Industrial Court has jurisdiction even if employee no longer wants reinstatement
Published on: Thursday, March 21, 2024
By:
FMT, V Anbalagan
The Court of Appeal has upheld an award of RM47,000 given by the Industrial Court to Ong Hong Yeok for wrongful dismissal by his employer, Melipoly Enterprise Sdn Bhd, in 2021.
Kuala Lumpur: The Court of Appeal has ruled that the Industrial Court has jurisdiction to hear an unfair dismissal claim even if an employee subsequently refuses the prospect of reinstatement to employment and only asks for compensation.
Justice See Mee Chun said the Industrial Court is seized with jurisdiction once the human resources minister refers representations to it under Section 20(3) of the Industrial Relations Act 1967.
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“Although the first respondent (dismissed employee Ong Hong Yeok) stated that he did not wish to be ‘put back into employment’, the Industrial Court nevertheless continued to have jurisdiction,” she said when dismissing an appeal by employer Melipoly Enterprise Sdn Bhd.
Also on the panel that heard the appeal were Justice Hanipah Farikullah, recently elevated to the Federal Court, and Justice Che Ruzima Ghazali.
In a 24-page written judgment posted on the judiciary’s website, See noted that the thrust of Melipoly’s submissions was that the Industrial Court had no jurisdiction to inquire into the reference after Ong testified that he did not wish to be reinstated.
At trial, Ong had said that although he had wanted to be reinstated at the time the dispute was being mediated by the industrial relations department, he no longer wished to be employed by the company.
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However, See said the Industrial Court became seized with jurisdiction once the minister had made a reference under Section 20(3) of the Industrial Relations Act 1967. The judge said the court acquired its jurisdiction because of the ministerial reference.
See also distinguished the case from the Federal Court’s decision in Unilever (M) Holdings Sdn Bhd v So Lai @ Soo Boon Lai & Anor (2015). In that case, the apex court held that the Industrial Court cannot award compensation if reinstatement cannot be ordered.
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“The facts in Unilever are such that by the time the award was made, the workman (employee) had reached his retirement age where reinstatement was not possible.
“In this appeal, we had earlier found that the function and scope of the marketing manager (position) was reduced but the post was never eliminated.
“Under the circumstances, it cannot be said that the legal basis for such performance, namely (for Ong) to be reinstated, does not exist,” said See.
“Further, the first respondent (Ong) had withdrawn from Bee & Joy on July 24, 2019.”
It was in evidence that Bee & Joy Enterprise was set up by Ong on May 14, 2019, shortly after he was given his termination letter.
The Court of Appeal also held that the Industrial Court was right not to inquire into reasons not set out by Melipoly in the termination letter issued to Ong but subsequently raised in court pleadings to justify the termination.
Melipoly had sought to justify the termination by also alleging unsatisfactory performance, conflict of interest and sexual harassment.
“It is trite that the appellant (company) can only rely on the reasons as stated in the letter of termination and no other,” See said, adding that the company had failed to prove redundancy.
Ong, 53, joined Melipoly, a seller and distributor of honey products, as marketing manager in February 2016.
He was paid a monthly salary of RM5,000 and received a RM1,000 increment in 2018.
However, due to Melipoly’s financial situation, his salary was subsequently reduced by RM1,000 until the company’s financial situation improved.
On May 6, 2019, the company issued Ong a termination letter citing the prevailing economic recession and a prolonged period of poor sales revenue.
In June 2020, the Industrial Court found Ong’s dismissal to be without just cause or excuse. Court chairman D Paramalingam awarded him RM47,000 in back wages and compensation in lieu of reinstatement.
In November 2021, the Industrial Court’s decision was upheld by Justice Ahmad Kamal Shahid in the High Court.
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