Case Update: Industrial Court Cannot Toss Aside Workman's Claim Without Hearing Solely Because Absence Of Reinstatement Remedy

• Published date: 19 June 2023
• Subject Matter: Employment and HR, Employment Litigation/ Tribunals, Employee Rights/ Labour Relations
• Law Firm: Zul Rafique & Partners
• Author: Zul Rafique & Partners

EMPLOYMENT LAW

Independent Agent – Statement of Case – Abandonment of Reinstatement Remedy – Industrial Court – Jurisdiction

Ace Holdings Bhd v Norahayu Bt. Rahmad & Anor

Civil Appeal No. W-01(A)-83-02/2022|Court of Appeal

- see the grounds of judgment here

Facts Norahayu Bt. Rahmad (the '1^st Respondent') claimed that she had been appointed in 2018 by Ace Holdings Bhd. (the 'Appellant') to be the Appellant's Vice President. The Appellant however claimed that the 1^st Respondent was not its employee but was instead an 'independent agent' who had agreed to refer 'high net worth' individuals to invest in its products and services in return for commission. In 2019, the Appellant terminated the 1^st Respondent's appointment. Subsequently, the 1^st Respondent filed a civil suit at the Kuala Lumpur High Court claiming for 'renewal commission fees'. The 1^st Respondent then made a written representation to the Director General for Industrial Relations ('DG') pursuant to the Industrial Relations Act 1967 ('IRA1967') to be reinstated in her former employment. The DG then informed the President of the Industrial Court ('IC') that the Minister of Human Resources had decided to refer the 1^st Respondent's Representation to the IC for an award. At the IC, the 1^st Respondent's statement of claim ('SOC') only applied for, amongst others, 'full wages and benefits' from the date of her dismissal. The SOC did not pray for a reinstatement to her former employment with the Appellant. Subsequently, the Civil Suit was struck out by the High Court and the 1^st Respondent did not appeal the matter further. In the proceedings at the IC, the Appellant raised two preliminary objections, one of them being that the IC had no jurisdiction to hear the 1^st Respondent's claim as the SOC filed only prayed for monetary relief and not Reinstatement Remedy. The IC accepted this preliminary objection and the 1^st Respondent's claim was dismissed for want of jurisdiction. A judicial review was then applied by the 1^st Respondent and the High Court allowed the application, therefore ordering a certiorari to quash the IC's Award and a mandamus order to direct another learned Chairperson of the IC to hear the 1^st Respondent's claim on the merits. Hence this appeal to the Court of Appeal by the Appellant.

Issue If the Minister has referred a representation of a 'workman' to the IC, can the IC dismiss the...