8 September, 2018
The tail end of an unfair dismissal case is the issuance of a court award (“Award”) which sets out the Industrial Court’s decision and the grounds for the decision with reference to evidence adduced in trial. In an unfair dismissal case, there is only one “winner” – the unfair dismissal claim is either allowed, or it is dismissed.
What happens if the losing party is dissatisfied with the Industrial Court’s decision?
Unlike in the civil courts, litigants do not have an automatic right to appeal. This is enshrined through Section 33B of the Industrial Relations Act 1967 which states that an award, decision or order of the Industrial Court is final and conclusive and shall not be challenged, appealed against, reviewed, quashed or called into question in any court.
That being said, the Courts have since held that Section 33B of the IRA does not oust the inherent supervisory power of the High Court to quash Awards which are made without or in excess of jurisdiction, or where the Industrial Court has done or failed to do something which rendered its decision a nullity.
As such, it is possible for a dissatisfied party to apply to the High Court to review an Award of the Industrial Court, under a mechanism known as “judicial review”.
What is judicial review?
In judicial review proceedings, an Award of the Industrial Court can be quashed (ie: set aside) through certiorari, if for example:
- the facts do not support the conclusion arrived at by the Industrial Court;
- the finding of the Industrial Court had been arrived at by taking into consideration irrelevant matters;
- the Industrial Court failed to consider fundamental relevant matters;
- the Industrial Court asked itself the wrong legal question or applied the wrong legal test/principles;
- the Industrial Court misapplied the law or statute;
- the Industrial Court acted outside of its jurisdiction or powers; or
- the Industrial Court has come to a decision which is so unreasonable that no other Court faced with the same circumstances could arrive at the same conclusion
The concept of judicial review is therefore fundamentally and legally distinctive from an “appeal” as the Court is not so much concerned with the merits of the decision, or whether it is the “right” decision, but rather whether the Industrial Court had adopted the correct decision-making process.
How does the judicial review process work?
The procedure for judicial review is set out in Order 53 of the Rules of Court 2012.
An application for judicial review must be filed within 3 months from the date the Award was first communicated to the applicant. It is a two stage process – the applicant must first obtain “leave” (ie permission) from the Court before the applicant can proceed to the judicial review hearing proper.
In some situations, if leave is granted, the High Court may also grant a “stay” of the Award pending disposal of the judicial review proceedings. A “stay” order is where parties do not need to comply with the Award. For example, if the Award was in favour of the employee but a stay of the Award is granted, the employer does not have to pay the compensation awarded to the employee under the Award until the judicial review is determined. A stay is granted only if there are special circumstances to warrant it.
Once leave is granted, parties will be directed to file their affidavits to set out their respective positions.
Witnesses are not required to testify in judicial review proceedings, except in very rare circumstances where the Court orders for cross-examination of a deponent of an affidavit.
After affidavits are completed, the judicial review application will be heard before a High Court judge who will thereafter deliver his/her decision.
Some examples of judicial review
The application of judicial review upon Industrial Court Awards can be seen in numerous case laws.
In General Electric International Inc v Mohanjit Lubana & Anor [2018] MLJU 749, the Industrial Court found in favour of an employee who was retrenched. Upon a judicial review application filed by the company, the High Court quashed the decision of the Industrial Court on the basis that it had failed to consider that the global reformation of the Company’s structure had led to the employee’s duties and responsibilities being made redundant in Malaysia.
In Ambank (M) Berhad v Zaini Ibrahim & Anor [2016] 6 MLRH 91, the High Court upheld the decision of the Industrial Court which found that a Claimant terminated for alleged misconduct was unfairly dismissed. However, the High Court varied the remedy awarded by reducing the back wages awarded by 20%, as the Industrial Court failed to take into account the Claimant’s contributory conduct which warranted a reduction.
An alternative to “appeal” against an Industrial Court Award
Another method of “appealing” against an Award is made available under Section 33A of the IRA, whereby a party can apply to refer a question of law arising out of an Award, to the High Court. This application must be made to the Industrial Court within 30 days from the date the Award is made. If the Industrial Court decides to refer questions of law to the High Court, compliance with the Award will be stayed pending disposal of the reference, and the reference will take the form as if it were an appeal against the Award.
However, this method is not as common as the judicial review process, since the threshold to justify a reference is higher. An applicant must demonstrate to the Industrial Court that the question of law sought to be referred arose in the course of proceedings, has affected the Award, and is of sufficient importance to merit such a reference. The procedure for referring a question of law is also more cumbersome, since the party must first get the Industrial Court to agree that a question of law needs to be referred. The reference is then made by the Industrial Court (and not the applicant directly), which means the timeline is out of control of the applicant.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
