Shh Construction Sdn Bhd v 1. ) Mahkamah Perusahaan Malaysia (WA-25-220-05/2024)

After considering all the cause papers and respective written submissions of the parties, I hold that this leave application has no merit.

In the circumstances, I find no reason to disturb the findings of the learned Chairman of the IC, nor do I see any error of law 65 or fact in his conclusions. Accordingly, I dismissed the Applicant’s application with costs of RM5000.00 to be paid to R2 within 30 days from the date of this Order.

2.1 Dissatisfied, the Applicant filed this appeal, and my reasons are as 70 follows: BRIEF FACTS [3] From the cause papers, the brief facts are as follows:

The Applicant, SHH Construction Sdn Bhd, is a company, duly 75 registered under the Companies Act 1965. S/N mRRlxzHymEajg3o1wXBoJg

R2 is a former employee of the Applicant, who commenced work at the Applicant on 11.04.2005 as Project Manager, until he was terminated approximately fifteen years later on 31.10.2020.

R2 claimed that the Applicant wrongfully dismissed him, and he referred the matter to the Industrial Relations Department under the Industrial Relations Act 1967 (IRA 1967).

The Minister of Human Resources made a written reference dated 30.4.2021 under subsection 20(3) of the IRA 1967.

The said reference was received by the IC on 22.09.2021 and registered it as Case No: 3/4-2476/21.

3.1 After a full trail, the learned Chairman found that R2 was dismissed without cause. The IC held that (briefly):

The relevant conflict between the parties first arose in April 2018, when exchanges in a company’s WhatsApp group chat turned toxic, with an apparent sarcastic remark by R2 toward the Executive Chairman of the Applicant, which R2 refuses to 95 back down from. The learned IC Chairman found that, looking at the transcripts provided by the Applicant, the exchanges went unabated.

In all the circumstances, the learned IC Chairman found an 100 element of insubordination by R2 in those exchanges that R2 could not negate:

The Applicant's action was swift, with a First Warning Letter dated 03.07.2019 issued, which COW-1 admitted in evidence. 105 S/N mRRlxzHymEajg3o1wXBoJg

This was followed by a Second Warning Letter dated 10.10.2019, which COW-1 admitted was never sent either through email or the WhatsApp group Chat. The learned IC Chairman observed that the handwritten note on the letter by COW-1 was that R2 was invited to attend a 110 discussion regarding the contents of the said letter, but he had refused to accept it, with COW-1 not stating the reason for the refusal.

The learned IC Chairman also took cognisance that there is a document at pg.12 of COB-1 titled “Memo-Domestic 115 Inquiry dated 10.10.2019, with notes that COW-1, COW- 2 had testified, and R2 was supposedly in attendance, with no acknowledgement that he was there.

The said memo stated that a warning letter was issued to allow him to correct his supposed misconduct, but R2 120 refused to accept it.

The IC concluded that in the circumstances, no appropriate notice was given, but only a verbal one, before 10.10.2019. Therefore, the Applicant only issued the second warning letter after the supposed domestic 125 inquiry or discussion.

The third and final warning letter that the IC took was the letter dated 18.06.2020 that had been acknowledged and received by R2 titled “Final Warning Letter for Your Breach of Contract of Employment” signed by the 130 Executive Chairman and sent via email. S/N mRRlxzHymEajg3o1wXBoJg

This letter cited all three warning letters, including the current letter and reserves the management’s right to terminate the R2 if the management deems fit:

This letter was replied to by R2 on 30.06.2020, 135 denying that he had committed any wrongdoing.

(ii) The learned IC Chairman noted that the tone of the letter is not a warning but rather a notification that the Company was intending to take further action.

(iii) The Applicant issued a reply on 09.07.2020 140 reiterating their stand that the management will hold another Domestic Inquiry (DI) as allegedly discussed with the Selangor Labour Department.

The purported dismissal of R2 was grounded on a Notice 145 of termination dated 07.10.2020 that was to be effective on 30.10.2020. In his reply dated 14.10.2020, R2 denied all allegations of misconduct.

The IC concluded that there was no evidence of any other DI 150 being held. The IC had conducted a hearing based on all available evidence to remedy the omission of the DI by the Applicant: Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd & Anor [1995] 3 CLH 344, FC:

It was determined that it was a case of misconduct on the 155 part of R2.

The four incidents listed by the Applicant revolve around R2’s attitude and demeanour at the workplace towards his coworkers and insubordination and inflexibility against his superiors. The Applicant attempted to placate the hostile 160 environment, but R2 remained recalcitrant. S/N mRRlxzHymEajg3o1wXBoJg

The IC opined that, all factors of his supposed misconduct were sufficient for the Applicant to take action, even leading to termination.

However, it had to be done according to the accepted 165 norms and practices in Industrial Relations.

It was further observed by the IC that the supposed three warning letters would have been sufficient had they been done appropriately. The IC took cognisance that:

The first warning letter was delivered a year after it 170 was dated.

(ii) The second warning letter was after a failed discussion and not a domestic inquiry, as claimed on 10.10.2019, with conflicting evidence on the attendance of R2 that the Applicant could not refute 175 in cross-examination. R2 refuses to accept this letter, which affirms that he was insubordinate.

(iii) The third letter is not a warning letter at all, but a notification to R2 that he would be terminated. This decision was made on 25.05.2020.

(iv) The IC noted that since the Applicant had expressly stated that a DI would be held but it failed to do so, which is not favourable to the Applicant’s case.

The IC concluded that both parties contributed to the hostile 185 working environment that necessitated a separation, but it must be within accepted Industrial Relations practices, which were not complied by the Applicant.

In the circumstances, the IC concluded that, based on the 190 principles in section 30(5) IRA 1967, namely equity, good conscience and substantial merits of the case, without regard to technicalities and legal form, and all the evidence adduced S/N mRRlxzHymEajg3o1wXBoJg in Court, finds that R2 had proven on the balance of probabilities that he was dismissed without just cause or 195 excuse. The IC find that the termination was not done appropriately contributes to the case, referring to the doctrine of proportionality: Norizan bin Baker v Panzana Enterprise Sdn Bhd [2013] 6 MLJ 605, FC; Syed Fazal Syed Thajudeen v. Petroliam Nasional Berhad (Petronas) 200 [2023] 4 ILR 401; [2023] MELRU 2126. Therefore, R2 should bear 50% of the blame for the industrial disharmony at the workplace, and compensation in lieu of reinstatement was ordered (RM165,000.00 less 50% = RM82,500.00) 205 THE PARTIES ARGUMENTS [4] In arriving at my decision, I have duly considered all the cause papers and the parties' arguments, vis-à-vis the findings of the learned Chairman of the IC in the IC Final Award, as follows: 210 The Applicant’s arguments: [5] In a nutshell, the Applicant argued that:

It disagreed with the finding by the learned Chairman of the IC in the IC Final Award that R2 was terminated without just cause, when he had committed misconduct, including theft 215 and abuse of power, which led to his dismissal.

The Applicant argues it has a prima facie case and meets the low threshold for leave under O.53 r.3(1) of the RC 2012, and grounded this application for review under irrationality, 220 unreasonableness, breach of natural justice, and illegality in the IC’s Final Award. Citing in support Attorney General of S/N mRRlxzHymEajg3o1wXBoJg Malaysia v Sabah Law Society (State Government of Sabah, intervenor) [2024] 4 MLJ 436, which held that the law is settled that the burden that an applicant must discharge to 225 obtain leave is low regardless of whether the application is heard inter parte or ex parte. The leave application is essentially a filter to weed out frivolous applications. See also the Federal Court in Members of the Commission of Enquiry on the Video Clip Recording of Images of a 230 Person Purported to be an Advocate & Solicitor Speaking on a telephone on Matters of the Appointment of Judges v Tun Dato Serti Ahmad Fairuz bin Dato’ Sheikh Abdul Halim [2011] 6 MLJ 490, FC 235

The Applicant asserts that it has disclosed all relevant facts and documents to negate R2’s claim of nondisclosure. Citing in support Suresh Kumar a/l Achuthan Krishnan v Lembaga Kelayakan Profesion Undang-Undang, Malaysia [2024] 11 MLJ 815, HC, the applicant must produce all 240 relevant and material facts/documents/cause papers before the court can fully determine if the applicant had prima facie an arguable case for the relief being sought and that the said application was neither frivolous nor vexatious and argued:

The IC erred in failing to consider R2’s misconduct during 245 work, where he had allegedly committed a clear abuse of power in authorising the sale of the Applicant’s property to the Applicant’s sub-contractor.

The IC erred in failing to consider the alleged detrimental effect of R2ʼs misconduct towards the Applicant’s 250 business operation and its reputation, in failing to carry S/N mRRlxzHymEajg3o1wXBoJg out his work appropriately as Project Manager for the main contractors, Gadang Engineering (M) Sdn. Bhd.

The IC erred by placing a high weightage on the fact that the Applicant omitted to conduct a DI, when such 255 procedure is not mandatory under the law. Failure to carry out a DI is not fatal as it is curable by the inquiry conducted at the IC: Mila Auto Sdn Bhd v Wong She Yen [1995] 4 CLJ 449, FC. It was argued that the IC’s decision is against the principle of natural justice, by requiring the 260 Applicant to conduct a DI after the issuance of the 3rd Warning Letter when such procedure is unnecessary under the law.

The IC erred in concluding that there is a lack of show cause letters on the Applicant’s part, when in fact the 265 Applicant issued 3 Warning Letters containing details of the misconduct and breaches by R2, which supposedly indicate a full and proper due inquiry had been carried out against R2.

The Applicant has a legitimate expectation that the IC will 270 consider all evidence presented by the parties.

5.1 It was further argued:

That the IC’s decision is irrational, unreasonable, and tainted with illegality, as the IC had failed to consider the alleged 275 evidence of theft by R2 that was a key reason for dismissal.

Conducting a DI was unnecessary under the law. The IC is empowered to cure any procedural defects during the trial. 280 S/N mRRlxzHymEajg3o1wXBoJg

The Applicant maintains that it has a prima facie case and has fulfilled the threshold for leave for judicial review to be granted.

The IC failed to consider the evidence of the alleged theft by R2, rendering its decision illegal, which must be canvassed 285 and ventilated at the substantive hearing of the JR, but not at the leave stage.

5.2 The Applicant argued that the decision as to the legality, procedural regularity and correctness of the IC’s Final Award should only be 290 considered at the substantive stage of this JR application, given that all of these considerations can only be decided upon a review of the merits of this case, and not at this preliminary stage. It denied the allegation that the reason for the leave for JR review is monetary, but rather, a legitimate expectation that the IC will take 295 into account all evidence presented to deliver a correct decision. The Second Respondent’s arguments: [6] In a nutshell, R2 argued as follows:

R2 asserts the Applicant is using the JR process to avoid 300 compliance with the Award. The IC had considered all material facts, including contributory negligence by R2, and found no evidence of theft.

The Applicant failed to present key witnesses or evidence to 305 substantiate the theft allegation at the trial at the IC. The Applicant was not forthcoming with the fact that the authorities did not propose any charge/s against R2, and neither was there any prosecution or conviction for theft. The Applicant's claims are speculative and do not meet the threshold for JR or 310 a stay of execution. S/N mRRlxzHymEajg3o1wXBoJg

6.1 It was pointed out by R2 that no doubt that the threshold for leave is low, but still, there is a threshold to meet. It is erroneous to argue that, since it is a low threshold, leave ought to be granted:

The IC Final Award had duly considered that there was contributory negligence on the part of R2 in creating an industrial disharmony at the workplace.

The IC makes no mention of the allegation of theft by R2 since the Applicant led no evidence at the trial to establish that 320 allegation. It was established at the trial that the Applicant merely relied on bare allegations when it failed to adduce relevant witnesses to corroborate the allegation of theft, the maker of the police report, the maker of the photographs concerning the alleged theft, the maker of the alleged warning 325 letters and proof of receipt of all three supposed warning letters.

Clearly, the Applicant did not have an arguable case that met the threshold for leave to apply for JR. 330 6.2 It was established at the trial before the IC that the supposed warning letters to R2 were not even given to PR2 on the date stated in the letter but were given months later in a WhatsApp group chat. No complete and proper inquiry was done, as the Applicant could not even prove that R2 was even in attendance at one of the 335 alleged inquiries.

6.3 The Applicant has not proven any special circumstances to warrant a stay of the IC’s Final Award other than arguing the impossibility of recovery if a stay is not granted. The Federal Court in Asean 340 Security Mills Sdn Bhd v Mitsui Sumitomo Insurance S/N mRRlxzHymEajg3o1wXBoJg (Malaysia) Bhd [2008] 2 MLJ 137, held that the respondent’s fear that there was no prospect of recovery of the money from the appellant in the event they were successful in the revision was mere speculative and an unfounded fear. The risk of the appellant’s 345 dissipation of the insurance money awarded was universal, and a universal risk was not a special circumstance. THE LAW [7] The Industrial Relations (Amendment) Act 2020, s.33C came into 350 force on 01.01.2021, reads: “33C. Appeal against an award to the High Court.

If any person is dissatisfied with an award of the Court made under section 30, such person may appeal to the High Court within fourteen days from the date of receipt of the award.

The procedure in an appeal to the High Court shall be the procedure in the Rules of Court 2012 [P.U. (A) 205/2012] for an appeal from a Sessions Court with such modifications as the circumstances may require.

In dealing with such appeals, the High Court shall have like powers as if 360 the appeal were from the Sessions Court.”

7.1 The Court of Appeal in Osram Opto Semiconductors (M) Sdn Bhd v Ooi Mei Chen & Anor [2024] 6 CLJ 716 said: “[15] Perhaps the discernible change has gained momentum with the passage 365 of time, as there is nothing more powerful than an idea whose time has come, as Victor Hugo would say. The Industrial Relations (Amendment) Act 2020, under which the new s 33C came into force on 1 January 2021, reads as follows: …. 370 [16] The diffused distinction between a review and an appeal has now been discarded altogether with respect to challenging an award of the Industrial Court, which, since its coming into force, is by way of an appeal as if it is an appeal from the Sessions Court, with the result that the Court of Appeal would be the apex court.” 375 S/N mRRlxzHymEajg3o1wXBoJg Judicial Review [8] The Federal Court in WRP Asia Pacific Sdn Bhd v. Tenaga 380 Nasional Bhd [2012] 4 CLJ 478; [2012] 4 MLJ 296 held: "... Leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in favor of granting the relief sought at the substantive hearing may be the resultant outcome. A rider must be attached to the application though i.e. unless the matter for judicial review is 385 amenable to judicial review absolutely no success may be envisaged."

8.1 The Federal Court in R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, referred to the legal principle regarding judicial review in the case of Council of Civil 390 Service Unions & Ors v Minister of Civil Service [1985] AC 37: Lord Diplock defined the three grounds of review: (1) illegality, (2) irrationality, and (3) procedural impropriety:

‘Illegality’:

The decision maker must understand directly the law that 395 regulates his decision-making power and must give effect to it.

Whether he has or not is, par excellence, a justiciable question to be decided. 400

‘Irrationality:

‘Wednesbury unreasonableness’: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.

It applies to a decision so outrageous in its defiance of 405 logic or of accepted moral standards that no sensible person who had used his mind to decide the question could have arrived at it.

Whether a decision falls within this category is a question that judges by their training and experience should be well 410 equipped to answer. S/N mRRlxzHymEajg3o1wXBoJg

‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. 415

‘Procedural impropriety’:

Failing to observe basic rules of natural justice.

Failure by an administrative tribunal to observe procedural rules that are expressly laid down in the 420 legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.

Lord Diplock also mentioned ‘proportionality’ as a possible 425 fourth ground of review, which called for development. [9] In a nutshell, the Federal Court in Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1, FC held (briefly):

The Rama Chandran decision by the FC has given the 430 reviewing court a license to review decisions without restraint for substance, even when the decision is based on a finding of fact.

Post Rama Chandran cases have applied some brakes to the courts’ liberal approach.

The Federal Court in the case of Kumpulan Perangsang Selangor Bhd v Zaid Noh [1997] 1 MLJ 789; [1997] 2 CLJ 11, FC 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 440 in Rama Chandran may be wholly inappropriate.

The Federal Court, in Petroliam National Bhd v. Nik Ramli Nik Hassan [2004] 2 MLJ 288; [2003] 4 CLJ 625, FC also S/N mRRlxzHymEajg3o1wXBoJg observed that the reviewing court may scrutinise a decision on its merits but only in the most appropriate of cases and not 445 every case is amenable to the Rama Chandran approach.

A reviewing judge ought not to disturb the findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to the same conclusion. 450 [10] In a nutshell, judicial review is not an appeal of a decision, but a review of how the decision was made. The Supreme Court in Harpers Trading (M) Sdn Bhd V National Union of Commercial Workers [1991] 1 MLJ 417, SC held as follows:

A judicial review is not an appeal of a decision, but a review of how the decision was made. The High Court is not entitled to an application for judicial review to consider whether the decision was fair and reasonable on the merits of the facts.

The Industrial Court, in this case, had heard evidence from 460 both sides and decided to exculpate Tan Seng Khow. It is not the High Court's function to exercise its supervisory jurisdiction to hear a dispute de novo and decide on its merits. This is not a case where the Industrial Court had acted on no evidence or had come to a conclusion on the evidence it could not 465 reasonably come to.

There is no basis for concluding that the decision of the Industrial Court, in this case, was in excess of jurisdiction or unreasonable and, therefore, a nullity. The court also rejected the contention that the decision of the Industrial Court was so 470 manifestly unreasonable that nobody could have reached it because there was no basis for the court to reach such a S/N mRRlxzHymEajg3o1wXBoJg conclusion. The Industrial Court had acted within the four corners of the dispute, and in arriving at its decision, it did not reach an absurd result. 475 [11] Law of Employment on the Impugn Issues:

Several actions that constitute major misconduct in an employment relationship generally:

Insubordination.

Conflict of Interests.

Absenteeism.

Procedurally:

Before effecting a dismissal of a recalcitrant employee 485 who is in breach of their duty in service, (i) by the issuance of a show cause letter to enable them to explain their action, or (ii) to conduct a domestic inquiry.

It is trite law in Malaysia that an omission to hold a domestic inquiry (DI) is not fatal and does not ipso facto 490 render the dismissal unfair: Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd & Anor Appeal [1995] 2 MLJ 753; [1995] 3 CLJ 344 at 358, FC, observed that an initial defect in natural justice in not holding a DI is curable by the inquiry held by the IC. 495 Therefore, that initial failure to hold the DI is not fatal:

The Court, looking into the matter, will inquire into the merits of the case and not depend on the findings of the DI conducted by the tribunal: Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Other 500 Appeals [1997] 1 CLJ 665, CA. S/N mRRlxzHymEajg3o1wXBoJg

(ii) The Federal Court in Milan Auto Sdn Bhd v Wong She Yen [1995] 4 CLJ 449, FC observed that the Court would look into the organisation's internal policies, rules or regulations and decided case law to 505 determine whether there was misconduct that warrants a dismissal that is with a just cause or excuse.

Proportionality of punishment meted out: 510 It is a trite law:

The burden of proof rests on the employer to prove that the employee had indeed committed the grave misconduct for which they were dismissed.

Once a finding of misconduct has been established, 515 the Court is to determine whether such misconduct was severe enough to warrant dismissal.

In doing so, the doctrine of proportionality of punishment applies where the punishment must be proportionate to the misconduct committed.

The Federal Court in Norizan bin Bakar v Panzana Enterprise Sdn Bhd [2013] 6 AMR 338; [2013] 9 CLJ 409, FC held that the Industrial Court is:

Duty bound to consider the proportionality of punishment when exercising its powers under 525 section 30(5) of the IRA 1967 to act following equity, good conscience and substantial merits of the case.

(ii) Factors that the court may take into account in deciding harshness are generally the length of 530 service of an employee as well as an employee’s prior record of service, i.e. the longer an employee is in service with an unblemished record, the higher the chances of a dismissal being held to be unduly harsh. 535 S/N mRRlxzHymEajg3o1wXBoJg

(iii) It will very much depend on the nature of the misconduct. In Norizan bin Bakar’s case, the Federal Court concluded that the misconduct 540 warranted dismissal as it contained elements of dishonesty.

11.1 In Harianto Effendy Zakaria & Ors v Mahkamah Perusahaan Malaysia & Anor [2013] 2 MELR 263, CA, the Court of Appeal 545 observed that:

The learned judge was correct in concluding that the defective DI and its decision did not ipso facto render the dismissal defective because the Industrial Court proceeded de novo.

(ii) Allegations of victimisation grounded on conjecture were 550 untenable.

(iii) There was a valid finding that the claimant had participated in an unlawful picket that adversely impacted the employer's reputation.

(iv) It constitutes grave misconduct where dismissal was the 555 inevitable punishment. Employers should not discount the need for an appropriate DI as it may prove helpful when the matter is eventually referred to the IC for adjudication. 560 FINDINGS OF THIS COURT [12] All things considered:

12.1 I have examined all-cause papers, and the parties' respective submissions, and find as follows:

From the totality of the evidence that the Applicant has failed to discharge his burden to establish their claim in L1 (Leave). S/N mRRlxzHymEajg3o1wXBoJg

(ii) The Applicant could not produce compelling or persuasive 570 evidence, and I find no legal basis to disturb the findings of the learned IC Chairman as seen in the IC’s Final Award. I can see no procedural irregularity to impair the impugned decision.

12.2 In arriving at my decision, I have duly examined and considered 575 the Grounds for Award No. 230 of 2024 by the learned IC:

It is my considered judgment that the learned Chairman of the IC had been meticulous in his factual and legal appraisal of the facts and evidence adduced by the parties.

(ii) I find no reason to disturb the findings of the learned Chairman 580 of the IC, nor do I see any error of law or fact in his conclusions. [13] It is trite in Industrial Relations law that any purported termination of the services of an employee must adhere to the established practice and procedure:

It cannot be executed haphazardly or at the whim and fancy of the employer.

The IC had made a correct finding of fact that the purported termination of R2 is botched.

The supposed three letters of warning were not what they 590 purport to be. That had not been refuted by the Applicant, which would leave the Applicant without proper merit to challenge that finding of fact by the IC.

It is trite law that any departure from accepted practice and procedure would render any termination invalid, as it is in this 595 present case concerning R2. In the circumstances, it would constitute a termination without cause or excuse. S/N mRRlxzHymEajg3o1wXBoJg

The allegation of criminal misconduct in the alleged thievery of the company’s property by R2 is untenable when such allegation was not established with appropriate and tangible 600 evidence. It remains as bare assertions that carries no evidential weight. Grounding the Applicant’s termination of R2 on this premise would be fatal since it had not been proven at any juncture of the trial. It completely renders the challenge of the IC findings unsustainable. There is simply no merit to it.

13.1 The Applicant fell into error by concluding that it had met the low threshold for leave under O.53 r.3(1) RC 2012, just because the threshold is low, it would entitle parties to it, even if there is no merit or an arguable case to it.

To claim irrationality, unreasonableness, breach of natural justice, and illegality in the IC’s Final Award based on the above arguments by the Applicant is unreasonable and there is no factual basis for it. In Attorney General of Malaysia v Sabah Law Society (State Government of Sabah, intervenor) 615 [2024] 4 MLJ 436, that the leave application is essentially a filter to weed out frivolous or wholly unmeritorious applications, as I find the present L.1 to be.

(ii) The Applicant submitted that the IC had placed a high 620 weightage on the fact that the Applicant omitted to conduct a DI, when such procedure is not mandatory under the law. Clearly, from the findings, the learned IC Chairman took no such position. What I had gathered is that the learned IC Chairman took it on himself to remedy the botched DI by the Applicant to 625 determine the guilt of R2, in which case the IC concluded that S/N mRRlxzHymEajg3o1wXBoJg there was misconduct and applied the principle under section 30(5) IRA 1967 to address it. There is no error of fact or law in that finding. 630

(iii) Section 30(5) of the Industrial Relations Act 1967 is a crucial provision that governs the approach of the Malaysian Industrial Court when dealing with disputes and provides: "The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal 635 form." It grants broad power to move beyond strict legal technicalities and formalities and focus on what is fair and equitable in the specific circumstances of the case. The court is encouraged to 640 get to the heart of the matter and resolve the underlying conflict. In essence, Section 30(5) gives the Industrial Court a mandate to dispense "social justice." It underscores the special nature of the court, which is designed to promote and maintain industrial harmony, rather than simply applying a 645 strict legal code like a regular civil court. It allows for a more flexible and holistic approach to resolving conflicts between employers and employees. [14] That said: 650 14.1 I must conclude by making another observation for completeness:

I observed that the Applicant in the present proceeding did not inform the Court as to the date and by whom (the DG or the Minister) that referred this industrial dispute to the IC, leading to the registration of case no: 3/4-2476/21. It was only revealed 655 by examining the IC Final Award. S/N mRRlxzHymEajg3o1wXBoJg

I hold this to be essential in the present circumstances, since the IRA Amendment Act 2020 had amended section 20 of the IRA in that the HR Minister's discretion to refer a workman’s 660 unfair dismissal representation to the IC for an award had been removed, which came into effect on 01.01.2021.

In the said amendment, the DG shall refer the representation to the IC for an award where there is no likelihood of the 665 dispute being settled. This leads to the following position:

Before the amendment introduced by the 2020 Amendment Act, any party aggrieved by the IC Award would utilise JR proceedings to quash an IC Award.

After the amendment (effective 01.01.2021), the new 670 section 33C of the IR Act states that any person dissatisfied with the Industrial Court Award may appeal to the High Court and not via JR.

The Court of Appeal in Osram Opto Semiconductors

(M) Sdn Bhd v Ooi Mei Chen & Anor [2024] 6 CLJ 716 675 made the following observation: “[15] Perhaps the discernible change has gained momentum with the passage of time, as there is nothing more powerful than an idea whose time has come, as Victor Hugo would say. The Industrial Relations (Amendment) Act 2020, under which the 680 new s 33C came into force on 1 January 2021, reads as follows: [16] The diffused distinction between a review and an appeal has now been discarded altogether with respect to challenging an award of the Industrial Court, which, since its coming into 685 force, is by way of an appeal as if it is an appeal from the Sessions Court, with the result that the Court of Appeal would be the apex court.” 690 S/N mRRlxzHymEajg3o1wXBoJg

I take note that, according to the IC Final Award:

The date of reference was 30.04.2021, i.e., about four months after the said amendments took effect on 01.01.2021.

(ii) Date of receipt of the order of reference was 695 22.09.2021.

(iii) The decision of the IC in the Final IC Award is dated 07.02.2024.

In such circumstances, this application for leave (L1) to 700 commence JR by the Applicant could be dismissed in-limine for non-compliance with section 33C IRA, as mandated by the statute that an appeal must be made to challenge an IC award.

14.2 In light of all the foregoing findings, I find no merit nor sustainability 705 in the Applicant’s L1 leave for JR, and I therefore affirm the findings of the learned Chairman of the IC in the Final IC Award. CONCLUSION [15] Therefore, L1 (Leave) by the Applicant is dismissed with costs of 710 RM5,00.00 payable to R2 within 30 days from the date of this order. Dated 19.08.2025. 715 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA 720 KUALA LUMPUR S/N mRRlxzHymEajg3o1wXBoJg For the Applicant: Carolyn Ng together with Chua Zhuo Ling (PDK) 725 Messrs Mah Weng Kwai & Associates For the Second Respondent: Yasmin Anne Raj 730 Messrs K. Nadarajah & Partners S/N mRRlxzHymEajg3o1wXBoJg