Thavakumar A/L Kandiahpillai v SapuraOMV Upstream (Sarawak) Inc (WA-25-272-09/2023)

1.

MAHKAMAH PERUSAHAAN MALAYSIA …RESPONDEN-RESPONDEN 45 10/03/2025 16:03:22 Kand. 31 JUDGMENT (Enclosure 1/6) INTRODUCTION [1] In this Judicial Review Application (JR), the Applicant applies for 50 the following order:

Leave be granted to apply for an order of Certiorari to quash the entire decision made by the Industrial Court of Malaysia (the Second Respondent - R2) in Awad No. 1353 of 2023, dated 14.06.2023 (received by the Applicant's solicitors on 55 04.07.2023) (the Awad).

Further:

Leave be granted to apply for a Mandamus order to remit case No. 4/4-731/21 to the Industrial Court of Kuala Lumpur to determine remedies/reliefs for the Applicant.

(ii) Alternatively, the Applicant is granted leave to apply for a Mandamus order directing R2 to rehear Industrial Court of Malaysia case No.: 4/4-731/21 by another division or Chairman of the Industrial Court; and

Other reliefs and costs. 65 [2] On 06.01.2025, after considering all the cause papers and respective written submissions of the parties on a balance of probabilities, I hold that the Applicant has failed to discharge his burden to establish his case. Accordingly, I dismissed the Applicant’s application with costs of RM5,000.00 to be paid within 70 30 days from the date of this Order.

2.1 Dissatisfied, the Applicant filed this appeal, and my reasons are as follows: 75 BRIEF FACTS [3] On 08.08.2012, the applicant was offered employment with SapuraKencana Petroleum Bhd (L.3, exhibit: P2 PDF 108-111).

3.1 On 10.09.2015, the applicant was offered the position of Vice 80 President, Legal Affairs of SapuraKencana Petroleum Bhd (L.3, exhibit: P2 PDF pp.112-115).

3.2 On 10.03.2017, via a letter of transfer (L.3, exhibit: P2 PDF 116-119).

The applicant was duly informed that effective 01.03.2017, he was being transferred to SapuraKencana Energy Sarawak Inc 85 (formerly the name of the First Respondent – R1) as the Head of Legal and Contracts.

He was to report to the Senior Vice President and the Country Manager of Sapuraomv Upstream (Sarawak) Inc Bhd.

3.3 SapuraKencana Energy Sarawak Inc:

Is a wholly owned entity of SapuraOMV Upstream Sdn Bhd (SUSB).

SUSB is an equally owned entity between Sapura Energy Bhd (SEB) and OMV AG Group after SEB entered into a joint-venture partnership with OMV AG Group sometime in 2019.

Eventually, Sapuraomv Upstream (Sarawak) Inc. underwent a restructuring exercise to better align its new business strategy and corporate structure.

3.4 On 29.04.2019:

As part of this restructuring exercise, the applicant was given 100 a written notice that effective from 01.05.2019, the applicant was given a new position title, Legal and Contracts Manager, and to report to the Chief Executive Officer (CEO) (L.3, exhibit: P2 PDF 120).

Approximately fourteen months later, on 29.06.2020, the 105 applicant was instructed to report to the newly appointed Head, Legal & Compliance (L.3, exhibit: P2 PDF123).

3.6 On 03.07.2020, approximately a week later, the Applicant tendered his resignation letter with a 1-month notice (L.3, exhibit: P2 PDF124).

3.7 On 14.07.2020, R1 accepted the Applicant's resignation and 110 informed the Applicant that his last working and employment dates would be 30.07.2020 and 02.08.2020, respectively (L.3, exhibit: P2

3.8 The applicant:

Subsequently lodged a formal complaint to the Industrial 115 Relations Department, and the Human Resource Minister, exercising his discretion, referred under sec. 20(3) of the Industrial Relations Act (IRA) [pre-amendment 2020], where the case was subsequently registered under Industrial Court Case No: 4/4-731/2021.

The claim is founded on constructive dismissal by R1.

His claim was heard at the Industrial Court (IC) between 10.02.2023 and 24.02.2023, where a final award IC Award No.1353 of 2023, dated 14.06.2023, dismissing his complaint.

On 08.09.2023:

The applicant, aggrieved, challenged the IC Awad No. 1353 of 2023, dated 14.06.2023, under O.53 RC 2012, by filling this JR application (L1) despite the coming into force of section 33C of the IRA on 01.01.2021, where challenges must be mounted by an appeal.

I had observed the ruling in the High Court of Penang in Aneka Retail (M) Sdn Bhd v Industrial Court of Malaysia [2022] MLJU 2159, HC observed:

In light of the amendment to the IRA by the 135 incorporation of the new section 33C as the new mode to challenge an IC Award in the High Court in place of a judicial review application under O.53 RC 2012, explained that:

The insertion of Section 33C of the IRA allows 140 the party dissatisfied with the Award to appeal to the High Court.

Section 33C of the IR Act (Appeal against an award to the High Court) provides as follows:

If any person is dissatisfied with an award of the 145 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 150 [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 the appeal is from the 155 Sessions Court.

It was further observed that:

Before the amendment introduced by the 2020 Amendment Act, any party aggrieved by the Industrial 160 Court Award would utilise judicial review proceedings to quash an Industrial Court Award.

(ii) After the amendment (effective 1.1.2021), Section 33C of the IR Act states that any person dissatisfied with the Industrial Court Award may appeal to the High Court.

(iii) The 2020 Amendment Act also amended Section 20 of the IRA in removing the Human Resource (HR) Minister’s discretion to refer the workman’s unfair dismissal representation to the Industrial Court for an award.

(iv) Instead, the DG shall refer the representations to the Industrial Court for an award where he is satisfied that there is no likelihood of the representations being settled.

Therefore, the High Court opined that if the DG referred 175 the representation to the Industrial Court, an appeal should be filed under Section 33C of the IR Act to challenge any Industrial Court Award.

(vi) However, if the HR Minister referred the representation, then the minister would have exercised his power under 180 section 20(3) [pre-amendment]. The challenge mode would be by judicial review and not by an appeal as required under the new section 33C [post-amendment].

(vii) The saving provision under section 35 of the 2020 Amendment Act allows an aggrieved party to proceed 185 via JR as if the amendments had never occurred, provided the representation was made before the 2020 Amendment took effect:

Section 35 of the Industrial Relations Amendment Act 2020 essentially acts as a "saving" clause, 190 meaning it protects any existing complaints, disputes, or proceedings initiated under the old Industrial Relations Act before the amendments came into effect, allowing them to continue under the previous rules; essentially, it ensures that 195 ongoing cases are not affected by the new legislation and can proceed as if the amendments hadn't been made.

Any complaints, claims, or proceedings already filed before the Industrial Court under the old Act 200 will continue to be dealt with according to the old rules, even after the 2020 amendments.

It prevents any disruption to legal processes already underway when the new amendments come into force.

It also applies to existing rules and regulations, allowing them to remain valid until amended or revoked, as long as they are consistent with the amended Act. 210

I also observed that, the Grounds of Judgment by the IC found in L.3, PDF pg.351, which states explicitly that the reference by the Human Resource Minister under section 20(3) of the IRA 1967 was dated 17.03.2021 for the alleged constructive dismissal of the applicant on 03.08.2020:

In such circumstances, it would appear that the HR Minister would have exercised his power on 17.03.2021 [post amendment 2020] under section 20(3) IRA that he no longer enjoys. The Amendment Act 2020 has removed that discretion, and it came into force on 01.01.2021 220 approximately two months prior.

In such circumstances, on this ground alone this JR Application (L.1) could be dismissed. I have to state here that none of the parties had addressed this concern.

However, and for completeness, I will proceed with the 225 merits on this application. THE PARTIES ARGUMENTS [4] I have considered the cause papers and parties' arguments as follows: 230 The Applicant’s arguments:

1 The applicant filed this application under O.53 r.5 Rules of Court 2012 (RC 2102), alleging that R2/IC had committed errors in law 235 and facts when he failed to consider: Basis of Application [5] The contents of the letter dated 29.04.2019 (the said letter):

1 R2/IC failed:

To consider the contents of R1’s letter stating that the Applicant was to report to the CEO at the time and that there was no instruction given to the Applicant to report to the Head of Legal & Compliance.

The letter states that the Applicant should report only to the CEO, with no instruction to report to the Head of Legal & Compliance once the position is filled.

5.2 R2/IC concluded that the said letter was referring to and/or 250 connected to the organisational chart (para 32 of the Award 24) but failed to consider the following factors:

Although the letter proposed changing the Applicant's title to Legal and Contracts Manager, it did not specify any change in job functions, duties, or responsibilities, and it did not mention 255 the Organization Chart.

R1’s witness in the Industrial Court, Muhammad Zamri Jusoh (COW), confirmed during cross-examination that the said letter did not indicate that the Applicant was to report to the Head of Legal & Compliance.

COW further confirmed that the letter did not include a written confirmation advising the Applicant that he would report to the Head of Legal & Compliance once the position was filled.

The Organization Chart is undated and unsigned. There is no evidence showing it was approved as an official document of 265 R1 or that it was implemented (L.3 exhibit: P2, PDF pg.197- Notes).

5.3 There is no evidence before R2/IC:

That the applicant's title had changed to Legal and Contracts Manager or was informed to report to the Head of Legal & 270 Compliance once the position was filled.

The Special Audit Report 28 supports this, indicating the Applicant performed Compliance functions as the Head of Legal & Compliance, as confirmed by COW during cross-examination (L.3 exhibit: P4, PDF 155).

5.4 R2/IC, in paragraph 33 of the Award:

Had made an erroneous conclusion: "After 15.05.2019, there was no indication from the R1 that there will be any change to the reporting line or any alteration to the organisational 280 chart that the Claimant was given.

This surely ought to have caused the applicant concerns as it was clear from all the evidence in this Court and the evidence of COW that another person will eventually occupy the vacant position of the Head of Legal and Compliance, and 285 the applicant will be reporting to him.

This shows that R1 did not implement the Organization Chart and, therefore, did not instruct the Applicant to report to the Head of Legal and Compliance before 29.06.2020 since the Applicant was reporting to the CEO until that date.

R2/IC had overlooked this; therefore, it is incorrect to conclude that the Organization Chart was in force before 29.06.2020. [6] There is undisputed evidence that the Applicant was 295 instructed to resume his duties in status quo and that he was performing compliance functions.

6.1 The applicant further argued that R2/IC failed to consider:

Evidence supports the Applicant's allegation that he was 300 instructed to continue his position in status quo.

There is evidence that COW did not give instructions or inform the Applicant that he would report to the Head of Legal & Compliance once the position is filled up.

The contents of the Special Audit Report, which shows the 305 Applicant's position in Compliance, are undisputed.

R2/IC's decision that an external party prepared R1’s Audit Report is inaccurate, as the audit was conducted by R1’s parent Company and the audit report was prepared by R1's Company - the fact of which was agreed by R1 as admitted by 310 COW during his testimony - wherein he did not dispute the contents of the same.

R2/IC committed an error that resulted in R2 making incorrect conclusions and findings of facts regarding the audit report, and there is evidence that the Applicant had carried out his 315 duties and functions as Head of Legal & Compliance continuously from 01.03.2017 to 03.07.2020. [7] The reasons why the Applicant served his notice 1-month notice period and did not leave his employment immediately 320

7.1 The applicant delayed exercising his rights when he tendered his letter dated 03.07.2020 and continued to serve a one-month notice to R1. Based on this, R2/IC erroneously concluded that it was a voluntary resignation despite his evident dissatisfaction in his letter 325 dated 03.07.2020.

7.2 The applicant considered himself to have been constructively dismissed by R1 only on 30.06.2020 when he received R1’s letter and confirmed it.

7.3 R2/IC regarded:

The Applicant's act of serving the 1-month notice was against the Applicant's claim that R1 had committed a fundamental breach of his employment contract.

It was argued that the applicant's act of serving the 1-month notice does not invalidate his claim for constructive dismissal as he has the right to leave his employment immediately or at the end of the notice period. The applicant cited in support, CIMB BANK BHD v AHMAD SUHAIRI MAT ALI & ANOR 340 [2023) 4 ILR the Court of Appeal held that the employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. 345 7.4 The applicant cannot also be said to have voluntarily tendered his resignation for serving a 1-month notice when it is stated in his letter dated 03.07.2020 that, "I am constrained to hereby tender my resignation ..." which R2/IC failed to consider. 350 7.5 On 15.05.2019:

The applicant emailed R1 assuming the Organization Chart was for discussion and sought clarification.

When R1 did not reply, it was justified for the applicant to view that the Organization Chart would not take effect, especially 355 when the letter clearly stated that he was to report to the CEO.

The CEO had instructed the applicant to continue his employment in the status quo.

Therefore, the applicant never expected to have his reporting line changed to the Head of Legal and Compliance or to be 360 relegated with his Compliance functions removed until 30.06.2020, when R1 issued the letter dated 29.06.2020. [8] R2/IC failed to consider the fact that the R1 did not dispute the applicant's email dated 15.05.2019 and letter dated 03.07.2020 365

8.1 R2/IC has failed to consider:

The fact that there was no dispute and/or response by R1 on the applicant's email dated 15.05.2019 and his letter dated 03.07.2020.

In the absence of the rebuttal evidence or dispute by R1, the learned counsel submitted that the contents of the applicant's email dated 15.05.2019 and letter dated 03.07.2020 must be accepted as the truth.

The applicant cited in support of David Wong Hon Leong v 375 Noorazman Bin Adnan [1995] 4 CLJ 155, CA, where there was a failure to respond to a letter, and it was held that if the plaintiff disagrees, the plaintiff should object in that case.

The applicant also cited Uni Resources Business Centre (Ubn) Sdn Bhd v Ho Meng Tee [1999] 1 ILR 261, IC, where 380 the learned Chairman of the Industrial Court held as follows: "[1] The Company's failure to reply to the Claimant's letters confirmed the allegations cited therein. The Company's failure to reply to the second letter clearly indicated that the Claimant's duties and responsibilities were removed and the key to the operations room taken from her. The 385 Company's should have repudiated the contents of the letters in writing at the material time instead of refuting them in court."

8.2 The Applicant's letter dated 03.07.2020 discloses:

After the applicant's email on 15.05.2019, he was instructed to 390 continue leading the department and compliance function despite any organisational chart changes. This shows that the CEO directed the Applicant to maintain the status quo regardless of the letter dated 29.04.2019 or the Organization Chart.

The new Head of Legal & Compliance appointment, effective 01.07.2020, resulted in the applicant no longer leading the Compliance functions, removing half of his overall responsibilities.

Neither COW nor anyone from R1 replied to or disputed the 400 applicant's letter dated 03.07.2020. R1 accepted the applicant's resignation in their letter dated 14.07.2020 but did not dispute any contents of the applicant's earlier letter.

8.3 During cross-examination, COW agreed with the applicant's 405 counsel that he did not reply to the applicant's letter dated 03.07.2020 because its contents were correct. In re-examination, COW again confirmed the accuracy of the letter's contents.

8.4 COW's testimony that he did not see the need to argue or deny the 410 applicant's letter is unconvincing. R2/IC failed to consider that an employer must reply to an employee's resignation letter, especially when allegations are made, to safeguard its rights. R1’s failure to address this was overlooked by R2/IC, resulting in a flawed decision. 415

8.5 Based on the foregoing reasonings, the applicant submitted that R2/IC’s decision is also a decision that no reasonable person or body similarly circumstanced would have arrived at and apply to quash the impugned decision of R2/IC in the said Award. 420 [9] On the submission by R1 that the applicant reports to the CEO was only temporary, the applicant further submitted that:

No document was presented to R2/IC stating that the applicant's reporting to the CEO was temporary until a new 425 Head of Legal and compliance was appointed.

R1’s letter dated 29.04.2019 does not mention that the Applicant's reporting to the CEO was temporary or pending the appointment of a new Head of Legal & Compliance, nor does it refer to the Organization Chart.

The Organization Chart is merely a diagram with no details or effective date.

The applicant's email dated 15.05.2019 shows his understanding of the Organization Chart. He expressed concerns and testified that he believed the chart was a plan to 435 be agreed upon before implementation, which was a piece of unchallenged evidence. The First Respondent’s (R1) arguments (in brief): [10] After reviewing the evidence, the Industrial Court concluded that 440 the applicant failed to prove dismissal by R1, making the issue of dismissal irrelevant. The court stated in its Award: "[42] Pursuant to Section 30(5) of "The Act" and guided by the principles of equity, good conscience and substantial merits of the case without regard to technicalities and legal form and after having considered the 445 totality of the facts of the case, all the evidence adduced in this Court and by reasons of the established principles of industrial relations and disputes as mentioned 32 above, this Court finds that the Claimant has failed to prove to the satisfaction of this Court on the balance of probabilities that he was dismiss from his employment with the 450 Company. As the Claimant is unable to prove that he was dismissed by the Company from his employment with the Company, the issue of the dismissal of the Claimant without just cause or excuse is no longer an issue that this Court needs to consider and determine in the circumstances of this case. 455 [43] Accordingly, the Claimant's claims against the Company hereby dismissed."

10.1 The Applicant claimed constructive dismissal by R1 at the Industrial Court, and it is trite that the applicant has the burden of proof to 460 prove his claim:

The appropriate test to apply in the present matter is the Contract Test and not the reasonableness test, which the Federal Court affirmed in the recent case of Tan Lay Peng v RHB Bank Berhad and Another [Civil Appeal No: 01(F)- 10- 465 04/2023(P)] which held as follows: "[18] It is a trite principle of law in Malaysia that the applicable test in constructive dismissal cases is the contract test and not the reasonableness test. The contract test is whether the conduct of the employer, in its action or series of actions, constitutes a 470 fundamental or repudiatory breach that goes to the root of the employment contract or where the employer has evinced an intention no longer to be bound by the express or implied terms of the contract. Constructive dismissal is where the employee claims that he has been dismissed due to the employer's conduct. This 475 can be said as "deeming dismissal" by the employer. The burden is on the employee to prove, on the balance of probabilities, that he has been constructively dismissed.” … "[30] Clearly, from the discussion and authorities cited above, the 480 reasonableness of the employer's conduct is not the legal test for constructive dismissal (emphasis is mine). However, it can be a factor to be taken into consideration in determining whether there is any fundamental breach of the contract of employment by the employer. Further, the reasonableness of the 485 employer's conduct per se is insufficient in establishing constructive dismissal. Its assessment must relate to the contract of employment and its fundamental or repudiatory breach."

The applicant claims constructive dismissal because his 490 position was purportedly demoted and/or relegated so that he would "no longer be heading compliance" when compliance was "half" of his job description.

R1 argued that the Applicant was merely reporting to the CEO temporarily as the position of Head, Legal & Compliance was 495 still vacant at that material time to ensure business continuity. This was considered by the IC as follows: "[26] The documentary evidence before this Court shows that the organisational chart puts the Claimant being the Legal and Contracts Manager under a new department namely Compliance 500 and Legal which department was vacant at the time. As the position of the Head Compliance and Legal was vacant at that time, the Claimant continued to report to the CEO of the Company." 505 10.2 It was pointed out by R1 that the Applicant:

Had also said that after sending an email dated 15.05.2019, he had purportedly spoken to 3 individuals, namely, En Dzulhadi Masdi, Puan Sha Hassan and the then CEO Dato Kriz Azman Abdullah, where Dato Kris Azman Abdullah 510 advised him to remain "status quo" which the applicant admitted during trial.

The learned counsel submitted that in his Statement of Case, the applicant has only pleaded that he had sent an email to one Dzulhadi, and no reference was made to the purported 515 meeting with En Dzulhadi, together with Puan Sha and Dato Kriz after issuing his email of 15.05.2019.

The applicant, as a legally trained person, did not issue an email to confirm the purported meeting or call the three persons above as his witnesses.

The applicant is a legally trained person, and R1 cited in support the case of VP Nathan & Partners v Subramaniam s/o Govindan Nair & Anor [2011] 5 MLJ 765 where the Court of Appeal had to determine whether the employees were forced to resign. The Court of Appeal took cognisance of the 525 fact that the employees were legally trained individuals and that the words adopted by the employees in their letters of resignation were not reflective of individuals who were forced to resign.

The Applicant was aware that his reporting to the CEO was a 530 temporary measure, and in the cross-examination of COW-1, his evidence on the search for a new candidate was never challenged.

In fact, he explained that R1 took a year to appoint the appropriate candidate because of the high-profile and 535 sensitive position and the need to find a suitable candidate.

The applicant’s position until he submitted his resignation remained the same as the Manager, Legal & Contracts.

10.3 The applicant's conduct of not pursuing his purported grievance 540 with R1 and continuing to work despite the future reporting line clearly states that the applicant will report to the Head of Legal and Compliance when the vacancy is filled.

10.4 The Chairman rightly found that the applicant failed to raise any 545 concerns about the organisational chart, which shows that the applicant will eventually report to the Head of Legal and Compliance once that position is occupied. Refer to paras 32, 33, and 34 of the judgment.

10.5 The applicant:

Failed to show that Compliance formed 50% of his functions.

It was submitted that the Audit Report is not direct evidence of the applicant exercising 50% of the Compliance functions.

It is also crucial to consider that COW-1 explained that the applicant only completed a one-off audit when he joined the 555 Company in July 2019, and compliance work was almost non-existent.

This was one of the risks he immediately identified as the Company expanded its business in other geographies and jurisdictions.

The Company recognised this; hence, the Compliance Counsel was created after the merger between Sapura Energy and OMV E&P sometime in 2019.

Compliance did not form 50% of the Claimant's duties. At that time, the Claimant was only asked to manage one compliance 565 audit, a one-off exercise.

10.6 The letter dated 29.04.2019 informed the applicant that his position was changed to Legal and Contracts Manager:

This was 13 months before he claimed Constructive dismissal.

The legal counsel submitted that due to the extended period, the applicant is deemed to have accepted the change in the position.

It will be noted that the Legal and Contracts Manager position is not the same as that of the Head, Legal and Compliance.

After the applicant tendered his resignation, he chose to serve his notice period of one month and did not leave the services of R1 immediately.

Even if there were any fundamental breaches (R1 submitted remained unproven), the applicant chose to stay another 580 month and serve his notice period.

It is crucial to appreciate that the claim of constructive dismissal is based on the premise that R1 has committed a fundamental breach that goes into the root of the contract and submitted the applicant's conduct of serving his notice period 585 is not consistent with such "fundamental breach".

Whilst the applicant claims that it was for "handover" in his letter of resignation, there has not been enough evidence adduced by the Claimant of proof of such handover. 590 Therefore, R1 submitted that the applicant failed to show that R2/IC committed any errors of law and asked that this application be dismissed with costs. THE LAW 595 [11] Lord Diplock set out the legal principle regarding judicial review in the case of Council of Civil Service Unions & Ors v Minister of Civil Service [1985] AC 374, which the Federal Court has applied in the case of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, FC as follows:

Lord Diplock defined the three grounds of review: (a) illegality,

irrationality, and (c) procedural impropriety:

‘Illegality’:

The decision maker must understand directly the law that regulates his decision-making power and must give effect to 605 it.

(ii) Whether he has or not is par excellence is a justiciable question to be decided.

‘Irrationality:

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

(ii) It applies to a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had used his mind to decide the question could have arrived 615 at it.

(iii) Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer.

(iv) ‘Irrationality’ by now can stand on its own feet as an accepted 620 ground on which a decision may be attacked by Judicial Review.

‘Procedural impropriety’:

Failing to observe basic rules of natural justice.

(ii) Failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. 630

Lord Diplock also mentioned ‘proportionality’ as a possible fourth ground of review, which called for development. [12] In a nutshell, the Federal Court in Ranjit Kaur a/p S Gopal Singh 635 v Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1, FC observed as follows:

The foregoing Rama Chandran decision by the FC has given the reviewing court a license to review decisions without restraint for substance, even when the decision is based on 640 a finding of facts.

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 645 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 in Rama Chandran may be wholly inappropriate.

The Federal Court, in Petroliam National Bhd v Nik Ramli 650 Nik Hassan [2004] 2 MLJ 288; [2003] 4 CLJ 625, FC also observed that the reviewing court may scrutinise a decision on its merits but only in the most appropriate of cases and not every case is amenable to the Rama Chandran approach.

A reviewing judge ought not to disturb the findings of the 655 Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to the same conclusion. [13] In a nutshell, judicial review is not an appeal of a decision but a 660 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 665 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 both sides and decided to exculpate Tan Seng Khow. It is not the High Court's function to exercise its supervisory jurisdiction 670 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 reasonably come to.

There is no basis for concluding that the decision of the 675 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 manifestly unreasonable that nobody could have reached it because there was no basis for the court to reach such a 680 conclusion. The Industrial Court had acted within the four corners of the dispute, and in arriving at its decision, it did not reach it absurdly. FINDINGS OF THIS COURT 685 [14] All things considered; I find as follows:

In exercising his discretion under section 20(3) IRA 1967, the HR Minister referred the applicant's claim for constructive dismissal on 17.03.2021, to be ventilated at the IC and registered as case No. 4/4-731/21, Industrial Court of Kuala 690 Lumpur.

Two months prior, on 01.01.2021, the IRA Amendments Act took effect on section 33C (appeal) and the removal of the Minister’s discretion under section 20(3).

Grounded on that reference by the HR Minister, the IC heard 695 the applicant’s claim `10.2.2023 and 24.2.2023, where a final award was rendered in IC Award No.1353 of 2023, dated 14.06.2023, dismissing the complaint, holding:

The claimant had failed to establish his claim.

The legal burden (sections101,102 and 103 EA 1950) is 700 always on the claimant to prove his case with compelling and persuasive evidence to tilt the scale of evidence in his favour.

There was no compelling evidence before the IC that the claimant was constructively dismissed from employment 705 by R1.

Consequently, the issue of dismissal without cause or excuse is no longer an issue to be examined and explored.

The issue of dismissal, therefore, in the finding of the IC, 710 does not arise as claimed by the complainant.

Aggrieved, the claimant sought a review of the IC’s decision under O.53 RC 2012 on 08.09.2023: Leave for JR was granted by this court on 16.10.2023.

In appraising the facts before me, I am guided by Weltex Knitwear Industries Sdn Bhd v Law Kar Toy & Anor [1998) 1 LNS 258/91998) 7 MLJ 359 that had observed:

If the dismissal is not disputed, the burden is on the company to show that such dismissal was done with 720 cause or excuse since, under the IRA 1967, all dismissal is prima facies done with just cause or excuse.

Where the employee disputes the dismissal, it is for the employee to establish that the dismissal was without cause or excuse.

Failing to establish the dismissal as wrongful or unjust, no onus falls on the employer to establish anything or that no such dismissal has occurred as alleged. 730

In the present case, since R1 denies dismissing the applicant, the applicant must prove otherwise with compelling evidence and not by mere conjectures or adverse suggestions. It is trite law that the Court only acts on proven facts and not mere suspicions or skewed interpretations of events to suit the claim 735 by the applicant. [15] In appraising the documents presented and all evidential materials, I am guided by the Federal Court in Tan Lay Peng v RHB Bank Berhad and Another [2024] MLJU 840, FC, that had cited and 740 followed the Supreme Court observation in Wong Chee Hong v Cathay Organization (M) Sdn Bhd [1988] 1 CLJ 45, SC is of relevance importance on constructive dismissal vis-à-vis s.20 of the Industrial Relations Act as opposed to the common law position:

The correct test to determine constructive dismissal cases is the contract test, not the reasonableness test.

If the employer is guilty of a breach that fundamentally goes to the root or foundation of the employment contract, evincing that the employer no longer wants to be bound to the terms of 750 the contract.

In such circumstances, the employee is entitled to treat the employment contract as terminated and consider himself dismissed. This was simplified in Bayer (M) Sdn Bhd v Anwar Bin Abdul Rahim [1996] 2 CLJ 49, HC, when it set four 755 conditions to be satisfied for constructive dismissal:

There must be a breach of contract by the employer.

The breach must be sufficiently significant to justify resignation.

The aggrieved employee must leave in response to the 760 breach and not for other reasons.

He must not occasion any undue delay in terminating the employment, or else he would be deemed to have waived the breach and affirmed the variation. 765 [16] Guided by the binding legal principles as seen in R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, FC, and Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1, the evidence before me, the submissions of the learned counsels, it is my findings that:

I am unconvinced with the materials from the claimant that he was dismissed as claimed.

The evidential materials do not fit the claim.

The fact that he voluntarily resigned from his position negates his arguments. I find it an afterthought.

Though the law does not prohibit his resignation as per the terms of the contract, the circumstances before me are such that it does not support his proposition of constructive dismissal to justify walking out of his employment. The essential facts are just not there.

As the R1 solicitors rightly pointed out, JR is not an appeal but a review of how the IC arrived at its determination. From the materials adduced, I do not agree that there had been any error of law or fact in the IC's decision: Harpers Trading (M) Sdn Bhd V National Union of Commercial Workers [1991] 785 1 MLJ 417, SC

In such circumstances, it does not support the unfounded legal proposition that the IC could be said to have acted beyond or in excess of its jurisdiction.

Therefore, I find no reason to interfere with the findings and 790 decision of the IC that I find to have correctly surmised the law and facts and the legal determination on the claimant’s claim. CONCLUSION [17] By and large, grounded on the foregoing paragraphs:

I am satisfied that no procedural non-compliance, illegality or irrationality would justify allowing this application (L1).

The claimant’s JR application in L.1/L.6 is hereby dismissed with costs of RM5,000.00 subject allocator, to be paid within 30 days from today. 800 Dated 10.03.2025. 805 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA KUALA LUMPUR 810 Parties: 815 S. Muhendaran together with Eisyarmily Akhtar Messrs. Muhendaran Sri for the Applicant Vijayan Venugopal together with Wong Kian Jun 820 Messrs Shearn Delamore & Co. for the First Respondent