KATEIA MOHIEELDIN MOHAMMED ZAIED ... RESPONDENTS 2 GROUNDS OF JUDGMENT (Judicial Review) BACKGROUND FACTS [1] This is an application by the Applicant (The British School of Kuala Lumpur Sdn Bhd) for judicial review pursuant to Order 53 rule 3 of the Rules of Court 2012 (ROC 2012). The Applicant has sought from this Court inter alia for an order of Certiorari and an order of Prohibition against the 1st Respondent, the Minister of Human Resources (“Minister”) in referring (“Reference”) the representation (“Representation”) made by the 3rd Respondent (Kateia Mohieeldin Mohammad Zaied) who is the ex-employee of the Applicant (“Employee”) to the Industrial Court which is the 2nd Respondent for an Award or Decision. [2] Succinctly put, it is the Applicant’s case that the Minister had misdirected his discretion under section 20 of the Industrial Relations Act 1967 ( the Act) in making such Reference regarding a Representation which in essence allegedly is not a case fit to be referred to the Industrial Court. 3 [3] The Applicant is a private co-educational international school which facilitates education based on the curriculum of England and Whales. [4] The Employee commenced her employment as a Nursery Teacher with the Applicant on 15.8.2009. (See exhibit EVC-1 of the Applicant’s Affidavit in Support (“AIS”)). [5] Thereafter, concerns and issues arose regarding the Employee’s alleged tardiness, absenteeism without notifying the Applicant and also leaving work early in her performance under the Employment Contract. Evidence of which has been categorically appended in Exhibit EVC-1-A of the Applicant’s Affidavit in Reply against the Minister’s Affidavit in Reply. (There are contentions made against these evidences by the Employee very late in her case (in her Affidavits in reply). This Court shall delve into these contentions later in this judgment) [6] Entailing her poor performance and absenteeism, a meeting was held late in 15.2.2013, the same day the Employee was absent from work for the 3rd time that week. One David Kirkham (“Witness”) was 4 appointed to oversee and witness the meeting without a single iota of protest by either of the parties. During the meeting, the Employee was informed of the concerns, complaints and emails from parents who were concerned with their children’s education due to the Employee’s absenteeism and tardiness. Thereafter, the Employee was given a tri-faceted Option with 3 options to choose from (“Option”). The Option is NOT an ultimatum leading to termination or resignation [7] At this juncture, this Court must highlight that the option is not a simple 2 choices ultimatum. A simple appreciation of the full extent of the factual matrix would reveal that the Option was tri-faceted. The Option at any material time is NOT an ultimatum of either resign or be terminated/dismissed. Distinctively, the tri-faceted Option instead offers the following options, WITHOUT any of the options drawing an inevitable conclusion of termination/dismissal: i. Shape up and continue with the employment; or 5 ii. Risk disciplinary actions if the same poor performance during employment is continued after the meeting; or iii. Voluntarily resign with added benefits should the Employee could not promise appropriate performance of her obligations under the Employment Contract. Warnings and show-causes are irrelevant [8] Furthermore, it must be highlighted here that the risk of disciplinary action is NOT with regard to the Employee’s past misconducts before the meeting, but instead the probable future continued misconduct should the Employee opts to continue with the employment. Thus, the question of proper warnings and show-causes is irrelevant in the present case as there are no future misconducts committed since the Employee opted to voluntarily resign from her employment. The tri-faceted Option has been reported in the following excerpt of the Witness’s Report. (See Exhibit EVC-5 of the AIS): 6 “Adam asked Katya how did she think she was coping with the demand of the job and her husband’s current health situation, she said she was struggling but wanted to work. Adam explained to Katya that we were happy for her to continue in work but the current levels of absence…looked very likely to increase given her current situation. There had been verbal concerns raised by some of her class parents…and we received a letter from a concerned parent who…voiced her concerns over the disruption to this continued absence was having on her daughter in the class. Adam spoke very calmly and explained to Katya that from an employer’s point of view that continued absences over and above the current allocation…would lead to disciplinary action…He then showed her two examples of warnings that she could expect – failure to contact employer when absent and failure of duty of care. Adam suggested that if Katya wanted to look after her husband she could resign and not lose any benefits…He said he could try to get her pay until the end of term, with all her benefits. This was offered only as an option. Katya asked for time to talk it over with her husband. Adam agreed.” 7 [9] After given time to consider the Option, another meeting was held to discuss the Employee’s decision over the Option given in the previous meeting with Adam and the Witness. This meeting was conducted on the immediate weekday after the previous meeting, on 18.2.2013 attended by the Witness, Emma Clearly (“Emma”) and the Employee. The Employee informed that she has already emailed her decision to resign to Adam even before the meeting. The conduct of the meeting was reported in the Witness’s report dated 27.5.2013 (see Exhibit EVC-4 of the AIS) and also Emma’s report of even date (see Exhibit EVC-5 of the AIS). Upon the Employee’s decision, Emma proceeded to draft the resignation letter which was later read and voluntarily signed by the Employee. Threat is irrelevant during the 18.2.2013 meeting [10] It must be highlighted at this juncture that any averment of threat during this meeting is verily irrelevant as the decision to resign as per the terms agreed was reached by the Employee even before the meeting itself vide the alleged email to Adam. Thus, it cannot be said 8 that any statements during the meeting had cornered the Employee in making her decision to sign the resignation letter. [11] The terms of the voluntary resignation are as follows (see exhibit EVC-3 of the AIS): “i. The employment will officially end on Monday 18th February 2013. ii. The employee will be paid in full up until the end of academic term 2, Wednesday 22nd March 2013. iii. The employee will receive 2 business class one way flights to destination of choice.” [12] In compliance of the above resignation letter, the employee’s salary was paid (up to even 31.3.2013) into the Employee’s husband’s account on 26.3.2013, which was the usual payment arrangement between the Applicant and the Employee. 9 [13] At this juncture, the overwhelming conclusion is already that there is a mutual settlement of the concerns between the Applicant and the Employee. [14] However, 10 days after the voluntary resignation, the Employee has issued a letter dated 28.2.2013 to the Applicant alleging that she was instead dismissed from her employment. (See Exhibit EVC-8 of the AIS): “I was further informed if I did not sign a particular document, I would be dismissed. Under these circumstances, I signed a document dated 18th February. This is to put on record that I consider the actions of the school as amounting to dismissal…” There is no threat leading the Employee to sign the resignation letter [15] Again, the assertion of threat is negated by the Employee’s own reported assertion that her decision to resign was already emailed to Adam even before the meeting on 18.2.2013. 10 [16] The Employee proceeded to file a representation to the Industrial Relations Department. Following that representation the Applicant and the Employee were called for a conciliation meeting on 29.5.2013 vide a letter issued by the Industrial Relations Department. (See Exhibit EVC-9 of the AIS). [17] Following the letter calling for the conciliation meeting, the Applicant had duly furnished the Industrial Relations Department with the requisite Employer’s Information Form under section 20 of the Act. A simple scrutiny of this Information Form would show that the Applicant has sufficiently furnished all the facts underlying the Employee’s voluntary resignation covering the whole extent of the following: a. Employee’s tardiness, absenteeism and overall poor performance; “The employee had often been late, absent without medical leave and without informing the School and leaving work early throughout her employment. 11 Furthermore, the Employee failed to submit an Assessment of her class in July 2011…” b. The first meeting on 15.2.2013 where the Employee was given the tri-faceted Option; “The Employee was absent on Friday 15.2.2013. This was the 3rd time that week that she was absent…At the said meeting…If the Employee continued being absent without informing the School, the School would have no choice but to commence disciplinary proceedings. The decision whether the Employee should resign or continue to work at the School with consistent attendance was left to the Employee…” c. Complaints and concerns of parents regarding Employee’s poor performance; “The School had received e-mails from parents who voiced their concerns on the unsettling effect of the Employee’s extended and 12 unplanned absences on their child. Also, parents did e-mail the School as they were unhappy with the way the Employee handled their child concerning swimming lessons.” d. The fact that the Employee could not guarantee her consistent attendance to work; “The School asked the Employee how she would cope with the demands of her job and her husband’s ill health, as the School needed her to be consistent with her attendance at work. The employee advised that she could not guarantee her consistent attendance at work.” e. The fact that the Employee was given the whole weekend to consider the option; and “The decision whether the Employee should resign or continue to work at the School with consistent attendance was left to the Employee to mull over the weekend.” 13 f. The fact that Employee was not dismissed and advised of her own voluntary resignation on 18.2.2013: “On 18.2.2013, the Employee advised the School that she had decided to resign from her employment with immediate effect.” [18] During the conciliation meeting, the Applicant has made a full and sufficient statement of fact underlying the Employee’s voluntary resignation. During this meeting, there was never any contention against the evidence of the Employee’s poor performance. The only contention raised by the Employee was that she was forced to the sign the resignation letter and she asked to be re-instated to her former occupation as a Nursery teacher with full salary and benefits. [19] Another conciliation meeting was conducted on 5.6.2013 in which the Applicant had furnished all the supporting documents and advised the Industrial Relations Officer of its decision to not reinstate the Employee. (See Exhibit EVC-11 of the AIS for the letter and enclosed supporting documents) 14 [20] On 14.6.2013 the Applicant proceeded to furnish a written representation to the Industrial Relations Department echoing the material facts and contemporaneous documents of its contention with a request that the same would be represented to the Minister to enable him to exercise his duty under the Act. (See Exhibit EVC-12 of the AIS) [21] The same representation was informed to have been forwarded to the Industrial Relations Department in Putrajaya vide a letter dated 28.6.2013 which was received by the Applicant on 9.9.2013. (See Exhibit EVC-13 of the AIS) [22] Entailing the above, the Applicant was informed vide a letter dated 28.8.2013 from the Industrial Relations Department which was received by the Applicant on 11.9.2013 that the Minister has decided to refer the Employee’s Representation to the Industrial Court for adjudication. [23] The Applicant’s case is against this Reference. The Applicant’s case can be summarised in the following manner: 15 [24] The Minister had misdirected himself in inappropriately exercising his discretion under Section 20 of the Act on the grounds that: i. The Minister had failed to properly appreciate the factual matrix of the case. In that the Minister had failed to consider facts which he ought to consider and had considered matters which ought not to consider; and; ii. The Minister had failed to identify that the case being a settlement vide a voluntary resignation to be a case unfit to be referred to the Industrial Court as it goes against the purpose and the policy of the Act itself. [25] Now, it is plain to this Court that the 2nd ground of contention of the Applicant can only be answered if the 1st ground of contention has been determined. Thus, this Court shall first delve into the underlying facts of this case and identify if there were indeed any misdirection on the part of the Minister in exercising his discretion under section 20(1) 16 of the Act in referring the representation to the Industrial Court for adjudication. HAVE THE MINISTER PROPERLY APPRECIATE THE FULL FACTUAL MATRIX OF THE CASE? [26] There is little dispute on the underlying law and principle governing the Minister’s duty to examine and appreciate the full facts of the representations and report he received from the Director General of Industrial Relations regarding the dispute and the conduct of the conciliation meetings. [27] This Court is guided by the High Court decision in Chan Soon Lee v YB Menteri Sumber Manusia Malaysia & Anor [1998] 5 CLJ 133 at page 160: “Just as a workman is entitled to the said protection, similarly the law recognises the right of an employer to dismiss his workman with just cause or excuse. The minister when acting under s. 20(3) of the Act has to see that these two distinct rights are safeguarded based on the facts and material placed before him in the notification made 17 to him by the director-general under s. 20(2) of the Act…the role of the minister is to ascertain whether on the facts and material placed before him, the representation raises serious questions of fact or of law calling for adjudication by the Industrial Court.” [28] On the same principle, the Employee in its submissions has referred to the Federal Court decision in Exxon Chemical (Malaysia) Sdn Bhd v Menteri Sumber Manusia Malaysia & ors [2007] 2 CLJ 97: “It meant that there should be an objective examination of the factual matrix available before the Minister in order to ascertain whether a reasonable person, in similar circumstances, would have arrived at the decision which the Minister had done.” [29] It is also a proof of a misdirection of a Minister’s discretion if it can be proven that he has either considered irrelevant facts or failed to consider relevant facts. This Court is guided by the case referred by the Employee herself in Malayan Banking Bhd v. Association of Bank Officers, Peninsular Malaysia & Anor [1988] 1 CLJ (Rep) 183 : 18 “…the Court can interfere with the Minister’s decision if he…has taken into consideration matters which he ought not have taken into account or vice versa; or has otherwise gone wrong in law.” [30] The Minister in his submission adds that the Minister in exercising his discretion in referring a representation to the Industrial Court should only consider facts and matters which were furnished to him by the DGIR and not to external facts which were raised after his exercise of discretion. The Minister fails to appreciate the fact that there was never a threat of dismissal vide an ultimate either to resign or be terminated OR the Minister has wrongfully considered the non-existent fact of an ultimatum or threat. [31] Against the vivid facts presented vide the Applicant’s Information form and Written representation the Minister surprisingly has misdirected himself in concluding a fact that the Employee was faced with an ultimatum either to resign or face termination in paragraph 14 of the Minister’s Affidavit in Reply. This is by and large not at all the fact underlying the Employee’s voluntary resignation. It is reiterated here 19 that the tri-faceted Option instead offers the following options, WITHOUT any of the options drawing or risking an inevitable conclusion of termination/dismissal: i. Shape up and continue with the employment; or ii. Risk disciplinary actions should the same poor performance during employment is continued after the meeting; or iii. Voluntarily resign with added benefits should the Employee could not promise appropriate performance of her obligations under the Employment Contract. [32] The Option is immensely distinct from what was considered as fact by the Minister. The fact could not be more different. There was never a threat of termination/dismissal. In absence of such threat, it can never arise any allegation of forced resignation or termination. Essentially, the Employee would NOT face termination even if she should choose not to resign. The Minister is wrong in considering a misconceived fact that the settlement through resignation is instead a termination/dismissal 20 [33] It is on the Employee’s own admission to not being able to perform her employment with consistent attendance that the Employee opted to resign with the added benefits from the settlement. Indeed there was a settlement here in which the Employee would be able to make the best out of the given circumstances that she is not able to perform her obligations under her Employment Contract. [34] Such resignation after being informed of poor performance is indeed a valid resignation. This Court is guided by the case of City-Link Express (M) Sdn Bhd v Greenson Dauk [2002] 3 ILR 1219: “He may be told of his failure to perform satisfactorily and/or of his misconduct and warned that his future prospects in the employer’s establishment are bleak if he does not shape up. The issue of resignation may well crop up. Where an employee who had been told of the several respects in which he has failed to perform, or to meet the standards of conduct expected of his employer, decides that it would be wise to make the best out of a bad situation and that it would be in his interest to resign it would be amatter of some difficulty for the court to find that the claimant left the employer because he had been forced to tender his resignation. To do so 21 would be to ignore the reality of workplace dynamics and interaction between employer and employee.’’ [35] The above excerpt is verily similar and applicable to the present case. The Employee was informed of her poor performance, and upon realization that she could not perform her obligations the Employee herself saw that it is much more desirable to tender her resignation. Indeed this resignation is a valid resignation in settlement of the parties’ dispute. [36] Furthermore, the mere fact that the Applicant is the Employer of the Employee does not raise a presumption of undue influence/pressure to vitiate the valid voluntary resignation. The Court is guided by the High Court decision in Starhill Golf Resort Berhad v Mahkamah Perusahaan Malaysia & Anor [2000] 1 LNS 149: “There is no presumption of undue influence in an employer and employee relationship…” The Minister is wrong in considering the absence of warnings or show-cause by the Applicant 22 [37] One of the grounds the Minister finds it fit to refer the representation to the Industrial Court was the fact that the Applicant never gave warnings or opportunity to show-cause to the Employee. (See paragraph 22(e) of the Minister’s Affidavit in Reply) [38] This clearly is an irrelevant fact to be considered. There’s no necessity for cautions or warnings as of yet. The report of the meeting clearly shows that these disciplinary actions would only become relevant if the Respondent should continue to be absent if she opted to continue employment from the Option. Thus, the question of proper warnings and show-causes is irrelevant in the present case as there were no future absenteeism committed since the Employee opted to voluntarily resign from her employment. The Minister admits to not having knowledge of salient facts leading up to the Employee’s voluntary resignation [39] It is indeed alarming that the Minister himself would admit to having no knowledge of salient facts which were already furnished to the DGIR and to his Office vide the Employer’s Information Form (Exhibit 23 EVC-10 of the AIS) and the Applicant’s Written Representation (Exhibit EVC-1-A of the Applicant’s Affidavit in Reply to the Minister’s Affidavit). [40] The Minister had averred in paragraph 12 of his Affidavit in Reply that he has no knowledge of the matters averred in paragraphs 6 and 7 of the AIS. Paragraph 6 and 7 reveals a succinct statement of salient facts which led to the resignation of the Employee: “6. The 3rd Respondent had in the course of her employment often been late, absent without medical leave and without informing the Applicant and also leaving work early. This resulted in the Applicant having to make last minute arrangements for additional staff members to cover the 3rd Respondent’s classroom until her arrival at work…