Once a trade dispute is referred to the Industrial Court, the Court is generally considered to have the necessary jurisdiction to hear and resolve the issue. But what if a party wants to challenge the Court’s jurisdiction? Should this challenge be brought through a judicial review at the High Court, or is an application to the Industrial Court itself sufficient?
In Institut Integriti Malaysia v Roziah Harun & Anor [2024] CLJU 1817, the Court of Appeal clarified that a party can challenge the Industrial Court’s jurisdiction by submitting an application directly to the Industrial Court. It is not strictly required to file a judicial review.
Brief Facts
- The Claimant was an employee of the Institut Integriti Malaysia (“Institute”) and was dismissed for misconduct.
- After the matter was referred to the Industrial Court, the Institute filed an application to strike off the Claimant’s case (“Application”), by way of sections 29(fa) and 29(g) of the Industrial Relations Act 1967 (“IRA 1967”).
- The Application was filed on the basis that the Industrial Court had no jurisdiction, as the Institute is a government agency and was therefore protected under section 52 of the IRA 1967.
- The Industrial Court allowed the Application, finding that it lacked the threshold jurisdiction to hear and determine the matter due to section 52 of the IRA 1967 (“IC Decision”).
- Dissatisfied with the IC Decision, the Claimant filed an application for judicial review to the High Court.
- The High Court reversed the IC Decision on the basis that (i) it is not clear that section 52 of the IRA 1967 applied to the Institute and (ii) if the Institute wanted to challenge the jurisdiction of the Industrial Court, the Institute should have sought judicial review against the Director General’s reference to the Industrial Court (“HC Decision”).
- Dissatisfied with the HC Decision, the Institute appealed to the Court of Appeal.
Court of Appeal’s Decision
The Court of Appeal held that Section 29(fa) of the IRA 1967 provides that the Industrial Court may “order a case to be struck off or reinstated“. Although there is no clear explanation given by the legislature as to the purpose of this sub-section, it is an error to read words that do not appear in section 29(fa) of the IRA 1967 and construe it restrictively. This is because Parliament has left open the circumstances or the occasions on which the Industrial Court may exercise its power under section 29(fa) of the IRA 1967 to strike out a case.
When section 29(fa) of the IRA 1967 was inserted, Parliament was deemed to know the law, particularly the ruling of Kathiravelu Ganesan & Anor v Kojasa Holdings Bhd [1997] 3 CLJ 777, which held that challenges to the Industrial Court’s jurisdiction must be carried out by way of judicial review (save for representations filed out of time). Therefore, Kathiravelu (supra) cannot be used to insist that the Institute ought to have filed for judicial review to quash the reference.
Where the evidence is clear and the issue can be dealt with summarily, it is open for a party to file an application via section 29(fa) of the IRA 1967 and have the case struck out based on a jurisdictional objection under section 52 of the IRA 1967.
The Court of Appeal also went on to hold that the Institute is a government agency within the meaning of section 52 of the Act, although this part of the decision is not the focus of this article.
Consequentially, the HC Decision was reversed, and the IC Decision was reinstated.
Key Takeaways
This clarifies an important point of practice in challenging the Industrial Court’s threshold jurisdiction. Parties can challenge the Industrial Court’s jurisdiction directly though the Industrial Court itself, via section 29(fa) of the IRA 1967. It is not necessary to first try to quash the Director General’s reference via judicial review.
Similar to its civil courts counterpart, section 29(fa) of the IRA 1967 should only be used in straightforward cases where the evidence is clear and the issue can be dealt with summarily. If the facts are convoluted or viva voce evidence is required, it is likely that section 29(fa) of the IRA 1967 would not be suitable.
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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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