29 August, 2018
Here are five practical takeaways pertaining to an unfair dismissal claim that has been referred to the Industrial Court. The information in this article should be helpful to both employees and employers.
#1: Your Case Number
Once a complaint of unfair dismissal has been lodged and after parties have attended a conciliation meeting at the Industrial Relations Department, the Minister of Human Resources will refer the complaint to the Industrial Court (“Court”) to be adjudicated.
A case number will be registered in the Industrial Court which will be notified to you. The case number acts like an identification number of your case in the Court. A typical case number will look like this:
13/4-12345/18
For practical purposes, the starting number (in this case no.13), indicates the Court number that your case is registered in. This means that once a case number has been assigned, you should be able to find out which Chairman will be hearing your matter, since each Court has a specific Chairman. The Court number is also useful when locating the courtroom.
The middle number (in this example, 4-12345) indicates the nature of your case, and the individual reference number for your file. For example, the first number “4” indicates that it is an unfair dismissal claim, and the numbers “12345” is the individual case number.
The last two numbers (in this example, 18) is the year your case is registered.
#2: Do You Need A Lawyer?
It is not mandatory to engage a lawyer to represent you in the Industrial Court. Claimants can represent themselves, and Companies can have an employee represent them (eg: an inhouse counsel, a human resources personnel, or an industrial relations personnel)
However, as the Court’s process and proceedings share some similarity with civil courts and are subject to certain statutes and regulations, it is always advisable to obtain legal advice or legal representation in Court. A lawyer would be more familiar with the processes, drafting of cause-papers require, examination of witnesses, crafting out arguments, and handling oral advocacy.
Some parties are reluctant to engage lawyers because of the costs involved. Certain bodies like the Malaysian Trade Union Congress (“MTUC”) and the Malaysian Employer’s Federation (“MEF”) are also able to represent parties. While MTUC and MEF representatives would have experience in representing parties in a dispute, they are not practicing lawyers.
Once representation is appointed (whether lawyers or otherwise), you do not need to attend Court unless you are specifically directed to (eg: for mediation), or for trial (where you will need to testify as a witness).
#3: What are Cause-Papers?
Cause-papers are documents that are required to be filed in Court in order for the Court to understand what your matter is about.
Once you have attended the first court date, the Chairman would usually give directions for a list of cause-papers to be filed. The typical sequence and summary of cause-paper is as follows:-
- Statement of Case, filed by the Claimant (a brief statement of the Claimant’s unfair dismissal case);
- Statement in Reply, filed by the Company (a reply and defence of sorts to respond to the Claimant’s allegations)
- Rejoinder, filed by the Claimant (a further reply to the Company’s defence in the Statement in Reply);
- Bundle of Documents, usually filed separately by each party (generally a compiled list of documented evidence to support the parties’ respective cases); and
- Witness Statements, filed by each party (statements by witnesses that would be called in to support the case, usually in a Q&A form).
#4: What are mentions, hearings, mediation?
There are different names to each type of Court attendance and these names bring about different purposes for the attendance in Court:
- Mentions are the most common type of court appearance and are primarily administrative in nature. Their primary purpose is for the Court to be updated on the status of the case eg: whether all cause-papers are filed as scheduled, whether any party needs an extension of time, or to fix trial dates or other court attendances. If you have appointed a lawyer, you do not have to attend mentions personally unless specifically directed by the Chairman.
- Mediation is called for parties to reach an amicable settlement of a case. During a mediation, the Court would meet the representative of the Company and the Claimant himself/herself to understand the case before listening to proposals of settlement. Personal attendance from both parties is mandatory in such situations. For the Company, it is advisable to have someone attend who has a proper mandate for settlement, in order to make the mediation productive.
- Early Evaluation is optional, and is a situation where another Chairman (not the Chairman hearing your case) will perform a brief evaluation of the strengths and weaknesses of each party’s case. The purpose of the evaluation is to allow parties to have an independent, third party’s assessment of the case, which would hopefully manage each party’s expectations when it comes to settlement. Early Evaluation may aid in settlement negotiations since it will help parties adopt a more realistic approach to their settlement proposals.
- Hearing or Trial is where the substantive merits of the claim is heard before the Chairman. In a trial, witnesses are called to testify and evidence will be adduced. A Claimant must personally attend the trial since they have to testify on their own behalf. Company witnesses will be the relevant employees who have knowledge about the Claimant’s unfair dismissal and who can testify about the relevant facts supporting the reason to terminate the Claimant.
#5: Miscellaneous but Practical Information
Other miscellaneous practical matters that parties should know:
- the Industrial Court, unlike the Civil Courts and other governmental departments starts at 8.30 a.m.;
- the Kuala Lumpur Industrial Court was formerly located at the Straits Trade Building (opposite Dataran Merdeka). Since December 2017, it has since shifted to Wisma Perkeso located along Jalan Tun Razak;
- the registry or filing centre of the the Kuala Lumpur Industrial Court is located at the 14th Floor of Wisma Perkeso. Any cause-papers involved must be filed there with a covering letter;
- it is important to arrive earlier as parties would need to register themselves with the respective Court Interpreter in charge. The location of the Court interpreter would depend on the floor the Court is located in. There will usually be a sign board or name plate to indicate where each interpreter is sitting.
- Parking in the Kuala Lumpur Industrial Court is very limited. However, there is an open air car park on the ground floor next to Wisma Perkeso.
- Some courts may be equipped with digital recording (audio/video), and a CD of the trial may be obtained upon application to the Court and paying the prescribed fee.
- When testifying in Court, Chairmen should be addressed as “Yang Arif” or “My Lord” or “My Lady”. Witnesses should speak slowly, loudly and clearly. Even where digital recording is available, the Chairman (and the lawyers for each side) may need to take down notes of the witness’ testimony. A witness who speaks too fast or softly may make this difficult and delay the process.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
