SCK Marketing Sdn Bhd v KETUA PENGARAH BURUH (BA-25-114-07/2024)

1.

LIM CHOON HUA (No K/P: 810517-13-6010) ... RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT (Enclosure 19)

On 9.10.2024, the Applicant was granted leave to file an application for judicial review against the Respondents.

Enclosure 19 is the Applicant’ substantive application for an order of certiorari to quash the First Respondent’s decision dated 27.3.2024 in claim No: TTPM-B-(P)-606-2022 (Award) wherein the 2nd Respondents’ claim was allowed.

After considering the cause papers and submissions by the parties, this Court dismissed the Applicant’s application. The following are the reasons for the decision. Background facts

The Applicant appointed the 2nd Respondent as an Account Executive with a month salary of RM4,000.00. Upon confirmation, her salary was increased by another RM500.00.

The Applicant was not satisfied with her work performance and terminated the 2nd Respondent on vide letter dated 8.1.2024 with immediate effect. After negotiating with the 2nd Respondent, the Applicant revised their termination and gave her 2 months-notice instead and set 11.3.2024 as the 2nd Respondent’s last working day. The Applicant then issued letter dated 12.1.2024 to confirm this.

The 2nd Respondent did not attend work on 10.1.2024 and did not take calls from the Applicant’s other employees. Due to her continued absence from work, the Applicant terminated the 2nd Respondent once again on 19.1.2024 with immediate effect.

The 2nd Respondent lodged a complaint with the Director General of Manpower (DGM) vide case no: KBR/11001/2024/0129 claiming arrears salary for 9 working days in January 2024 and salary in lieu of 2 months’ notice dated RM10,306.45.

The Applicant attended before the DGM and was informed a notice of the next hearing date would be sent out soon. The Applicant did not receive any notice but was suddenly served with the DGM’s order dated 24.4.2024 wherein they were directed to pay the 2nd Respondent RM9,000.00.

They only received the DGM’s notice dated 1.4.2024 on 2.5.2024 and allege that the notice was only sent out on 24.4.2024. The Applicant maintains that the proceedings before the DGM was contrary to procedure and instituted judicial review proceedings.

Their complaint rests on the allegation that they were not informed of the hearing date and therefore their right to a fair hearing has been compromised. The DGM’s decision in that proceeding is therefore unlawful, null and void. The 2nd Respondent

The 2nd Respondent argued that the DGM complied with basic rules of natural justice and had adhered to the procedure in Act 265 in arriving at her decision. As such the decision was valid.

She also challenged the Applicant’s mode of instituting this application. She argued that this is in fact an appeal against the decision of the DGM and should rightly have been brought by way of an appeal under section 77 Employment Act 1955 (Act 265). She cited Tasputra Perkim v. Ketua Pengarah Jabatan Kerja Semenanjung Malaysia & Ors [[2023] MLJU 145 wherein the High Court dismissed a similar application.

This Applicant’s application for judicial review involves a challenge to the DGM’s decision on the grounds that she failed to perform a statutory duty by failing to inform the parties of the hearing date. The Applicant argues that the DGM’s omission created a right for them to seek judicial review based on procedural impropriety.

The issue of this Court’s determination is whether this failure is a fundamental defect in the decision-making process or a ground that should have been ventilated through the specific appeal machinery provided by Parliament.

Section 77 Act 265 concerns appeals against the GGM’s order to the High Court and reads – “(1) If any person whose financial interests are affected is dissatisfied with the decision or order of the Director General under section 69, 69F or 73, or subsection 81D(4) such person may appeal to the High Court.

Subject to any rules made under section 4 of the Subordinate Court Rules Act 1955 [Act 55], the procedure in an appeal to the High Court shall be the procedure in a civil appeal from a Sessions Court with such modifications as the circumstances may require.”

It is a trite principle that an aggrieved party must first exhaust the internal or statutory remedies provided by the specific Act before resorting to judicial review. Section 77 Act 265 provides a clear and convenient remedy for parties dissatisfied with a DGM order. Where a specific statutory machinery for appeal exists, an aggrieved party must utilize that mode rather than resorting to Judicial Review.

In Tasputra Perkim (supra), the High Court dismissed a similar judicial review application to quash the order of the DGM. Ahmad Kamal Md Shahid J (as His Lordship then was) held that a judicial review application is unsustainable if an applicant fails to exhaust the specific, mandatory appeal process provided by legislation. In that case, the applicant bypassed the statutory appeal mechanism under section 77 Act 265.

His Lordship emphasized that “to ignore the specific appeal machinery under Act 265 and replace it with judicial review would be a mockery of the appeal provisions under Act 265 and would render the Act of Parliament to be in vain.” His Lordship ruled that the failure to exhaust the domestic remedy under section 77 Act 265 is a bar for a judicial review proceedings.

His Lordship also cited several precedents from the Federal Court and the Court of Appeal in support of his findings. This included Robin Tan Peng Heng @ Muhamad Rizal bin Abdullah (suing as public officer at Penang Turf club) v. Ketua Pengarah Kesatuan Sekerja Malaysia & Anor [2011] 2 MLJ 457; [2010] 9 CLJ 505; [2010] 2 MLRA 571 wherein the Federal Court was presented with 2 questions of law included whether the existence of a statutory appeal procedure/alternative remedy is a bar to judicial review or declaratory reliefs. In essence, the Federal Court held that legal remedies cannot be used to circumvent established legislative procedures, reinforcing that judicial review is strictly for oversight rather than acting as a direct appeal.

In the present case, the Applicant’s complaint that there hearing date was not communicated is a grievance relating to the conduct of the case and the eventual order made. This Court is of the view that such a complaint should be addressed on its merits in an appeal under section 77 Act 265, rather than a challenge to the legality of the decision-making process itself by way of judicial review proceedings.

Under the doctrine of stare decisis, the legal principles established in these authorities bind this Court. This Court agrees that bypassing this statutory mechanism in favour of judicial review proceedings would undermine the framework established by Parliament and render the legislative intent of Act 465 nugatory.

This Court is also of the view that a failure to adhere to the procedure in section 77 Act 265 is not a mere technical non-compliance. It is a fatal defect and goes to the root of this Court to hear the application.

The DGM’s decision is dated 27.3.2024 and this judicial review application was filed on 22.7.2024. This timeline sits significantly outside the 14-day limited stipulated under O.55A Rules of Court 2012.

The Court is of the view that the Applicant’s application for judicial review is a back door attempt to resurrect an appeal that has long since lapsed.