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Case Update: Presiding Officer of the Labour Department can still exercise power to inquire even if withdrawal of the complaint had been made

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EMPLOYMENT LAW
Indian Nationals – Employee – Failure to provide proper accommodation – Failure to pay wages – Complaint – Department of Labour – Forego Complaint – Appeal

Poosai Pandian Gunasekaran & 47 Ors v. AJN Energy (M) Sdn Bhd
Civil Appeal No.:C-04(A)-82-03/2021 | Court of Appeal
- see the grounds of judgment here

Facts Poosai Pandian and the 47 others (the ‘Appellants’) are Indian nationals formerly employed by AJN Energy (M) Sdn Bhd (the ‘Respondent’) to undertake work in relation to high electrical voltage towers in Bentong, Pahang Darul Makmur. During the course of their employment, the Respondent failed to provide the proper and appropriate accommodation and medical facilities as well as personal protection equipment to the Appellants. In addition, the Respondent also failed to pay the Appellants’ full wages for the months of September and October 2018. The Appellants then fled the workplace and subsequently lodged their complaint to the Department of Labour. The initial hearing of the Complaints at the Labour Court was adjourned at the request of the Respondent to have a settlement discussion, which was however, not fruitful. The hearing resumed and during the course of the hearing, several Appellants stated that they wished to return to their home country expeditiously and accordingly forego their respective complaint. The Presiding Officer proceeded with the inquiry and ultimately ordered the Respondent to pay the sum of RM95,617.00 to all 48 Appellants being their unpaid wages. The Respondent was dissatisfied and appealed to the High Court. At the High Court, the learned judge allowed the appeal. Hence this appeal at the Court of Appeal.

Issues 1. Whether Section 69 of the EA confers full discretion to the Presiding Officer of the Labour Department and/or Labour Court to further investigate and decide on a complaint despite the statements by the Complainant that they wanted to withdraw the complaint during the course of proceedings; and
2. Whether the Presiding Officer of the Labour Department and/or Labour Court is right in deciding the Respondent has a duty to pay wages to the Applicants under the Employment Contract and EA, regardless of statements made by the Applicants that they wanted to withdraw the complaint.

Held In allowing the appeal, Court of Appeal Judge Lim Chong Fong held that the Director General of Labour’s exercise of discretion to inquire into a dispute on matters such as the non-payment of wages need not be premised on a complaint being made but rather on whether the dispute on wages have been resolved by way of a settlement or payment and hence, even if there had been a withdrawal of the complaint, the Director General of Labour may still proceed with his inquiry and made the necessary order. The Court of Appeal further held that, jurisdiction and power are only forfeited if there was a negotiated settlement or prior payment of the unpaid wages, however in this situation there wasn’t any as a matter of fact. In addition, the Court of Appeal held that the statements made by several Appellants are equivocal in the sense that they were concerned with prioritised returning to India soonest rather than being bogged down in the Labour Court inquiry. There was however no unmistakable and unequivocal expression by them of waiving or foregoing their unpaid wages by the Respondent. The Court also stated that the Employment Act is a social legislation and must therefore be interpreted liberally and equitably in favour of the weaker party who are the poor and likely illiterate Appellants in this case. Hence, the appeal was allowed and the judgement of the High Court was set aside.

Zul Rafique & Partners
{28 February 2023}

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