(R. Jayabalan)
A key question when drafting a claimant’s statement of case before the Industrial Court is on the relief to be sought. Very often, by the time the claimant’s representation for unfair dismissal was referred by the minister to the Industrial Court, the claimant would have gained new employment elsewhere and going back was no longer an attractive option. Question then arises as to whether he should still ask for reinstatement or to seek compensation.
Often lawyers have to advise the claimants to ask for reinstatement in the hope that the Court would hold that there was no longer industrial harmony between the claimant and the ex-employer and compensation would be appropriate in lieu of reinstatement.
This conundrum came about due to the diverging views on the implication to the claim if the claimant no longer wishes to go back.
Sec. 20(1) of the Industrial Relations Act 1967 states that a workman when lodging representation may make representations “to be reinstated”. Sec. 30 gave jurisdiction to the Court to order “reinstatement”. Following these express provisions for reinstatement as the remedy, conflicting views have developed.
On one side, cases have held that if the claimant failed to plead reinstatement or if in the course of the trial changes his mind about going back and prefers compensation, the Court ceases to have jurisdiction and the claim cannot be heard anymore. This view was led by the High Court decision in Holiday Inn, Kuching v Elizabeth Lee Chai Sok [1992] 2 CLJ (Rep) 521.
On the other side is the view that the claimant’s desire on reinstatement does not affect the Court’s jurisdiction. This because the Court derives its jurisdiction from the reference made by the minister under sec 20(3) of the Act and does not hinge on the claimant’s desire for reinstatement. Once the minister’s reference was made, the Court gains jurisdiction and must decide on the claim. The claim cannot be abandoned. This view was led by the High Court decision in The Borneo Post Sdn Bhd v Margaret Wong [2001] 8 CLJ 758.
The conflicting views and the resulting state of uncertainty have caused claimants to be prudent by asking for reinstatement and maintaining this desire at the trial, especially in cross-examination – even when in truth, the claimants do not desire to go back. A facile plea was unfortunately (and regrettably) made necessary in order to preserve the claim.
This conundrum is now resolved. The Court of Appeal recently in Sanbos (M) Sdn Bhd v Gan Soon Huat [2021] 3 AMR 833 clarified the issue and upheld the second view as the correct position. It was held that the Industrial Court was seized with the jurisdiction to hear the dispute once the minister made the reference under sec. 20(3). It is the minister’s reference that invested the Court with the jurisdiction and not the claimant’s desire for reinstatement. The Court does not cease jurisdiction merely because reinstatement was not pleaded or no longer desired. However, when making the initial representation to the Director General under sec. 20(1) the claimant must still ask to be reinstated as that is a specific requirement under the Act. Once the dispute is referred to the Court by the minister there is no longer specific requirement in the Act for the claimant to plead reinstatement. The Industrial Court Rules 1967 too did not impose an obligation to plead reinstatement. Hence, even if the claimant changes his mind and no longer desires reinstatement at the hearing, the Court still has the jurisdiction to proceed with the hearing as under sec. 30(6) the Court has very wide discretion in awarding reliefs and is not restricted to the specific relief claimed by the claimant. With this wide discretion, the Court may still award monetary relief even if reinstatement was not asked for. The Court cannot question its own jurisdiction simply because the relief of reinstatement was not asked for. The Borneo Post Sdn Bhd v Margaret Wong was held as representing the correct view.
This is indeed a welcome decision from the Court of Appeal and one that has been waited for long by Industrial Court practitioners. The decision is consistent with the objective of the Industrial Relations Act 1967 as a social legislation whose paramount objective is to protect the interest of the employees and also in line with the mandate given to the Industrial Court in sec. 30(5) to act in accordance with equity, good conscience and substantial merit of the case without regard to technicalities and legal form.
Following this decision, the path is now clear for claimants and a facile plea for reinstatement is no longer necessitated.
Messrs R. Jayabalan
