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Court of Appeal affirms that the Industrial Court is the correct forum for compensation for wrongful dismissal

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27 February 2024

P. Jayasingam, P. Thavaselvi, together with Sophia Ismail from Zul Rafique & Partners’ Employment and Industrial Relations Practice Group had successfully acted for Tenaga Nasional Berhad (“1st Respondent”) and Zailan Zam Zam bin Ishak (“2nd Respondent”) at the Court of Appeal in respect of an appeal filed by an ex-employee of the 1st Respondent (“the Appellant”) against the entire decision of the High Court of Malaya in Kota Bharu on 30.8.2022 striking out the Appellant’s claim against the Respondents with costs.

Brief Facts
The Appellant was a former employee of the 1st Respondent and his last held position was as “Penyelenggara Stor Tingkatan Kanan”. On 24.1.2018, the Appellant was suspended from service to facilitate the 1st Respondent’s investigations into the loss of 15 drums of cables, copper winding and copper busbars from 20 transformers.

The Appellant was required to attend a Domestic Inquiry proceedings to answer 6 charges of misconduct to which he pleaded Not Guilty. On 24.4.2019, the 1st Respondent’s Disciplinary Committee was satisfied that the charges of misconduct preferred against the Appellant had been proven (specifically, Charges 1, 2, 3, 4 and 5) and decided to impose the punishment of dismissal from service on the Appellant.

On 13.5.2019, the Appellant filed representations for reinstatement under Section 20(1) of the Industrial Relations Act (“IRA”) 1967, that he was dismissed from service on 24.4.2019 by the 1st Respondent, without just cause or excuse. By a letter dated 26.9.2019, parties were informed that the Honourable Minister of Human Resources had decided under Section 20(3) of the IRA 1967 that the said representations were not fit to be referred to the Industrial Court.

The Appellant failed to challenge the decision of the Honourable Minister of Human Resources via Judicial Review. More than 2 years thereafter, on 28.12.2021, in the High Court of Kota Bharu, the Appellant filed the Writ of Summons and Statement of Claim premised on the tort of conspiracy by the Respondents and further prayed for damages, together with the consequential relief as to all salaries and benefits in arrears.

Decision of the High Court of Malaya in Kota Bharu – Civil Suit No: DA-22NCVC-64-12/2-21
The Respondents filed an application to strike out the Appellant’s Writ of Summons and Statement of Claim (“Striking Out Application”). On 30.8.2022, The Judicial Commissioner Datuk Mohamad Abazafree bin Mohd Abas (“the  learned JC”) allowed the Striking Out Application, holding that the Appellant’s claim against the Respondents is "obviously unsustainable" under any one of the grounds stipulated under Order 18 rule 19(1) of the Rules of Court 2012 (“ROC 2012”). The learned JC was also of the view that writ action by the Appellant fails to disclose a reasonable cause of action against the Respondents and is frivolous, vexatious and otherwise an abuse of process. The Appellant appealed against this decision (“the Appellant’s Appeal”).

The High Court decision can be found HERE.

Decision of the Court of Appeal – Civil Appeal No: D-02(IM)(NCvC)-1882-10/2022
On 5.2.2024, the Honourable Justices Nantha Balan A/L E.S. Moorthy, Dato’ Mohd Nazlan bin Mohd Ghazali, and Dato’ Choo Kah Sing unanimously dismissed the Appellant’s Appeal with costs on the following grounds:

(a) The claim of wrongful dismissal is not sustainable because the correct forum to have litigated this matter is the Industrial Court. The Appellant’s claim, as pleaded, would be an abuse of the process of the Court. The present appeal is no different that the Court of Appeal case of 7-Eleven Malaysia Sdn Bhd v. Ashvine Hari Krishnan [2023] 4 CLJ 895; and

(b) The Appellant’s claim of tort of conspiracy is not sustainable because the Statement of Claim is woefully lacking in material particulars and in all circumstances lacks merits.

Key Takeaways
  • As a matter of principle, if a claim is one for compensation for wrongful dismissal (loss of employment) then it is a claim which ought to be ventilated via the statutory dispute mechanism i.e. Industrial Court and not the civil court.
  • It is trite that Order 18 Rule 7 of ROC 2012 mandates that a pleading must set out all material facts.
  • It is also trite that Order 18 Rule 12 (1)(a) of the ROC 2012 mandates that every pleading must contain necessary particulars.
  • In order to sustain a claim for conspiracy, it is important that the essential elements for a tort of conspiracy is fulfilled. As per Renault SA v. Inokom Corp Sdn Bhd & Anor and other appeals [2010] 5 CLJ 32, CA, the elements are as follows: (i) an agreement between 2 or more persons to act; (ii) the agreement was for the purpose of injuring another; (iii) there were overt acts that accompanied this agreement; and (iv) the act done in execution of that agreement resulted in damages to another.

For more insight into this area of law, please contact our Partner in our Employment & Industrial Relations Practice Group:
P Jayasingam
Wong Keat Ching
Thavaselvi Pararajasingam
Teoh Alvare

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