,268.69. S/N 5yeLH/OTu0uAu5aggJQs5w

After careful consideration of the cause papers and the submission of parties, this Court dismissed the appeal. The following are the grounds for that decision. Background facts

The Appellant appointed the Respondent as a Full Stack Developer with a basic monthly of RM4,200.00 on 4.7.2023. The Respondent was placed on a 3 to 6-month probationary period which was extended due to issues regarding her punctuality and work performance. Despite being placed under a Performance Improvement Plan (PIP) and later a revised PIP, the Respondent failed to meet the required standards. As a result, the Appellant terminated the Respondent on 4.10.2024 via a Mutual Separation Agreement (Mutual Agreement). The Respondent was paid severance benefits up to the termination date which included all accrued benefits which included a month’s salary plus payment for an additional 4 days.

The Mutual Agreement also provided – “This Agreement constitutes the entire understanding between the parties regarding the termination of employment and supersedes all prior agreements, whether written or oral, concerning the same subject matter.” S/N 5yeLH/OTu0uAu5aggJQs5w

Despite this Mutual Agreement, the Respondent lodged a representation to the Director General of Industrial Relations (DGIR) seeking reinstatement under section 20 Industrial Relations Act 1967 (Act 177). A conciliation meeting resulted in a settlement vide a Memorandum of Agreement dated 25.11.2024 (Settlement). The following are the key terms of the Settlement – “Majikan bersetuju membayar dan Responden bersetuju menerima … sebagai penyelesaian penuh dan muktamad terhadap representasi Perayu di bawah Seksyen 20(1) Akta Perhubungan Perusahaan 1967. Perayu dan Majikan bersetuju untuk tidak membuat apa-apa tuntutan antara satu sama lain yang berkaitan dengan representasi Perayu.”

Sometime in April 2025, the Respondent filed yet another claim; this time before the DGM, seeking payment for annual leave and maternity benefits.

In deciding the Respondent’s claim, the DGM asked and answered 2 questions –

whether the Respondent was the Appellant’s employee; and

(ii) whether she was entitled to the benefits. S/N 5yeLH/OTu0uAu5aggJQs5w

The DGM affirmed that the Respondent was the Appellant’s employee. Relying on section 60E(a) and section 32(1)(c) Employment Act 1955 (Act 265), the DGM ruled that the Respondent was entitled to 9 days annual leave and 98 days maternity leave.

Regarding the Settlement, the DGM held that the Respondent was not precluded from making a further claim to them. This was because the Respondent’s claim to the DGIR pertained solely to the issue of reinstatement and not her statutory benefits as an employee.

Briefly, the Appellant contended that the DGM erred in fact and law in allowing the Respondent’s claim as she failed to consider the that the Settlement was a full and final settlement of her claims against them. The Appellant argued that the Respondent had the opportunity and should have ventilated all her issue regarding her employment before the DGIR.

The Appellant relies on Philip Phang Kin Ming & Anor v. M Jets International Sdn Bhd [2026] MLJU 14 wherein Evrol Mariette Peters JCA held at para [16] – “The gist of this Appeal was whether the learned High Court Judge was correct in interpreting section 69A of the S/N 5yeLH/OTu0uAu5aggJQs5w Employment Act to oust the Labour Office’s jurisdiction over a pure wage claim, thereby denying the Appellants a statutory remedy for an accrued debt. Section 69A of the Employment Act reads: … Section 69A of the Employment Act acts as a clear jurisdictional bar, stipulating that the Director General shall not intervene in any dispute which is pending before the Industrial Court. … The ouster of the Labour Office’s jurisdiction serves the critical legislative purpose of preventing a duplicity of proceedings and avoiding the risk of conflicting decisions. Allowing parallel adjudication in the Labour Office and the Industrial Court on factually overlapping issues would undermine the coherence and finality of the dispute resolution process. … The Industrial Court is vested with wide remedial powers under the Industrial Relations Act, encompassing the award of back wages, compensation for unfair dismissal, and consideration of matters related to suspension. It was thus the appropriate and comprehensive forum to adjudicate all interconnected issues, including the validity of the suspensions, the alleged misconduct, and any resultant wage entitlements. (John Driscoll v. Teleplan Technology Services Sdn Bhd [2012] 10 MLJ 267 at 275). S/N 5yeLH/OTu0uAu5aggJQs5w

The Appellant maintained that the Settlement was final and the Respondent was bound by the same.

The Respondent on the other hand submitted that DGM was correct to allow her claim. She contended that her claim before the DGM was under section 69 Act 265 which was limited to claims for unpaid wages or other payments. The Respondent’s claim before the DGIR was under section 20 Act 177 was limited to the issue of her reinstatement. The proceedings are distinct and she was not estopped from making the claim before the DGM

Philip Phang (supra) did not apply in her situation as the proceedings before the DGIR had already been concluded. There was no possibility of the authorities making conflicting decisions. Principles of law

Section 77 Act 265 provides that the procedure for an appeal to the High Court is the same procedure as an appeal from the Sessions Court.

The general principles of law in respect of the appellate jurisdiction of the High Court hearing appeals from the Subordinate Court is as pronounced in China Airlines Ltd v. Maltran Air Corp Sdn Bhd (formerly known as Maltran Air S/N 5yeLH/OTu0uAu5aggJQs5w Services Corp Sdn Bhd and another appeal [1996] 2 MLJ 517 at 527.

In UMW Motor Sdn Bhd & Anor v. Allan Chong Teck Hin [2021] 5 CLJ 193; [2021] 3 MLJ 107, Supang Lian JCA elucidated the principles of appellate intervention at 200 as follows – “Foremost on our minds are the two tests, namely, “plainly wrong” test and “insufficient judicial appreciation of evidence” test for appellate interference in a subordinate court’s finding. In respect of the two tests, the Court of Appeal held as follows in Lee Ing Chin Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97 at pp. 98 to 99:

Generally, an appellate court will not intervene unless the trial court was shown to be plainly wrong in arriving at its decision or where there had been no or insufficient judicial appreciation of the evidence. Judicial appreciation of evidence meant that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. Where contemporaneous documents existed, he must test the oral evidence of a witness against these. He must also S/N 5yeLH/OTu0uAu5aggJQs5w test the evidence of a particular witness against these. He must also test the evidence of a witness against the probabilities of the case. The principle central to appellate interference is that a decision arrived at by a trial court without judicial appreciation of the evidence may be set aside on appeal. The Court of Appeal has reiterated in Ong Leong Chiou & Anor v. Keller (M) Sdn Bhd & Ors And Another Appeal [2019] 1 LNS 26; [2019] 3 MLRA 322 at p. 329 that: [25] We are mindful of the limited role of the appellate court in relation to the findings of facts made by the court of first instance. The general principle is that the conclusion of a trial judge is a finding of fact on the oral evidence based on the demeanour and credibility of the witness before him or her. Generally, such finding ought not be disturbed unless the appellate court is convinced that it is plainly wrong. It would not be sufficient to warrant an appellate interference merely because the appellate court entertains doubt whether such finding is right (See: Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 1 MLRA 95. Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 2 MLRA 1). In Mohamed Abdullah v. Chah Hea Seng [1980] 1 LNS 48, the Federal Court held: The decision of the learned Judge was clearly not a specific finding of fact but a finding of facts which are really inferences drawn from facts specifically found, and on the principles enunciated in Benmax v. Austin Motor Co. Ltd. S/N 5yeLH/OTu0uAu5aggJQs5w [1955] AC 370, we feel more at liberty to form an independent opinion on the conclusion which should reasonably be drawn.” Findings

This Court is of the view that the DGM was correct to disregard the terms of the Settlement. It was not full and final settlement of the Respondent’s statutory claims against the Appellant.

The terms of Settlement recorded before the DGIR is clear; the settlement was only final in respect of the Respondent’s claim for reinstatement. She had not waiver her right to make other statutory claims against the Appellant.

It cannot be said that the Appellant was taken by surprise when the Respondent made a further claim against them. The Appellant knew she was pregnant during her employment with them and the Respondent had raised the issue of her maternity benefits before the DGIR.

If the Appellant had intended the Settlement before the DGIR to be a full and final settlement of all the Respondent’s claim against them, then the Settlement should have been drafted to reflect this. S/N 5yeLH/OTu0uAu5aggJQs5w

In Philip Phang (supra), the Court of Appeal addressed the issue of "claim splitting" between the DGM and the DGIR. The Court of Appeal signalled that allowing an employee to pursue concurrent or parallel claims for statutory benefits raised the issue of duplicity of proceedings and the risk of conflicting decisions.

The core rationale in Philip Phang is to prevent a worker from seeking to litigate the fairness of his termination and his entitlement to benefits before two different forums. However, this Court is of the view that the dicta does not apply to the present appeal.

The Respondent’s claim before the DGM is a statutory claim for maternity benefits. This is vested statutory right which the Appellant is liable to pay as soon as the eligibility criteria are met regardless of the status of her termination.

It is true that the Respondent filed separate claims first before the DGIR and the DGM but there were not concurrent claims against the Appellant. There was no possibility that the authorities would come to different in consistent decisions as her claims before them were under different legislations. S/N 5yeLH/OTu0uAu5aggJQs5w S/N 5yeLH/OTu0uAu5aggJQs5w