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High Court of Sabah and Sarawak |
] [Hide Context] MALAYSIA IN THE HIGH COURT OF SABAH AND SARAWAK AT KUCHING
SUIT NO. 22-56-2009-II
BETWEENNG SUAN CHIEK (WN.KP.581023-13-5257)
No.32 Taman Daya
Jalan Burung Durian, Stampin
AND
ASTRAZENECA SDN BHD
(Company No.69730-X)
17 Jalan Semantan 1
Damansara Heights, Kuala Lumpur … DEFENDANT
JUDGMENT
This is an application by the defendant to strike out the claim of the plaintiff.The brief facts pertaining to the application are largely undisputed. They are as follows.
The plaintiff was long time employee of the defendant. He worked for about 28 years for the defendant. His last post before the
alleged mutual termination was
Grounds of Striking out
The instant Suit was filed on 1st April 2009. The plaintiff also filed a representation under section 20 of Industrial Relations Act 1967. On 29th March
, the Minister informed the plaintiff of his decision not to refer the representation to the Industrial Court. The argument of the defendant is that the plaintiff has abused the process of the court for the following reasons. Since the plaintiff chose to refer his representations to the Minister, he is bound to accept the decision of the Minister. If plaintiff is not satisfied, he should take out judicial review proceedings. Counsel for defendant also submitted that as the Minister has declined to refer the case to the Industrial Court, the matter is res judicata.Issues
To my mind the main issue is whether it is an abuse of the process of the Court for the plaintiff to proceed with the instant Suit after the Minister had refused to refer his representation to the Industrial Court for an award. In my opinion, the
law on this issue is well settled beyond argument. My reasons are as follows.Firstly, the Industrial Relations Act 1967 does not prohibit the filing of civil suit to seek remedy for dismissal without just cause or excuse. The right to seek remedy by regular civil action for dismissal had existed in common law from time immemorial. However, insufficient protection and remedies are afforded
at common law. For example, an employee has no right to seek reinstatement.He could only seek damages. The remedy of reinstatement under the Industrial Relations Act 1967 is an attempt by Parliament to provide a more equitable remedy. Nevertheless, the Industrial Relations Act 1967 did not extinguish the right of an employee to seek the remedy of damages at common law. This is
apparent in Section 20(4) which provides as follows:(4) Where an award has been made under subsection (3), the award shall operate as a bar to any action for damages by the workman in any court in respect of wrongful dismissal.
(emphasis supplied)
This provision, in crystal clear terms, bars an action only if the Industrial Court has
made an award. Conversely, this means that if an employee is not proceeding with the reference to the Industrial Court, he is at liberty to proceed with civil action. As decided in several cases, the two actions, i.e. reference to Industrial Court and regular civil action, are not mutually exclusive. The only prohibition is that if the Industrial Court has made a decision which is otherwise known as an award, the employee cannot avail himself of a second bite at the cherry through a civil action.The following cases support this proposition. In Haji Ali Haji Othman v. Telekom Malaysia Berhad [1997] 2 CLJ 710, the question that arose for determination was whether an employee could take out a writ action after his attempt to refer his representation to the Industrial Court failed. Haider J cited an earlier
Supreme Court decision (Minister Of Labour, Malaysia v. Chan Meng Yuen ([1992] 1 CLJ 216 (Rep)) and held that he could do so as the remedies by way of civil action and reference to Industrial Court are not mutually exclusive:The issue here is whether having failed to file an action for certiorari and
mandamus in respect of the Minister's decision, is the Plaintiff barred from
filing this action seeking for declaratory orders. It has been said that the two remedies are not mutually exclusive (see Petaling Tin Bhd v. Lee Kian Chan [1994] 1 MLJ quoting with approval at p. 675, the obiter of Lord Goddard in Pyx Granite Co. v. Ministry of Housing and Local Government [1960] AC; [
1959] 3 All ER 1; [1959] 3 WCR 346). The short answer to Encik Sowaran Singh's preliminary objection can be found in Minister Of Labour, Malaysia v. Chan Meng Yuen & Anor Appeal [1992]
1 CLJ (Rep) 216 where at pp. 342/343 the Supreme Court in refusing to interfere with the Minister's refusal to refer the representation
made to the Industrial Court said:If the respondent is still aggrieved from the decision, it is open to him to file a suit in the Civil Court for damages for wrongful dismissal.
This is clearly contemplated by s. 20(4) of the Act. (emphasis added)
The present suit is, inter alia, for damages for wrongful dismissal. In the
circumstances, I overruled the preliminary objection of the Defendant.This passage was cited with approval and followed by Mohd Zawawi Salleh JC in the more recent decision of Shamsulbahri Shaffie v. Titan Petchem (M) Sdn Bhd [2010] 4 CLJ 242. Counsel for defendant cited the unreported case Johari Bin Ahmad v Lim Peng Siew [1998] MLJU 593 where the High Court struck out
the civil action of the employee. In that case, the employee had not waited for the outcome of his representation to the Minister. In fact, he did not tell the court whether the Minister had referred his representation to the Industrial Court. The court observed as follows:If, by reason of the Plaintiff not reporting the result of his representations
pursuant to the statutory scheme, the Court is to presume and conclude that the representations made by the Plaintiff is still pending decision of the Industrial Department, and that this case is therefore a collateral action launched by the Plaintiff in respect of the same retrenchment exercise, it is my finding that it is not open for the Plaintiff to do so. I am of view that the Plaintiff, having invoked the statutory scheme created by the legislature, should await its final outcome. Should he be not satisfied with the decision of the tribunal, he can and should then invoke the supervisory jurisdiction of the High Court by way of certiorari proceedings etc. In these situation I am of the view that this collateral action instituted by the Plaintiff is premature, misconceived, and the Defendant's application to strike out should, in this circumstance, be allowed and the Plaintiff's Writ and Statement of Claim be accordingly struck out with costs.The facts of the above case can be readily distinguished from the instant case.
Here, the Minister had informed the parties that he is not referring the representation of the plaintiff to the Industrial
Court. Counsel for plaintiff told the court that the plaintiff is not seeking to review his decision. The time period of 40 days
to seek leave to file a judicial review application has long expired at
The application to strike out the claim of the plaintiff is hereby dismissed with costs of RM2,000.
(RAVINTHRAN PARAMAGURU) Judicial Commissioner
Date of Delivery of Judgment: 27.6.2011Date of Hearing: 17.6.2011
For Plaintiff: Mr. Desmond Kho
Messrs Kho & Partners Advocates
Kuching
For Defendant: Mr. Robert Jawan Wellington Messrs Zaid Ibrahim Advocates Kuching
Notice: This copy of the Court's Reasons for Judgment is subject to editorial revision.
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