9 December 2021
Please click HERE for the Mandarin version of the case update.
P. Jayasingam, P. Thavaselvi and Jude Pravin Peters from our Employment and Industrial Relations practice group successfully responded in favour of Tenaga Nasional Berhad (the “2nd Respondent”) to an appeal filed by Persatuan Eksekutif Tenaga Nasional Berhad (the “Appellant”) against part of the decision of the Honorable Minister of Human Resources (the “1st Respondent”) under s. 9(1D) of the Industrial Relations Act 1967 (“IRA”) in the Court of Appeal on 25.11.2021.
The Appellant filed an appeal against the decision of the High Court of Malaya, which dismissed the Appellant's application for an order of certiorari and mandamus against part of the decision of the 1st Respondent pursuant to s. 9(1D) of the IRA that 1,306 employees of the 2nd Respondent are not employed within the Executive capacity and thus not entitled to be members of the Appellant (the “1st Respondent’s Decision”).
Appellant’s Grounds of Appeal
Below were the grounds raised by the Appellant:
1. The Learned High Court Judge erred in law and fact when he did not consider and/or did not give any consideration to specific issues, ie:
2. The failure of the 1st Respondent to present the investigation report and all investigation papers would require the 1st Respondent to provide reasons for his decision. Yet, the Learned High Court Judge decided that the 1st Respondent is not required to provide any reasons for his decision.
(a) There were no investigation papers or detailed investigation report disclosed in the High Court. Yet, the Learned High Court Judge concluded that the 1st Respondent did not exceed his jurisdiction in exercising the powers conferred to him pursuant to s. 9 (1D) of the IRA , when such a conclusion may only be made after examining the nature of the investigation or after a due investigation.
(b) There were no documents produced in the High Court to support the 1st Respondent’s Decision. Yet, the Learned High Court Judge decided that the 1st Respondent had adhered to all provisions of law.
3. As a review court it was the responsibility of the High Court to assess whether the 1st Respondent’s decision was tainted with illegality, irrationality, procedural impropriety and/or proportionality. Yet, the Learned High Court Judge decided that there was no requirement in law for the 1st Respondent to present the investigation report and other information in respect of the investigation;
Decision of the Court of Appeal
After Hearing submissions from parties respectively, the Panel of the Court of Appeal unanimously found that there was no error on the part of the Learned High Court Judge in dismissing the Appellant's application for judicial review and agreed with the Respondents’ respective submissions that there was no requirement in law for the 1st Respondent to produce and/or disclose the Investigation Report and to produce reasons for the 1st Respondent’s Decision. Accordingly, the Panel of the Court of Appeal dismissed the Appellant's appeal, with costs.
For the full judgement of the High Court, click HERE.
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