Discovery applications are commonly used in the civil courts to compel the other party to share documents, information, or evidence relevant to the case. They are also available at the Industrial Court, although the process and procedures may differ.
The Industrial Court provided some clarity on the necessary requirements in Roniza binti Ab Rashid v MR. DIY (Kuchai) Sdn Bhd (Award No. 2234 of 2023), where our firm successfully represented the Company in resisting an application for discovery.
Background Facts
- At the Industrial Court, the Claimant filed a discovery application pursuant to Rule 21B of the Industrial Court Rules 1967.
- She sought an order compelling the Company to produce various internal documents, including:
(i) Retail Management Department’s Operations Handbook;
(ii) Retailing Operations Handbook;
(iii) Rules or memos relating to whistleblowing; and
(iv) The video/audio recording of her domestic inquiry conducted via Google Meet. - The Claimant argued these documents were necessary to challenge the accuracy of the domestic inquiry minutes, and to demonstrate that her dismissal was unfair.
- The Company resisted the application on these grounds:
(i) Most of the requested documents were already provided in its bundle of documents;
(ii) The handbooks contained confidential internal procedures and were not relevant to the grounds of dismissal;
(iii) The whistleblowing memo had no direct bearing on the dismissal; and
(iv) No video/audio recording of the domestic inquiry existed, beyond the minutes already acknowledged and signed by the Claimant.
(v) The discovery application was filed late, disrupting the scheduled trial dates, and amounted to an abuse of process.
The Court’s Findings
The Industrial Court applied the principles on discovery applications at the Industrial Court from Yekambaran Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581, which require that:
- The documents sought must exist;
- They must be relevant; and
- They must be or have been in the possession, custody, or control of the other party.
On the video/audio recording of the domestic inquiry, the Company’s position was that no such recording existed. Since the Court cannot compel production of documents that do not exist, this part of the application was dismissed.
As for the handbooks and whistleblowing memo, the Court found that they were private and confidential in nature, and more importantly, not strictly relevant or necessary to determine whether the Claimant’s dismissal was with just cause or excuse.
The Court stressed that discovery applications must not become fishing expeditions as the Industrial Court acts according to equity, good conscience, and substantive justice under section 30(5) of the Industrial Relations Act 1967.
Key Takeaways
The burden of proof in direct dismissal cases lies on the employer. It is for the Company to adduce evidence to prove that the dismissal was with just cause or excuse. A Claimant cannot and should not attempt to compel wide-ranging discovery in hopes of finding documents that might assist their case.
Discovery has its place, but it is not automatic. Parties must show that the documents sought are necessary, relevant, and in existence. At the same time, this case reaffirms a core principle of unfair dismissal law: the employer bears the onus of proving that a dismissal was justified and must therefore decide what evidence to bring forward. If the employer elects not to adduce certain evidence and it is not compelled to do so otherwise, it does so at its own risk. Such omissions may ultimately undermine its case.
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This article was written by Zi-Han Lim (Partner) 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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