Yit Leong Crane Services Sdn Bhd v Letchumanan A/L Nadarajan (BA-16-17-04/2021)

This is an appeal from the decision of the Labour Court, Bangi, Selangor, which was delivered on 10.2.2021.

The pleaded case of the respondent at the Labour Court is as follows. The respondent was employed as a crane operator in Yit Leong Crane Services from 1.5.2013. His basic salary was RM6,000 per month with a fixed monthly allowance of RM2,000.

On 27.8.2014, Yit Leong Crane Services was incorporated under the then Companies Act 1965 with the name and style of Yit Leong Crane Services Sdn Bhd, the appellant herein. One of the directors of the appellant is one Tok Kok Leong (“Encik Tok”).

It is the respondent’s case that subsequent to the corporate exercise and the incorporation of the appellant in 2014, the respondent's employment was now under the appellant company with the same designation.

Unfortunately, the respondent was made bankrupt by a court order dated 1.12.2014. After the bankruptcy order was entered against the 3 respondent, the parties arranged that the respondent’s salary would be paid to a business concern. The business entity – known as Sri Multi Enterprise, a sole proprietorship - was owned by Shamini a/p Loxmanan, the respondent’s wife.

According to the respondent, he was dismissed from the appellant company by Encik Tok on 16.6.2020.

The appellant’s position at the Labour Court was that the respondent was never its employee since at all material times if at all, he was only an independent contractor through Sri Multi Enterprise. Therefore, the question of the respondent being the employee of the appellant did not arise.

At the Labour Court, the learned Assistant Director of Labour (“ADL”), after having heard the matter, ordered the appellant to pay the respondent the following:

Indemnity payment in lieu of an 8-week notice RM10,388.71;

Termination benefit RM19,726.02. The learned ADL dismissed the remaining claims for the June 2020 salary (15 days) and the balance of the bonus payment for the year 2019. [9] Aggrieved the said decision, the appellant company appealed to this Court under s 77 of the Employment Act 1955. 4 The preliminary objection [10] Learned counsel for the respondent has raised a preliminary objection in the manner in which the appeal was brought. [11] According to learned counsel for the respondent, the appellant did not file its notice of appeal within 14 days from the decision of the learned ADL as required under O 55 r 2 of the Rules of Court (“ROC”). Further, the appellant, learned counsel contended, did not file and serve the record of appeal within 1 month from the date of the filing of the Notice of Appeal as provided under O 55 r 4 of the ROC. [12] The bases of the respondent’s objections are as follows:

Although the Notice of Appeal was dated 22.2.2021, it was only filed at the High Court on 1.4.2021.

Even if we were to assume, for one moment, that the appeal was lodged at the Labour Court on 22.2.2021, the record of appeal should have been filed within 1 month from that date. In the circumstances, according to learned counsel for the respondent, the record of appeal should have been filed on or before 23.3.2021.

However, according to the Court’s record, it was only filed on 30.4.2021. [13] It is, therefore, the contention of learned counsel for the respondent that this appeal was not properly brought before the Court. 5 [14] In response to the preliminary objection, learned counsel for the appellant, in his written submission, has annexed an acknowledgement from the senior ADL that the latter received the Notice of Appeal on 23.2.2021. The acknowledgement was marked as “Lampiran A” of the appellant’s written submission in Encl 12. I do not with respect think that on an issue of this magnitude, where the legality of the notice of appeal is being challenged, it is sufficient for the respondent to prove the service of the notice of appeal from the Bar. [15] The proper way would be for the appellant to file an application under O 55 r 9 of the ROC for the leave from the Court for proof of service to be inserted in the additional record of appeal. O 55 r 9 states as follows: The High Court may at any time allow amendment of the memorandum of appeal or notice of cross appeal or other part of the record of appeal on such terms as it thinks fit. [16] Assuming for one moment that the Notice of Appeal was properly served on 23.2.2021, what about the record of appeal? Was it filed 1 month from 23.2.2021? Unfortunately, it was only filed on 30.4.2021, well after the 1-month time stipulated under O 55 r 4 of the ROC. [17] First things first. S 77(2) of the Employment Act provides inter alia that the procedure in an appeal to the High Court from the decision or order of the Director General of Labour (“DG of Labour”) shall be the procedure in a civil appeal from a Sessions Court. This means that the applicable law would be that of O 55 of the ROC. 6 [18] O 55 r 4 provides that the appellant shall, within 1 month from the date of filing of the notice of appeal, prepare and file the requisite number of other relevant documents, including the relevant pleadings, notes of evidence and the grounds of judgment. [19] The pertinent question is, who is under the duty to prepare the record of appeal in an appeal made against the decision of the DG of Labour? Can the appellant rely on the Labour Office to prepare the record of appeal on behalf of the appellant? Is it even the duty of the Labour Office to prepare the same? Since O 55 r 4 employs the word “the appellant shall within one month” prepare the record of appeal, my view is that the duty to prepare and file the record of appeal lies on the appellant. Nowhere in the Employment Act or the ROC that says that the Labour Office is to prepare and file the record of appeal on behalf of the appellant. Unless otherwise provided for in either the Employment Act or the ROC, the appellant cannot delegate the duty to the Labour Office. [20] If any authority is needed on the aforesaid proposition, it can be seen in the case of Maranatha Tours & Travels Sdn Bhd v. Ampang Specialist Centre Sdn Bhd [1997] 1 LNS 335, where it was held that the duty to prepare a proper record of appeal lay on the appellant. The appellant could not blame the failure to file the same on other parties. The High Court echoed the same proposition in Kong Ah Choo v Dato’ Kamal YP Tan & Anor [2017] 1 LNS 1032. In dismissing the appeal, the learned JC referred to Maranatha Tours and held as follows: The burden is on the Plaintiff as the appellant in this case, to supply the relevant documents following Order 55 rule 4(1) and rule 5(3) of the ROC 2012. 7 [21] Therefore, it is clear that the effect of reading together s 77 of the Employment Act and O 55 of the ROC would be that it is incumbent on the appellant to file the record of appeal within the stipulated time. If it becomes apparent that the record of appeal could not be filed on time, the appellant could always apply to extend the time under O 3 r 5(1) of the ROC. [22] Unfortunately, the appellant did nothing. This matter was raised by learned counsel for the respondent when the case was called for case management on 19.5.2021. Despite the indication given by learned counsel for the respondent on the delay, the appellant did not regularise the filing of the record of appeal. By counsel’s admission, the record of appeal was only filed on 30.4.2021 and served on the respondent on 4.5.2021: P/Perayu: Untuk makluman Mahkamah, Pihak Perayu telah memfailkan Rekod Rayuan berserta alasan penghakiman dan nota keterangan pada 30.4.2021. Rekod Rayuan juga telah diserahkan kepada Responden pada 4.5.2021. There was no explanation for the delay, neither was there any indication at all by the appellant that it would file an application to extend the time to file the appeal record under O 3 r 5(2), which provides: The Court may extend any such period as referred to in paragraph (1) although the application for extension is not made until after the expiration of that period. 8 [23] What would be the implication of filing the record of appeal out of time? If the record of appeal is not filed or served within the prescribed time and no sufficient ground is shown for the delay, the appeal may be dismissed; Michael Chong Shui Keong @ Michael Chong v Fong Shui En [1996] 5 MLJ 177. [24] A similar proposition can be seen in Sarawak Electricity Supply Corporation & Ors v Kwan Choon Kiong [2003] 4 CLJ 381 Lau Bee Lan JC (now JCA) held as follows: Hence, following Michael Chong Shui Keong (supra), I would concede with learned Counsel for the Respondent that the delay in serving the Notice of Appeal as required under O.49 r.2(6) of the SCR and the omission on the part of Counsel for the Appellants to apply to the High Court for an extension of time by an application supported by affidavit explaining the reasons for delay is crucial and it warrants the Court to exercise its discretion to dismiss the Appeal in accordance with O.55 r.4(3) of the RHC. [25] But as I indicated earlier, there is another aspect of this appeal that I find wanting. It is this. Despite knowing that it was out of time to file the appeal record, the appellant company did not file any application for the extension of time. This to my mind is intentional and highly regrettable. In Yong Kon Fatt v Indah Water Konsortium Sdn Bhd [2009] MLJU 212, Zainal Adzam J held as follows: In conclusion, I have to say that the conduct of the solicitors for the appellant in this application was seriously wanting in diligence. They filed the Record of Appeal out of time on 9 30.5.2008 without leave or order for an extension of time and this fact was admitted by the appellant in his affidavit. From that date onwards therefore it cannot be accepted that they were not aware that they are out of time. If they were, it was not explained by the appellant's affidavit-in-support to this application. When the appellant's solicitors filed the Record of Appeal out of time at the High Court registry they even had the temerity in their covering letter (enclosure 4) to state: "Kami memohon agar dapat mahkamah menetapkan tarikh perbicaraan yang awal bagi kes di atas". The appellant too would have to be considered as having full knowledge of the circumstances of his non-compliance as he was the one who attested the affidavit-in-support to this application. On this matter the Court of Appeal in Khor Cheng Wan v. Sungai Wang Leasing Sdn. Bhd. [1996] 1 MLJ 223, 229 reminded all litigants for the need to be diligent in pursuing their rights. Findings [26] For the aforesaid reasons, this appeal is not properly brought before this Court. [27] The preliminary objection is allowed and the appeal is dismissed with costs of RM5,000 subject to allocatur. Tarikh: 02 Disember 2021. (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Shah Alam.