The Mode To Challenge An Industrial Court Award: Appeal Or Judicial Review

• Law Firm: Zul Rafique & Partners
• Subject Matter: Employment and HR, Contract of Employment, Unfair/ Wrongful Dismissal, Employee Benefits & Compensation, Employee Rights/ Labour Relations
• Author: Wong Keat Ching
• Published date: 01 March 2023

INTRODUCTION

Recently, the High Court of Penang has resolved the confusion on the correct mode to challenge an Industrial Court Award in the High Court by interpreting Sections 33C and 20(3) of the Industrial Relations Act 1967. This decision by Justice Anand Ponnudurai in Aneka Retail (M) Sdn Bhd v Industrial Court Malaysia & Ors explained the correct mode to challenge an Industrial Court Award in the High Court.

BACKGROUND FACTS

The two Respondents were former employees of the Applicant company. In April and May 2020, they did not receive their salaries at all and accordingly, they contended that they have been constructively dismissed from 8.6.2020. The Respondents made their representations pursuant to Section 20 of the Industrial Relations Act 1967 ("the IR Act"). The dispute was then referred to the Industrial Court by the Minister of Human Resources ("the HR Minister") by a letter dated 6.1.2021 pursuant to Section 20(3) of the 1967 Act. The Industrial Court held the Respondents were constructively dismissed due to fundamental breaches of their employment contract and awarded back wages and compensation. The Applicant filed an application pursuant to Order 53 of the Rules of Court ("the ROC") 2012 for leave to apply for an order of certiorari to quash the Industrial Court Award Nos. 1630 of 2022 and 1631 of 2022, both dated 25.7.2022. The application for leave was met with objection by the Attorney General's Chambers ("the AGC") on the grounds that the Applicant should instead file an appeal under Section 33C of the 1967 Act.

ISSUES

Whether the Applicant had correctly utilised judicial review proceedings or ought to have filed an appeal under Section 33C of the IR Act as amended.

Essentially, the Industrial Relations (Amendment) Act 2020 ("the 2020 Amendment Act") introduced several amendments to the principal IR Act which took effect on 1.1.2021. The amendments are, amongst others, as follows:

1. The amendment of Section 20(3) of the IR Act removed the HR Minister's discretion to refer any representation for unfair dismissal of a workman to the Industrial Court. Instead, the Director General of Industrial Relations ("the DG") shall refer the representations to the Industrial Court for an award where he is satisfied that there is no likelihood of the representations being settled; and

2. The insertion of Section 33C of the IR Act which allows the party dissatisfied with the Industrial Court Award to appeal to the High Court.

Section 33C of the IR...