Court of Appeal Reinstates Industrial Court Awards for Unlawful Dismissal
Preliminary Objection Leads to Reversal of High Court Decision
PETALING JAYA: The Court of Appeal has unanimously restored separate Industrial Court awards given in favour of two former lorry drivers for unlawful dismissal, after allowing a preliminary objection raised on their behalf.
Error in Filing Appeal
Justice Ahmad Fairuz Zainol Abidin said the employer, SG Concrete Products Sdn Bhd, had erroneously filed an appeal with the High Court instead of pursuing a judicial review in both cases. He also said the High Court judge had erred in allowing the appeals and setting aside the Industrial Court’s awards.
Reversal of High Court Decision
"On this basis alone, we find that the appeals ought to be allowed and the decision of the High Court is set aside. The award of the Industrial Court is reinstated," Ahmad Fairuz said in the 14-page judgment. As a result, the judge said the bench — which included Justices Supang Lian and Lim Chong Fong — saw it unnecessary to consider the merits of the appeal.
Background of the Case
Appellants Rosli Saad and Rohlizan Rahaman had, through their lawyer, Ravi Nekoo, raised a preliminary objection as to the mode by which the matter was brought before the High Court. On November 14, 2022, the Industrial Court awarded Rosli RM56,400 and Rohlizan RM38,400 in compensation in lieu of reinstatement. The two men were terminated for being absent from work for four consecutive days without reasonable excuse, breaching Section 15(2) of the Employment Act 1955.
Introduction of the Appeal Process
The appeal process was introduced by way of the Industrial Relations (Amendment) Act 2020 which took effect on January 1, 2021. The human resources minister referred the duo’s representations to the Industrial Court for adjudication on April 24, 2021.
Section 35 of the Act
"This is where the drafters of the Act have in their wisdom introduced Section 35 in the Act to cater for the current conundrum," he said. The section provides that where any representation for reinstatement is made before the amended Act comes into force, it shall proceed under the law in force prior to the amendment.
Conclusion
In conclusion, the Court of Appeal has reinstated the Industrial Court awards for Rosli Saad and Rohlizan Rahaman, after allowing a preliminary objection raised on their behalf. The employer, SG Concrete Products Sdn Bhd, had filed an appeal with the High Court instead of pursuing a judicial review, which was deemed an error.
Frequently Asked Questions
Q: What was the preliminary objection raised by the appellants?
A: The preliminary objection was raised as to the mode by which the matter was brought before the High Court.
Q: What was the outcome of the Industrial Court awards?
A: The Industrial Court awarded Rosli RM56,400 and Rohlizan RM38,400 in compensation in lieu of reinstatement.
Q: What was the error committed by the employer?
A: The employer filed an appeal with the High Court instead of pursuing a judicial review, which was deemed an error.