2 January, 2020
A case note by Wong Kian Jun.
Brief background
Suberan was to oversee the implementation of the Touch N Go Project for Xerox Business Services Malaysia Sdn Bhd (“Company”) as the Project Director. Suberan’s role as Project Director had ceased to exist on his last day of employment with the Company and the Company never recruited another Project Director upon Suberan’s release.
At the time of retrenchment, Suberan’s position ceased to exist because the implementation of the Touch N Go Project had been completed and the Company was about to commence maintenance and warranty work for the coming years which was undertaken entirely by the team in India. At the material time, Suberan was not the only one affected as the Key Accounts Manager for Touch N Go was also released.
Grounds of Appeal
The main grounds relied upon by Suberan in challenging the Industrial Court Award both at the High Court and Court of Appeal were as follows:
- The Industrial Court had wrongly excluded amendment agreements (“the said documents”) tendered and relied upon by Suberan. Suberan alleged that these documents showed that the Touch N Go Project continued to exist and was carried out by another person.
- Suberan alleged that as the Touch N Go Project continued to exist and was carried out by the Company, his position as the Project Director was still required and therefore he was not redundant.
Application of section 167 of the Evidence Act 1950
The High Court ruled that the Industrial Court had wrongly excluded the said documents which were tendered by Suberan. The High Court was of the view the said documents were relevant to the case and cannot be ignored by the Industrial Court.
Despite this, the High Court was of the view that the said documents do not support Suberan’s allegation that another employee continued to carry out Suberan’s role as the Project Director.
The High Court held that even though the Industrial Court wrongly excluded the said documents the decision was sound based on the available evidence before it and therefore the decision of the Industrial Court should not be disturbed.
The High Court in its decision applied section 167 of the Evidence Act 1950 which provides that improper admission or rejection of evidence cannot be a ground to reverse the decision of the Industrial Court if the evidence before it justified its decision. Section 167 provides as follows:
“167. No new trial for improper admission or rejection of evidence.
The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case if it appears to the court before which the objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if rejected evidence has been received, it ought not to have varied the decision.”
The Court of Appeal in its recent decision unanimously concurred with, and upheld, the decision of the High Court.
Conclusion
The decision above affirmed the position that although the tribunal had wrongly excluded certain evidence tendered by an appellant, this does not automatically warrant the decision of the tribunal being quashed if the ultimate decision was supported by sufficient evidence in accordance with section 167 of the Evidence Act 1950.
For further information, please contact:
Wong Kian Jun, Partner, Shearn Delamore & Co
wongkj@shearndelamore.com
