Court Of Appeal Upheld High Court's Decision To Quash Industrial Court Award Of RM905,511.32 To A Resident Consultant Anaesthetist

• Published date: 29 September 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Unfair/ Wrongful Dismissal, Trials & Appeals & Compensation
• Law Firm: SKRINE
• Author: Mr Leong Wai Hong and Quek Jian Long

"...where the facts do not support the conclusion arrived at by the Industrial Court or the findings of the Industrial Court are arrived at by taking into consideration irrelevant matters, such findings are always amenable to judicial review."

Per Hashim Hamzah J

Quek Jian Long provides a commentary on a recent decision by the Court of Appeal on 15 July 2021 in Thomas Jothinayagam Harris v The Perak Chinese Maternity Association & Anor. Leong Wai Hong, Witter Yee, Quek Jian Long and Tommy Lim Ka Hui successfully represented The Perak Chinese Maternity Association.

The Industrial Court had held that the anaesthetist was a workman/ employee. This award was quashed by the Ipoh High Court ([2021] 7 MLJ 726) on the ground that he was not a workman/ employee. The appeal by the anaesthetist was dismissed by the Court of Appeal.

Key points

1. Hashim Hamzah J applied the Federal Court's decision in Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1: -
   "...Historically, judicial review was only concerned with the decision-making process where the impugned decision is flawed on the ground of procedural impropriety. However, over the years our courts have made inroad into this field of administrative law Rama Chandran is the mother of all those cases. The Federal Court in a landmark decision has held that the decision of inferior tribunal may be reviewed on the grounds of 'illegality' 'irrationality' and possibly 'proportionality' which permits the courts to scrutinise the decision not only for process but also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds."
2. A representation on dismissal under s. 20 of the Industrial Relations Act 1967 ("the Act") is only applicable to a workman and not an independent contractor.

Brief Facts

Thomas Jothinayagam was engaged as a resident consultant anaesthetist by The Perak Chinese Maternity Association ("PCMA") at the Perak Chinese Maternity Hospital ("Hospital").

PCMA and Thomas Jothinayagam had entered into an engagement agreement. Upon expiration of the term of employment, PCMA did not renew the engagement. Thomas Jothinayagam applied made a representation under s.20 of the Act for unfair dismissal which was referred to the Industrial Court.

At the Industrial Court

The Industrial Court found that Thomas Jothinayagam was a workman and awarded him a sum of RM905,511.32 for unfair dismissal.

At the High Court

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