Member Article

The Industrial Court is a creature of statute. In determining a particular dispute, the Industrial Court must act in accordance with the purposes and express provisions of the Industrial Relations Act 1967 (“Act”). The Court must also act according to “equity, good conscience and the substantial merits of the case without regard to technicalities and legal form” [1].

Section 30(1) of the Act enables the Industrial Court to hand down an award relating to all or any of the issues raised in a trade dispute referred to it or a reference to it by a Minister for an award. The Industrial Court’s award determines the rights of the parties and is accordingly binding on them. The Industrial Court has a wide discretion on the relief that it may grant to the successful party. The main relief is monetary compensation for loss of employment. The Industrial Court’s award includes 24 months of back wages and one month’s salary for every year of service. Alternatively, in proper cases, the Industrial Court may order rein-statement.

It is pertinent to note that the Act does not enshrine provisions for a direct challenge against an award of the Industrial Court. The only direct method of challenge is by invoking section 33A of the Act. The Industrial Court has the discretion whether to allow the application under section 33A to refer to the High Court a question relevant to its own award and it may only do so where all the conditions in the provision are fulfilled.

Section 33B of the Act expressly states that, subject to section 33A of the Act, an award, decision or order of the Industrial Court is final and conclusive and shall not be challenged, appealed against, reviewed, quashed or called in question in any court. By virtue of this provision, the award of the Industrial Court is, generally, insulated from challenge in any court.

Notwithstanding the above, the Federal Court has expressly ruled that, while the Act may prohibit appeals to the High Court, a decision of an Industrial Court may be challenged or reviewed by way of judicial review under order 53 of the Rules of Court 2012. This is done by applying for an order of certiorari to quash a decision of the Industrial Court.

It is trite that judicial review is not an appeal process. The High Court effectively exercises its supervisory jurisdiction over the Industrial Court. The process entails the High Court examining the decision-making process of the Industrial Court. Notwithstanding Section 33B of the Act, the decision or award of the Indus-trial Court may be liable to be quashed if the Industrial Court has committed an error of law in the course of handing down its award. In Syarikat Kenderaan Melayu Sdn Bhd v Transport Workers Union [2], the Court of Appeal held:

“It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law for the categories of such an error are not closed. But it may be safely said that an error of law would be disclosed if the decision maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.”

Previously, in judicial review proceedings, the High Court cannot disturb the findings of fact made by the Industrial Court which is based on the credibility of witnesses [3].

However, the scope of judicial review has been expanded to cases where the Industrial Court reached a decision that is completely devoid of any plausible justification. The reviewing courts may also interfere with the findings of the Industrial Court where it relates to an error of fact in the following situations:

(a) reliance upon an erroneous factual conclusion may itself offend against the principle of legality and rationality; or

(b) there is no evidence to support the conclusion reached.”[4]

If a party succeeds in its application for an order of certiorari, the High Court will generally quash the award or decision of the Industrial Court and order the Industrial Court to rehear the matter on its merits. The High Court may, in exceptional circumstances, substitute its own decision instead of remitting the matter back to the Industrial Court for re-adjudication. Further, a decision of a public decision-maker is susceptible to challenge. In Ranjit Kaur S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [5], the Federal Court held:

“Historically, judicial review was only concerned with the decision making process where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroad into this field of administrative law. Rama Chandran[6] is the mother of all those cases. The Federal Court in a landmark decision has held that the decision of inferior tribunal may be reviewed on the grounds of ‘illegality’, ‘irrationality’ and possibly ‘proportionality’ which permits the courts to scrutinise the decision not only for process but also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds.”

However, there must be parameters as to the extent a reviewing court may go in examining a decision of the Industrial Court. In Petroleum Nasional Bhd v Nik Ramli Nik Hashim[7], the Federal Court stated:

“Not every case was amenable to the Rama Chandran approach. It depended on the factual matrix and/or the legal modalities of the case. This was a matter of judicial discretion on the part of the re-viewing judge.”