[EMPLOYMENT] Special Alert: Seeking Reinstatement To Employment Through Judicial Review

Published date18 March 2024
Subject MatterEmployment and HR, Unfair/ Wrongful Dismissal, Employee Rights/ Labour Relations
Law FirmLee Hishammuddin Allen & Gledhill
AuthorAshreyna Kaur Bhatia and Amardeep Singh Toor

Noor Mohamad Bin Nordin v Petroliam Nasional Berhad [Judicial Review Application No.: KA-25-18-07/2023]

Introduction

The former employee ('former employee') filed an application for leave to apply for judicial review against his former employer, Petroliam Nasional Berhad ('Petronas'). This followed Petronas' decision to dismiss him from his employment on the ground of misconduct.

Judicial review is the means through which the decision-making process of public authorities or bodies performing a public function is scrutinised by the courts. The law requires that the 'decision, action, or omission' of the body sought to be reviewed must be in the exercise of a public function.1 To qualify, there must be sufficient public law elements.

The former employee argued that (i) Petronas is a company incorporated by the government, (ii) is under the control and full surveillance of the Ministry of Finance, and (iii) is therefore carrying out a public function. He relied on a Court of Appeal case in which the Court recognised the existence of hybrid companies/private entities incorporated under the Companies Act 2016, which perform both public and private functions.2

Petronas argued that judicial review applies only to a public authority. Petronas, however, is a private entity incorporated under the Companies Act 2016. Further, notwithstanding that Petronas is under the control and full surveillance of the Ministry of Finance and may therefore carry out public functions from time to time, there are no such public functions that come into play in relation to the private employment relationship between the former employee and Petronas. It is merely a contractual relationship between two parties.

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