The applicant’s salary was RM12,320.00 in August, September and October 2020 and RM8,000.00 in November and December 2020. From January 2021, the applicant’s salary was reduced to RM2,000.00. [5] A virtual Townhall Meeting was held on 15.12.2020 whereby the second respondent informed employees of a furlough exercise where affected employees will be placed on furlough with a 75% salary reduction. [6] The applicant stated he was disagreeable to the furlough. Nonetheless, the second respondent had insisted the applicant be placed on the furlough. On 28.12.2020 the second respondent informed the applicant that the applicant would be placed on furlough from 1.1.2021 until 31.3.2021. On 30.12.2020 the applicant was informed that the had 15 days of accumulated leave to carry over to 2021. [7] The applicant on 19.1.2021, informed the second respondent he was unable to accept the terms of the furlough. On 22.1.2021, the applicant submitted his resignation through a letter dated 22.1.2021. The letter was emailed to the Director Of Flight Operations of the second respondent. The applicant requested the second respondent waive his training and buyout bond. [8] On 27.1.2021, the applicant requested the second respondent to waive the applicant’s notice period which was to end on 21.4.2021. Vide a letter dated 30.1.2021, the second respondent agreed to waive the applicant’s notice period from 1.3.2021 to 21.4.2021. [9] The applicant claimed to have been constructively dismissed, and filed a representation to the Industrial Relations Department pursuant to subsection 20(1) of the Industrial Relations Act 1967 on 11.5.2021. [10] Conciliation meetings between the applicant and the second respondent were held on 27.5.2021 via zoom. On 6.9.2021, the applicant received a letter dated 26.8.2021 whereby the first respondent had decided the representation of the applicant’s dismissal would not be referred to the Industrial Court as the applicant’s representation is out of time. This decision of the second respondent that the applicant’s representation is out of time is the subject of this application for judicial review. Principles relating to Judicial Review [11] Prior to considering this application for judicial review, this court would be minded to ponder over the principles relating to judicial review. In the case of Ranjit Kaur S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629, Raus Sharif FCJ stated the following: “[15] … Historically, judicial review was only concerned with the decision making process where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroads into this field of administrative law. Rama Chandran is the mother of all those cases. The Federal Court in a landmark decision has held that the decision of inferior tribunals may be reviewed on the grounds of "illegality", "irrationality" and possibly "proportionality" which permits the courts to scrutinise the decision not only for process but also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds. [16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts' liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Perangsang Selangor Bhd v. Zaid Mohd Noh [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate.” [12] The Court of Appeal in the case of Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2008] 6 CLJ 473 had elaborated on judicial review as reproduced below: “[15] Judicial review is not concerned with reviewing the merits of the decision but rather the decision making process itself. Lord Hailsham of St. Marylebone LC in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155 at 1160, [1982] 3 All ER 141 at 143 puts it politely in this manner: [16] The legal positions in England, Hong Kong and Malaysia have always been that in judicial review proceedings, the court's sole function is simply to scrutinise the decision-making process and not to question the decision itself. …” Analysis and Findings [13] Having regard to the principles relating to judicial review, this court will proceed to examine this application for judicial review. [14] The facts of this case disclose that applicant claimed to have been constructively dismissed, and filed a representation to the Industrial Relations Department pursuant to subsection 20(1) of the Industrial Relations Act 1967 on 11 .5.2021. [15] Subsection 20(1) of the Industrial Relations Act 1967 reads: “20. (1) Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed.” [Emphasis added] [16] Conciliation meetings between the applicant and the second respondent were held on 27.5.2021 via zoom. On 6.9.2021, the applicant received a letter dated 26.8.2021 whereby the first respondent had decided the representation of the applicant’s dismissal would not be referred to the Industrial Court as the applicant’s representation is out of time. [17] The facts of this case reveal that the applicant stated he was disagreeable to the furlough. Nonetheless, the second respondent had insisted the applicant be placed on the furlough. On 28.12.2020 the second respondent informed the applicant that the applicant would be placed on furlough from 1.1.2021 until 31.3.2021. On 30.12.2020 the applicant was informed that the had 15 days of accumulated leave to carry over to 2021. [18] On 19.1.2021, the applicant informed the second respondent he was unable to accept the terms of the furlough. On 22.1.2021, the applicant submitted his resignation through a letter dated 22.1.2021. This letter was emailed to the Director of Flight Operations of the second respondent. The applicant requested the second respondent waive his training and buyout bond. [19] On 27.1.2021, the applicant requested the second respondent to waive the applicant’s notice period which was to expire on 21.4.2021. Vide a letter dated 30.1.2021, the second respondent agreed to waive the applicant’s notice period from 1.3.2021 to 21.4.2021. [20] Subsection 20(1A) of the Industrial Relations Act 1967 provides that the Director General of Industrial Relations shall not entertain any representations under subsection (1) unless such representations are filed within 60 days of the dismissal. For ease of reference, subsection 20(1A) of the Industrial Relations Act 1967 is reproduced below: “20. (1A) The Director General shall not entertain any representations under subsection (1) unless such representations are filed within sixty days of the dismissal: Provided that where a workman is dismissed with notice he may file a representation at any time during the period of such notice but not later than sixty days from the expiry thereof.” [21] The issue before this court therefore is whether the applicant had filed the representation within 60 days as provided in subsection 20(1A) of the Industrial Relations Act 1967. The applicant argued that the representation was filed within the 60 days. The applicant argued that his last day of employment was 21.4.2021. The applicant contended the last day of his employment was not 28.2.2021 which is his last physical day at work. [22] Facts which is not disputed is that the applicant had asked the second respondent for a waiver of his notice period. Nonetheless, the applicant argues that the 60 day time period should be calculated from the expiry of the notice period which is 21.4.2021 instead of the last physical day of his employment. [23] From the decision of the first respondent vide the letter dated 26.8.2021, the first respondent had stated the reason for the decision is that the applicant’s representation is out of time. [24] In Ng Boon Leh v Malaysian-American Commission on Educational Exchange (MACEE) & Anor [2022] 4 ILR 26, it was stated: “[23] Apparently, the only position in law where the industrial court can refuse to act on the representation under section 20(3) IRA is when there is a clear violation of section 20(1A) IRA which prescribes the time limit for the filing of the representation with the Director General where in such circumstances, the Minister obviously had no power to confer threshold jurisdiction upon the Industrial Court. This is what the Federal Court stated in the Case of Fung Keong Rubber Manufacturing (M) Sdn Bhd v. Lee Eng Kiat & Ors [1980] 1 LNS 156; [181] 1 MLJ 238….” [Emphasis added] [25] The requirement to strictly adhere to the time limit was stressed in the case of Fung Keong Rubber Manufacturing (M) Sdn Bhd v Lee Eng Kiat & Ors [1981] 1 MLJ 238 where the court stated the following: “In our view the whole purpose of this part of the legislation is to provide workmen with a cheap and speedy remedy to obtain reinstatement. Quite dearly it would be extraordinarily difficult for employers to keep industry going if claims for reinstatement on the ground of wrongful dismissal could be made many months or years, instead of the statutory period of one month, after dismissal had taken place. Under section 20(1) of the Act, a workman who claims reinstatement for wrongful dismissal is bound to comply with a very strict time limit. He must present his claim within one month of the dismissal. There is no similar escape clause as is provided by paragraph 21(4) of Schedule 1 to the (UK) Trade Union and Labour Relations Act, 1974, on the ground that it is "not practicable" to present a claim within the statutory period: see, for instance, Wall's Meat Co Ltd v Khan [1979] ICR 52. It is for that special reason that the time-limit clause with no escape clause is inserted in the section. It is so strict that it goes to the jurisdiction of the industrial court to hear the complaint. By that we mean that, if the claim is presented just one day late, the court has no jurisdiction to consider it.” [Emphasis added] [26] The applicant had sought to have his notice period waived. Yet now, for the purposes of filing the applicant’s representation with the Director General of Industrial Relations, the applicant did not take into account the waiver of his notice period. In the view of this court, the applicant cannot on one had request for a waiver of his notice period, yet on the other, for purposes of making a representation to the Director General of Industrial Relations, not consider the waiver of his notice period. [27] In this case, the representation was filed on 12.5.2021. In the view of this court, the calculation for 60 days should begin from 28.2.2021, as the applicant had requested to waive his notice period. The second respondent had agreed to the waive the notice period. This means that the representation should have been filed by 28.4.2021. The applicant had made his representation on 12.5.2021. Failure on the part of the applicant to make his representation by 28.4.2021 had rendered his representation time barred. Conclusion [28] For the aforesaid reasons, this court is satisfied there is no illegality, irrationality or procedural impropriety which would enable this court to allow this application for judicial review. This application is therefore dismissed with no order as to costs. Date: 07 July 2023 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For The Applicant: Rathi Jebaratnam Tetuan Dinesh Ratnarajah Partnership Advocates & Solicitors Suite 312, Level 3, Block E, Phileo Damansara 1, Off Jalan Damansara, Seksyen 16, 46350 Petaling Jaya, Selangor info@rth-lex.com +6 03 7956 0588 For the 1st & 3rd Respondents: FC Nur Aifaa binti Che Abdullah Kamar Penasihat Undang-Undang Negeri Selangor Darul Ehsan Tingkat 4, Podium Utara, Bangunan Sultan Salahuddin Abdul Aziz Shah, 40512 Shah Alam, Selangor. +6 03 5544 7183 For the 2nd Respondent: Wong Jia Ee Tetuan V Chong W Lam Advocates & Solicitors Suite 312, Level 3, Block E, Phileo Damansara 1, Off Jalan Damansara, Seksyen 16, 46350 Petaling Jaya, Selangor info@rth-lex.com +6 03 7956 0588