THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 132 ENGLISH

Robin Khoo Kah Chong v Logik Pengurusan Sdn Bhd
Suit Number: Civil Appeal No. P-02(A)-550-03/2017 

Employment & labour law – Dismissal – Alleged poor performance – Whether dismissal without just cause and excuse – Award of compensation for wrongful dismissal by the Industrial Court – Reversal of Award by the High Court – Appeal

Litigation & court procedure – Whether the Industrial Court adequately appreciated the facts and law – Whether there was any illegality in the findings of fact made by the Industrial Court – Whether the findings of the Industrial Court plainly irrational – Whether the High Court should have disturbed the award of the Industrial Court

JUDGMENT

[1] The dispute in this appeal was over the dismissal of the appellant by his employer, the respondent company (“the company”). The Industrial Court decided that the dismissal was without just cause and excuse, and awarded the appellant a sum of RM470,442.00 as compensation for wrongful dismissal and backwages.

[2] The High Court however decided otherwise, finding that the appellant’s dismissal was with just cause and excuse. The learned High Court Judge held that the Industrial Court committed serious errors of law and accordingly quashed the Industrial Court’s award. Hence the present appeal by the appellant.

[3] The facts are these. The respondent company is a logistics company with branches throughout the country. The appellant was the branch manager of the company’s Penang branch. His last drawn salary including allowances was RM23,402.00.

[4] The appellant’s duties and responsibilities included the development of airfreight and logistics related services, including sales with emphasis on global accounts and the carrying out of policies as set by the LEP Group in general. However, under the appellant’s management, the Penang Branch suffered continuous losses from 2006 until May 2009. At that time, around 2007 or 2008, the appellant was discussing plans for migration to New Zealand.

[5] At the end of 2008, there was a change in the company’s management. The new Managing Director (“MD”) reviewed the operations of all company branches in the country and requested all branch managers, including the appellant, to prepare a plan on how to increase and improve their respective businesses and profitability.

[6] However, the appellant only came up with the idea to either close the branch or reduce the number of staff in that branch. The appellant even obtained information from the Labour Department on ways to terminate employees.

[7] In early 2009, the MD sent the appellant an e-mail asking for suggestions on increasing the business of the branch but the appellant did not provide any idea or suggestion, other than to close or downsize the Penang Branch.

[8] The appellant was then on sick leave from 9 June 2009 until 23 October 2009. The respondent doubted whether he was genuinely sick as the medical certificates submitted by the appellant were issued well before the appellant began the relevant leave period. The respondent believed that the appellant was never ill and was probably using the time to prepare for his migration to New Zealand.

[9] Whilst the appellant was on leave, the MD took over the management of the Penang Branch and immediately turned it around, whereby the branch started to generate profits.

[10] When the appellant returned in October 2009 from his extended sick leave, there were discussions about ideas to restructure his branch and he was asked for his business plan. The management did not agree with his suggestion to close the Penang Branch because it had good potential. The company’s intention was to expand all branches to protect the company’s and its employees’ interests.

[11] The appellant was further given a draft Job Description and was requested to revert with a plan of action. However, the appellant failed to respond to the Job Description despite a lapse of over one month. Further, the appellant failed to provide a business plan since end of 2008 despite numerous requests to do so.

[12] Therefore, taking into account the Penang Branch’s continuous losses under the appellant’s management, his failure to respond on his draft Job Description and his failure to provide a business plan for the branch, the MD concluded that the appellant had failed as a branch manager due to his passive management approach. The company accordingly issued a letter of termination to the appellant on 2 December 2009 with an opportunity for the appellant to explain why he should not be terminated.

[13] We must say at the outset that we agree with the appellant that the case is one relating to findings of fact by the Industrial Court. It was for the Industrial Court to determine whether the appellant’s termination was with or without just cause. In Goon Kwee Phang v J & P Coats (M) Sdn Bhd [1981] 2 MLJ 129 the Federal Court held, inter alia, as follows:

“Where representations are made and are referred to the Industrial Court for inquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse.”

[14] Having gone through the record of appeal, it is clear to us that the Industrial Court had embarked on a detailed review of all the evidence, both oral and documentary, presented by the appellant and the respondent. The contrary finding of the High Court is consequently erroneous as the learned Chairman of the Industrial Court had correctly exercised her duty in enquiring into the propriety of the reason that was advanced by the respondent, i.e. ‘poor performance’ and decided that the company had failed to prove that reason, hence the award that the termination was without just cause or excuse. She preferred the evidence of the appellant and the learned High Court Judge had no cogent reason to disagree with her.

[15] The learned Industrial Court Chairman’s findings of fact that are relevant to the present appeal are as follows:

“(i) Walau bagaimanapun COW-1 bersetuju bahawa tidak terdapat sebarang surat yang memberi teguran kepada pihak menuntut di atas kegagalannya mematuhi arahan tersebut. Sekiranya dakwaan pihak responden adalah benar, maka sudah tentu akan terdapat surat-surat peringatan dan surat teguran dari pihak responden kepada pihak menuntut berkaitan dengan perkara ini. Ketiadaan surat-surat tersebut membuktikan alasan yang digunakan oleh pihak responden adalah tidak berasas sama sekali.” (paragraph 35)

“(ii) Kejayaan ini membuktikan bahawa pihak menuntut Berjaya mengurangkan perbelanjaan dan ini menunjukkan pihak menuntut adalah seorang yang mempunyai kecekapan dan pengurusan yang baik dalam menguruskan cawangan Pulau Pinang dan bukan sebaliknya seperti yang didakwa oleh pihak responden. Selain itu, COW-1 juga mengakui prestasi dan produktiviti cawangan Pulau Pinang adalah baik bagi tahun 2008. Oleh itu, ini jelas menunjukkan cawangan Pulau Pinang sebenarnya memperolehi keuntungan setiap tahun dan dengan itu tidak ada sebab kenapa ia perlu ditutup.” (paragraph 37)

“(iii) Dakwaan COW-1 bahawa terdapat perbincangan melalui telefon antara COW-2 dengan pihak menuntut jelas tidak benar kerana COW-2 sendiri menyatakan beliau tidak dapat bercakap dengan pihak menuntut pada tarikh tersebut.” (paragraph 39)

“(iv) Pihak menuntut tidak diberikan sebarang amaran atau surat tunjuk sebab atau pernah diambil apa-apa tindakan disiplin berkaitan dengan dakwaan yang dikatakan ke atasnya.” (paragraph 40)

“(v) Oleh itu, sijil cuti sakit tersebut bukanlah menjadi isu lagi dalam kes ini.” (paragraph 41)

“(vi) Namun begitu perjumpaan yang dirancang antara COW-2 dengan pihak menuntut tidak terjadi dan ini menyebabkan draf tersebut tidak dapat diselesaikan.” (paragraph 42)

“(vii) Setelah Mahkamah meneliti P & L tersebut (COB-3) didapati Operating Profit adalah konsisten dari tahun 2006 sehingga 2009. Malah tahun 2009 telah menunjukkan peningkatan keuntungan yang ketara setelah pihak menuntut mengambil beberapa langkah antaranya mendapatkan pengurangan bayaran sewa dan memperluaskan peluang perniagaan cawangan tersebut.” (paragraph 43)

“(viii) Mahkamah mendapati pihak responden telah gagal membuktikan atas imbangan kebarangkalian bahawa pihak menuntut telah melakukan perbuatan salahlaku seperti yang dinyatakan dalam surat penamatan tersebut. Keputusan penamatan tersebut adalah satu keputusan yang tidak wajar dan tidak sepatutnya diambil oleh pihak responden.” (paragraph 44).

[16] We entirely agree with learned counsel for the appellant that there is no illegality in the findings of fact made by the Industrial Court, nor can it be said to be plainly irrational in all the circumstances of the case. In fact there had been a proper and adequate appreciation of the facts and law by the Industrial Court and such findings were amply supported by the evidence.

[17] It is clear that the decision of the Industrial Court was consistent with the evidence. The learned High Court Judge ought not to have disturbed her findings of fact on a Judicial Review application. The proper role of the High Court in hearing a Judicial Review application was explained by Raja Azlan Shah FJ (as His Royal Highness then was) in Non-Metallic Mineral Products Manufacturing Employees Union & Ors v South East Fire Bricks Sdn Bhd [1976] 2 MLJ 67 as follows:

“For instance, it has no jurisdiction under section 25 of the Courts of Judicature Act to interfere with the findings of fact reached by the Industrial Court on the ground that the decision is erroneous except where there is a clear error of law on the face of the record. It cannot arrogate the powers of a Court of Appeal by substituting its own judgment for that of the Industrial Court on questions of fact and cannot review the evidence.”

[18] In the present case, the learned High Court Judge made his own findings of fact and in doing so disagreed with the findings of the Industrial Court that the dismissal was not justified. But disagreement is no basis for judicial review: Malaysian Oxygen Bhd v Soh Tong Wah & Anor Appeal [2015] 3 MLJ 730.

[19] The learned High Court Judge had substituted the Industrial Court’s findings of fact on the following:

(i) The failure of the appellant to respond to the draft job description.

(ii) Weak profit and loss situation.

(iii) Failure to provide a business plan.

(iv) Warning letters.

[20] In Ranjit kaur S. Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629, the Federal Court said:

“Further, it was held that a reviewing judge ought not to disturb findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to the same conclusion.”

[21] We further agree with learned counsel for the appellant that the learned High Court Judge ought not to have disturbed the findings of fact of the learned Chairman of the Industrial Court, especially where the findings involved the credibility of the witnesses whom the Industrial Court Chairman had seen and heard. The review court cannot set aside the decision merely because it believes that the decision was wrong on the merits. The review court is only concerned with the lawfulness of the process by which the decision was arrived at and can only set it aside if that process was flawed. Nothing of that sort happened in the award.

[22] Learned counsel for the appellant referred us to this court’s decision in Airspace Management Service Sdn Bhd v Col (B) Harbans Singh a/l Chingar Singh [2000] 4 CLJ 77 where it was held at page 85:

“But where the Industrial Court has accepted or rejected the evidence of a particular witness and gone on to make a finding based on such acceptance or rejection, the High Court is bound to accept such finding.”

[23] Most tellingly, nowhere in the grounds of judgment did the learned High Court Judge say that the award given by the Industrial Court was illegal or irrational. The truth is, there is nothing to suggest that the decision of the Industrial Court was illegal or irrational. We refer to the decision of the Federal Court in Ketua Pengarah Hasil Dalam Negeri v Alcatel-Luscent Malaysia Sdn Bhd. & Anor [2017] 1 MLJ 563. Given the relevance of the case, we think it is appropriate to cite in extenso the following passages in the judgment of Suriyadi Halim Omar FCJ delivering the judgment of the court at page 583:

“[69] A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity (‘the appellant’) i.e. by challenging the lawfulness of the decision making process. This is trite law. Generally, the court dealing with the judicial review application in a supervisory capacity is not to delve into the merits of the case. In other words the evidence is not reassessed. The court is merely to quash the decision of the relevant authority, if need be, and not to substitute with what it thinks is the correct decision. We are not here to usurp the powers of the designated authority.

[70] Lord Brightman in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, at p 1174 had occasion to state that a judicial review ‘is not an appeal from the decision but a review of the manner in which a decision is made’. The book authored by Mr Michael Supperstone QC and Mr James Goudie QC in Judicial Review at p 72, was also referred to, and reads:

It is easy to understand why this is so. The paradigm case of a Judicial Review challenge arises where a body whose functions are conferred by statute are said to have acted in a manner in which the law does not allow. But if the only complaint is that the body has reached a decision unfavourable to the applicant on the facts, and the claim put forward is a plea to the court in effect to substitute a different decision, the proceedings would amount to an invitation to the court to exercise the very function which the statute had confided to the body reviewed; to accede to such an invitation would be to usurp the will of Parliament. Since, of course, Parliament includes the elected element of the legislature, any such stance by the court might reasonably be castigated as undemocratic ...”

[24] Having regard to the facts and the applicable principle of law in a case of this nature, we agree that the learned Chairman of the Industrial Court had correctly exercised her duty in inquiring into the propriety of the reason that was advanced by the respondent company and had not committed any jurisdictional error. It was therefore not open to the learned High Court Judge to disturb the award.

[25] It was for all the reasons aforesaid that we unanimously allowed the appellant’s appeal and set aside the High Court’s decision.

 

ABDUL RAHMAN SEBLI
Judge
Court of Appeal Malaysia

Dated: 23 April 2018.

COUNSEL

For the Appellant: M Athimulan and T Selvadory of T Selva & Co

For the Respondent: Kanarasan Ghandinesen of Ghandi Advocates

Judgments referred to:

Airspace Management Service Sdn Bhd v Col (B) Harbans Singh a/l Chingar Singh [2000] 4 CLJ 77

Goon Kwee Phang v J & P Coats (M) Sdn Bhd [1981] 2 MLJ 129

Ketua Pengarah Hasil Dalam Negeri v Alcatel-Luscent Malaysia Sdn Bhd. & Anor [2017] 1 MLJ 563

Malaysian Oxygen Bhd v Soh Tong Wah & Anor Appeal [2015] 3 MLJ 730

Non-Metallic Mineral Products Manufacturing Employees Union & Ors v South East Fire Bricks Sdn Bhd [1976] 2 MLJ 67

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

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