In 2018, we wrote about an employee who had 14 unfair dismissal claims filed against his former employers. The employee’s litigious conduct inspired the Industrial Court to remind employers to carry out proper vetting of CVs “to save themselves time and money unnecessarily spent on litigation”.
This did not seem to deter the employee. In Khoo Kim Loang v ITZ My Treats Sdn Bhd (Award No. 1128 of 2021), the Industrial Court observed this serial claimant continued to file claims of unfair dismissal against his employers, increasing his total to 26 cases.
For this latest claim, the Industrial Court evaluated the evidence and upheld the dismissal. However, as a post-script, the Industrial Court had these observations:
“Though the Claimant did not have any legal representation, the Claimant seems to be well acquainted with industrial court practice and procedure, as he has been a familiar face in the Kuala Lumpur Industrial Court.
From the number of cases filed, the Court finds that the reason for the termination of the Claimant’s employment has always been his poor performance, unsatisfactory working attitude, inability to meet job requirements and not meeting expected performance standard and behavior.
Although the previous records of an employee in the Industrial Court may not be directly relevant to the allegations in a new case, the court can take judicial notice of the fact and can infer about the employee’s working attitude and credibility.
The Claimant seems not interested to work long in a Company and was just waiting to be terminated of his employment for reason best known to him.” (emphasis added)
While serial claimants of this magnitude are rare, this latest award does highlight important issues:
- The Industrial Court has no mechanism to summarily dismiss claims by a frivolous or vexatious employee, except in very specific circumstances relating to threshold jurisdiction.
- Here, there were six mention dates and it culminated in a full hearing. The date of the reference was in 2019 and the award was handed down in 2021, taking almost 2 years for a resolution.
- The Company had to appoint lawyers to defend them in this case (incurring cost). Even though they were ultimately successful, the Industrial Court does not award costs and the Company would have had to bear its own legal costs. In contrast, as the Claimant was unrepresented, he likely incurred minimum costs to litigate this matter.
- There is little legal recourse under our existing mechanism to prevent a vexatious employee from repeatedly filing meritless unfair dismissal claims. With the amendments to the Industrial Relations Act 1967 now in effect, the Minister of Human Resources no longer has any discretion to refer a matter to the Industrial Court. The referral is now passed to the Director General of Industrial Relations, who shall refer the matter to the Industrial Court if there is no settlement. There is no longer a filtering system at the pre-Industrial Court stage.
- While there could be an avenue to have the High Court declare a serial claimant as a vexatious litigant, it is questionable whether any company or employer would take on the additional costs to do this for the “greater good” of other employers.
This article was written by Donovan Cheah. Donovan has been named as a Recommended Lawyer for Labour and Employment by the Legal 500 Asia Pacific 2017, 2018, 2019, 2020 and 2021, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.
Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory. Have a question? Please contact us.