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Shearn Delamore & Co.

Sivabalah Nadarajah

Sivabalah Nadarajah

Partner

Expertise

  • Employment & Administrative Law

WSG Practice Industries

Activity

Profile
Sivabalah has rich experience with trade disputes, collective bargaining, contracts of service, employment issues, industrial actions, judicial reviews, law on dismissals, mergers and acquisitions, minimum wage, occupational health and safety, reorganisations and retrenchment, statutory benefits, and union recognition. He has appeared extensively in the High Court, Court of Appeal, Federal Court and the then Supreme Court, principally for judicial review applications and appeals.

The Employment Law Alliance (ELA), the world's largest network of labour, employment and immigration attorneys, honoured Sivabalah as its "Sheldon N. Sandler Award" recipient in 2020.

Bar Admissions

► Malaysia (1984)

Education

► LL.B (Hons), University of Malaya
► Advocate & Solicitor, High Court of Malaya

Areas of Practice

Employment & Administrative Law

Professional Career

Significant Accomplishments

► Asialaw Leading Lawyers (2014 - 2016) - "Leading Lawyer" in Labour and Employment
► Asialaw Leading Lawyers (2017 - 2019) - "Market Leading Lawyer" in Labour and Employment
► Asialaw Leading Lawyers (2020 and 2021) - "Elite Practitioner" in Labour and Employment
► Benchmark Litigation Asia-Pacific (2019 and 2020) - "Litigation Star" in Commercial and Transactions, Dispute Resolution and Labor and Employment
► Chambers Asia-Pacific (2010 - 2021) - "Band 1" in Employment and Industrial Relations
► The Legal 500 Asia-Pacific (2019 and 2020) - "Leading Individual " in Labour and Employment
► The Legal 500 Asia-Pacific (2016 - 2018) - "Recommended Lawyer" in Labour and Employment
► Expert Guides (2018 and 2019) - "Leading Practitioner" in Labour and Employment
► Who's Who Legal (2015 - 2018) - "Expert" in Labour, Employment & Benefits
► Who's Who Legal (2019 and 2020) - "Global Leader" in Labour, Employment & Benefits

Professional Associations

► Member, Malaysian Bar
► Member, International Bar Association (IBA)
► Firm Representative, Employment Law Alliance (ELA)
► Former Board Member and Former Chairman of the ELA's APAC Regional Committee


Professional Activities and Experience

N. Sivabalah represented employers in many landmark decisions in the fields of Employment, Administrative & Constitutional Law. The following are a few of these decisions: -

► PP v. Syarikat Tekala Sdn Bhd [2007] 6 CLJ 43

● This was a prosecution by the Employees' Provident Fund (EPF) under Section 68 of the Act. It was successfully argued before the Court of Appeal that the EPF had no jurisdiction to commence and conduct criminal proceedings without the sanction of the Public Prosecutor. The Court of Appeal also ruled that Section 68 of the Act was ultra vires the Federal Constitution.

► Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & another [1995] 2 MLJ 753

● Appeared for the Company. The Federal Court ruled that notwithstanding an express provision in the employee's contract to hold a domestic inquiry, the failure to hold a domestic inquiry did not render a dismissal automatically unfair.

► Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan & Anor [1996] 1 MLJ 481

● This is a landmark decision in the field of administrative law and judicial review where the Court of Appeal broadened the scope of challenge of an exercise of discretion by the Minister under the Industrial Relations Act. Sivabalah appeared for the Company.

► Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629

● He successfully defended the setting aside of an Industrial Court's decision in the Federal Court. The Federal Court ruled that the parties were bound by their pleadings in the Industrial Court and this extended to not only setting out facts but also arguments.

► Kathiravelu Ganesan & Anor v. Kojasa Holdings Berhad [1997] 2 MLJ 685

● Appeared for the Company before the Federal Court which upheld the overturning of the long-standing practice of the Industrial Court to award full back wages, without taking into account the subsequent gainful employment of the dismissed employee. The Industrial Relations Act was amended to give effect to this ruling.

► JT International Tobacco Sdn Bhd v. Lau Thow Sin [2006] 4 MLJ 251

● Appeared for the Company. The High Court ruled that although the Industrial Court had the power to award full back wages until the last day of hearing, it should not depart from the practice of limiting back wages to a maximum of 24 months unless there was sound reason for doing so. The Act was amended to limit the award of back wages to 24 months.

► British American Tobacco (M) Bhd Employees Union v. Director General of Trade Unions, Malaysia & others [2011] 7 CLJ 478

● Successfully argued for the Company that In-house unions could only act for employees in one company and not all the companies in a group.

► Sarawak Shell Berhad v. Ismail Sahat & Ors [2002] 2 ILR 371

● The Company departed from the established retrenchment principle of Last In First Out and used its own selection criteria in retrenching employees. The Industrial Court upheld the Company's use of its own selection criteria. Sivabalah appeared for the Company.

► Supermix Concrete (M) Sdn Bhd v. Teoh Boon Beng [1987] 1 ILR 274

● Section 20 of the Industrial Relations Act, 1967 previously provided that an employee, claiming that his dismissal was without just cause and excuse had to lodge his representations within one month of the dismissal. The employee was given notice of termination and had lodged his representations before the notice had expired. Successfully argued that the representation was premature and the Industrial Court had no jurisdiction to hear the matter. The Supreme Court upheld this decision and this led to the amendment of Section 20 of the Act to allow representations during the notice-period.

► Beatrice Fernandez v Sistem Penerbangan Malaysia & Anor [2004] 4 CLJ 403

● Represented Malaysian Airlines System where the Court of Appeal ruled that the dismissal of a stewardess on the grounds of her pregnancy was not unconstitutional.
Articles

Shearn Delamore & Co. Newsletter December 2021
Shearn Delamore & Co., January 2022

Employment Law An examination of the case ofTelekom Research andDevelopment Sdn Bhd v Ahmad Farid Bin Abdul Rahman by the Court of Appeal Introduction The Industrial Court had ruled that the company, Telekom Research and Development Sdn Bhd (“Telekom”), had proven the misconduct against a former employee, the claimant Ahmad Farid Bin Abdul Rahman (“Ahmad”), and that the dismissal was justified...

Shearn Delamore & Co. Newsletter September 2021
Shearn Delamore & Co., October 2021

Dear valued clients, colleagues and friends, We are pleased to bring you the September 2021 issue of our quarterly Newsletter, we hope that you will continue to find its contents of value to you. In this issue’s Front Page Focus, Caitlin Tan Hui Yi, associate from our Dispute Resolution Practice Group, discusses the disqualification of solicitors in the Court of Appeal case of Dato’ Azizan bin Abdul Rahman v Pinerains Sdn Bhd...

Shearn Delamore & Co. Legal Updates October 2021 (1)
Shearn Delamore & Co., October 2021

Dear valued clients, colleagues and friends,We are pleased to bring you the latest legal updates for October 2021.Employment & Administrative LawDeed of Settlement, Termination and Release Upheld as Cessation of Employment by Mutual AgreementIn the recent case of Christopher Dass a/l Muniandy @ Mathew v Clasquin (Malaysia) Sdn Bhd dated 3 August 2021 (Award No...

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