Before 1.1.2021, representations for unfair dismissal were referred to the Industrial Court by the Minister of Human Resources (“HR Minister”). Any party wishing to challenge an Industrial Court award had to do so via judicial review.
With the Industrial Relations (Amendment) Act 2020 (“Amendment Act”), effective 1.1.2021, the role of referring cases to the Industrial Court shifted to the Director General of Industrial Relations (“DGIR”). Unlike the HR Minister, whose referrals involved discretion, the DGIR must refer cases automatically if conciliation fails. The Amendment Act also introduced a new appeal process to challenge Industrial Court awards, replacing judicial review.
However, uncertainty arose as to when the new appeal process applies — whether it is based on the date the representation is filed, the date of the award, or some other factor. Conflicting High Court decisions have addressed this issue.
The Court of Appeal has now clarified the position in Rosli bin Saad v S.G. Concrete Products (M) Sdn. Bhd. (Civil Appeal No.: P-04(W)-259-06/2023).
Brief Facts
- The Employees were both employed as lorry drivers in the Company.
- On 11.9.2020, the Employees filed a formal complaint with the Butterworth Labour Department that the Company had flouted minimum wages legislation.
- On 22.10.2020, the Employees were terminated on the grounds that they had stayed away from the workplace for four (4) consecutive days without reasonable excuse and breached section 15(2) of the Employment Act 1955.
- On 24.2.2021, the HR Minister referred the representation to the Industrial Court.
- At the Industrial Court, it was held that the Appellants’ dismissal was without just cause or excuse.
- Dissatisfied with the Industrial Court’s decision, the Company appealed to the High Court. At the High Court, the Company raised a preliminary objection that the Company ought to have filed a judicial review instead of an appeal at the High Court.
- The High Court dismissed this preliminary objection, holding that since the Industrial Court Award was issued on 14.11.2022, it is after the effective date of the Amendment Act and therefore appeal was the correct procedure.
- The Company appealed to the Court of Appeal.
Court of Appeal’s Findings
At the outset, the Court of Appeal noted that the representation was filed prior to 1.1.2021, but was only referred by the HR Minister to the Industrial Court after 1.1.2021.
The Court of Appeal referred to section 35 of the Industrial Relations (Amendment) Act 2020, which is reproduced as below:
“35. (1) Complaints made under section 8, disputes referred under subsection 9(1A), claims for recognition made under section 9, representations for reinstatement made under section 20 of the principal Act, and all proceedings commenced or awards made before the Industrial Court in relation to a reference under subsection 8(2A), subsection 20(3) and section 26 before the coming into operation of this Act shall proceed and have effect as if the principal Act had not been amended by this Act.”
The critical issue is the timing of the representation. If the representation was made before coming into force of the amended Act (ie: prior to 1.1.2021), the proceedings should be based on the unamended Act.
The Court of Appeal held that the High Court’s approach of emphasizing the timing of the award is wrong, as section 35 does not cater for a situation where an award is made after the Amendment Act came into force.
Applying this to the present case, the correct method to challenge an award based on a representation filed before 1.1.2021, would be by way of judicial review.
Key Takeaways
This decision is important for legacy cases that was referred by the HR Minister but have yet to be disposed or have just recently disposed by the Industrial Court.
In short, the proper method of challenge is dependent on when the representation was filed, and not when the Industrial Court award was issued:
- If the said representation was lodged before 1.1.2021, the proceedings should be based on the unamended Act and the Award, no matter when it was handed down, should be challenged by judicial review and not appeal.
- If the said representation as lodged after 1.1.2021, the Industrial Court Award should be challenged by appeal.
In this case, the Court of Appeal set aside the decision of the High Court and reinstated the Industrial Court Award on the sole basis that the method of challenge was wrong. Given that finding, the Court of Appeal did not find it necessary to consider the merits of the substantial appeal itself. Therefore, choosing the wrong method of challenge is fatal to the appealing party, as this could result in the appeal being struck off based on a preliminary objection.
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This article was written by Leow Ho Eng (Associate) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation.
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