In light of the COVID-19 outbreak and the need for social distancing, a common question being asked now is whether the Courts will start using video conferencing to conduct trials and hearings.
The use of video conferencing in itself is not new – Practice Note. 1/2013 for civil courts states that parties may seek permission for urgent proceedings to be conducted via video conferencing. Due to COVID-19 and the Movement Control Order (“MCO”), the civil courts have also allowed more hearings (where supported by a certificate of urgency) to be conducted online. We have also recently seen a Court of Appeal hearing live-streamed on the judiciary’s website.
What about the Industrial Court? Can unfair dismissal trials be conducted via video conferencing?
In Jagdhish Singh Gill Amir Singh v Bayer Cropscience (M) Sdn Bhd  2 LNS 0793, the unfair dismissal claim was a lengthy trial which lasted for 18 months, and was finally concluded with the aid of technology. Here, the Industrial Court allowed one of the foreign witnesses to provide evidence through video conferencing.
In addressing the usage of video conferencing, the Industrial Court acknowledged that there was no existing practice note to address the usage of video conferencing in the Industrial Court. As such, it laid down several considerations that must be taken into account on whether the Industrial Court should allow such application:-
- Whether evidence through video is prejudicial to any party;
- Whether the case can be expeditiously determined in accordance to equity, good conscience and substantial merits of the case without having regards to mere technicalities.
The Industrial Court had allowed the application for video conferencing in this case after considering among others the witness’ busy schedule, long hours taken to travel to Malaysia, costs involved for the Company and the swift disposal of the case. In deciding, the Court also held that the evidence of the witness in question did not materially or substantially prejudice parties’ right to cross-examine or re-examine witnesses, as everything can be seen and heard through video.
In contrast, the Industrial Court in Purushotman a/l N. Govindasamy v QI Services (M) Sdn Bhd (Award No. 1260 of 2015) rejected an application for a witness to give evidence by video conference. Unfortunately, the Award did not state the reasons why the Industrial Court refused to allow video conferencing.
It is still rare for trials in the Industrial Court to be conducted through video conferencing, although this may soon change given the COVID-19 outbreak. The judiciary has recognised the need to adapt to modern times and to utilise technology to aid in the expeditious disposal of cases, and the Industrial Court in particular is empowered under Section 29(g) of the Industrial Relations Act 1967 to “generally direct and do all such things as are necessary or expedient for the expeditious determination of the matter before it.”
Video conferencing is an obvious solution in these times of social distancing, but parties have to ensure that proper safeguards are in place to ensure that evidence being given by witnesses is not being tampered or coached, and no party will be prejudiced in its right to cross-examine a witness who testifies by video conferencing.
This article was written by Donovan Cheah and Amirul Izzat Hasri. Donovan has been named as a recommended lawyer for Labour and Employment by the Legal 500 Asia Pacific 2017, 2018, 2019 and 2020, 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.