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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

(BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS)

PERMOHONAN SEMAKAN KEHAKIMAN NO.R1-25-59-2008

ANTARA

GREY WORLDWIDE SDN BHD … PEMOHON

DAN

CHONG NGAI LEONG … RESPONDEN- MAHKAMAH PERUSAHAAN MALAYSIA RESPONDEN

JUDGEMENT

This is an application under Order 53 of the Rules of the High

Court 1980 for an order of certiorari to quash the Industrial Court

Award No.127 dated 21.1.2008 which concluded that the

dismissal of the 1st Respondent by the Applicant was without just

cause or excuse. I allowed the application with costs of

RM3,000.00 to the Applicant.

Background

2. The background facts as found in the Award show that the

1st Respondent commenced employment with the Applicant on

2.2.1999 as Senior Account Manager. He held various positions

and was transferred between a few companies within the Grey

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Worldwide Group. By a letter dated 4.10.2001 the 1st Respondent

was transferred to G2 Sdn Bhd (“G2”). Subsequently by a letter

dated 3.9.2002 the 1st Respondent was transferred to new

business group in G2. The 1st Respondent was also informed that

an appraisal to benchmark performance in his new role would be

held at the end of the year. Prior to his transfer his performance

appraisal rated him as good.

3. In January 2003 a performance appraisal was carried out

by one Chris Leong, the company’s President/CEO and by

Lawrence Chan, the 1st Respondent’s superior from January

2003. Chris Leong had work interaction with the 1st Respondent

and the 1st Respondent had worked with Chris Leong as well.

COW-1 who is the company’s Director, Resources Division was

the moderator during the appraisal. Following the appraisal the 1st

Respondent was issued a letter dated 23.1.2003 which noted that

due to the average score and issues raised, a follow-up appraisal

would be conducted in April 2003. Another witness, Michael Tan

(COW-2) who is the General Manager in G2 and was the 1st

Respondent’s superior in the new business group testified that for

the appraisal done on the 1st Respondent in January 2003, Chris

Leong sought his views on the 1st Respondent’s performance.

COW-2 agreed with the ratings given in the appraisal.

4. The April 2003 appraisal was conducted by Lawrence

Chan and COW-1 was again the moderator. The 1st

Respondent’s performance was rated “Average-Poor” and the 1st

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Respondent was appraised as lacking in many key areas. A letter

dated 17.4.2003 was issued to the 1st Respondent and he was

informed that he needed to improve significantly and that if his

overall performance did not meet the company’s expectations, his

services would be terminated. The 1st Respondent was given

until 15.5.2003 to turn around some projects for Mitsubishi or put

up a new business pitch. The 1st Respondent was to get

guidance from Lawrence Chan. COW-1 said that the company

saw no improvement in the 1st Respondent’s performance.

Premised on the warning letter issued earlier, the Applicant

terminated the 1st Respondent’s services.

5. The 1st Respondent disagreed with the appraisal done by

Lawrence Chan in April 2003 because according to him he had a

good track record in the company and the appraisal by Lawrence

Chan was inconsistent with his track record. Further the 1st

Respondent says that he was not given sufficient time to settle

down in his new job. The 1st Respondent called two witnesses

(CLW-2 and CLW-3). CLW-2 whose company’s account was

handled by the 1st Respondent testified that they had no issues

with the 1st Respondent. CLW-3 had known the 1st Respondent

for 10 years and had worked with the 1st Respondent in Grey’s for

about 4-5 years. She disagreed with the 1st Respondent’s

appraisal.

6. Before the Industrial Court counsel for the 1st Respondent

submits that since the 1st Respondent disputed the appraisal done

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by Lawrence Chan therefore Lawrence Chan ought to have been

called to prove the truth of the appraisal. Since Lawrence Chan

was not called, therefore the truth of the contents of the appraisal

was not proven. For the Applicant it is submitted that there were

various appraisals and correspondences produced before the

Industrial Court which the 1st Respondent had not disputed.

Further COW-1 and COW-2 both have personal knowledge of the

1st Respondent’s performance and had testified that the 1st

Respondent could not deliver. The 1st Respondent had also been

forewarned as to his performance from the comments in the latest

appraisal six months prior to his dismissal.

7. On the issue of Lawrence Chan it is submitted that the

appraisals were within the knowledge of the 1st Respondent and

there was nothing to show that the appraisals were concocted or

altered. The 1st Respondent did not lodge any protest but only did

so in court. It was submitted that this was a mere afterthought.

8. The Industrial Court decided that it was essential for the

Applicant to call Lawrence Chan to prove the 1st Respondent’s

poor performance. The Industrial Court found that the two

appraisals produced were insufficient proof of the 1st

Respondent’s poor performance since the 1st Respondent did not

agree with the ratings given. The Industrial Court found that as

the evaluation by Lawrence Chan is disputed therefore it was

necessary to put Lawrence Chan in the witness stand to be

examined on the ratings and the comments he had made

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regarding the 1st Respondent’s job performance. The Industrial

Court opined that it is only when Lawrence Chan is able to

satisfactorily substantiate the appraisal can it be said that there

was convincing and compelling evidence that the 1st Respondent

had performed poorly justifying his dismissal. The Industrial Court

was of the view that the evidence of COW-1 and COW-2 were

insufficient to prove that the 1st Respondent was not performing

his duties as expected by the Applicant. With regard to COW-1

the Industrial Court found that being the Director of the Resources

Division she would not in all probability have personal knowledge

about the 1st Respondent’s performance and in all the appraisals

she was only the moderator. As for COW-2 the Industrial Court

was of the view that it was not right and fair to rely on his

statements since he was the 1st Respondent’s superior only from

September 2002 till the end of that year after which Lawrence

Chan became the 1st Respondent’s immediate superior. Further

the views of COW-2 were sought only in respect of the first

appraisal in January 2003. He was not involved in the appraisal

done in April 2003. Therefore the Industrial Court found that the

evidence of COW-2 cannot fully prove the 1st Respondent’s poor

performance. The Industrial Court therefore found that the

Applicant had failed to prove the 1st Respondent’s poor

performance and thus his dismissal was without just cause or

excuse.

9. Counsel for the Applicant submits that the absence of

Lawrence Chan ought not to be fatal to the case. It is submitted

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that there was sufficient and ample evidence to show the just

cause or excuse to terminate the 1st Respondent’s services which

the Industrial Court has failed to take into account. Counsel

submits that COW-1 and Lawrence Chan were both moderators

during the performance appraisal conducted by Chris Leong and

all signed the performance appraisal. The performance

appraisals were tendered by COW-1 who also signed them. She

sat through the appraisals and subsequently she issued letters to

the 1st Respondent highlighting his shortcomings. With regard to

COW-2 it is submitted that he was the 1st Respondent’s superior

immediately before Lawrence Chan and therefore his evidence is

relevant. Counsel submits that the contents of the appraisals were

not disputed insofar as the accuracy is concerned and therefore

even if Lawrence Chan was called, he would merely confirm the

appraisal. The 1st Respondent merely disagrees with the

appraisals but that was only his own view.

10. Counsel further submits that the Industrial Court failed to

consider the warning given to the 1st Respondent and the

opportunity given to him to improve although according to

counsel, the 1st Respondent being in a senior management

position, the need for such a warning was less apparent (Robert

John Reeves v Menteri Sumber Manusia, Malaysia & Anor [2000]

1 CLJ 180). Therefore it is submitted that the Industrial Court

failed to consider all the other evidence which justifies the

termination of the 1st Respondent’s employment. For the 1st

Respondent it is submitted that this is an appeal in the guise of a

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judicial review as the Applicant is seeking to quash findings of fact

by the Industrial Court.

11. I am unable to agree with counsel for the 1st Respondent

that this application is an appeal in the guise of a judicial review.

This application is premised on the ground that the Industrial

Court has failed to consider all relevant matters which, had it

considered them, it would not have arrived at the decision that it

did. In the case of Chan Kwai Chun v Lembaga Kelayakan [2002]

2 CLJ 288 Arifin Zakaria J (now CJ Malaya) said –

The principle behind the approach is that judicial review is concerned with the legality and not the merits of a decision; accordingly it is not open to me to examine the evidence with a view to forming my own view about the substantial merits. (See Tesco Stores Ltd. v. Secretary for the Environment[1995] 2 All ER 636 at 657.) In Reid v. Secretary of State for Scotland[1999] 2 AC 517 at p. 541 L. Clyde said:

Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply. But while the evidence may have to be explored in order to see if the decision is initiated by such legal deficiencies it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence.

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12. The evidence adduced before the Industrial Court shows

that though the appraisal done by Lawrence Chan was the final

appraisal before the decision was made to terminate the 1st

Respondent’s employment, the basis of the termination is not

grounded solely on the appraisal by Lawrence Chan. There is

evidence of a series of appraisals done before 14.4.2003. It is

also noted that COW-1 has been a moderator of the 1st

Respondent’s appraisals since 1999. Having been a moderator

and having been present during all the appraisal proceedings, it is

reasonable to infer that by 2003, COW-1 would have been familiar

with the appraisals made of the 1st Respondent by the various

appraisers. It is in evidence that COW-1 was the person who

corresponded with the 1st Respondent regarding matters relating

to his appraisals. In fact even the letter informing the 1st

Respondent that the Applicant was not awarding him a bonus and

the final warning letter were issued by COW-1. Therefore the

Industrial Court ought to have considered these factors in

considering the weight to be attached to the evidence of COW-1.

I agree with counsel for the Applicant that the finding of the

Industrial Court that the evidence of COW-1 was based on what

others told her is perverse.

13. With regard to COW-2, he was one of the appraisers for

the appraisal conducted on 11.12.2002 together with Chris Leong

and Lawrence Chan. Whilst it is true that COW-2 was the 1st

Respondent’s immediate superior for approximately three months,

he would have sufficient knowledge to appraise the 1st

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Respondent. Further he said that he agreed with the ratings in

the appraisal. Hence his evidence ought to have been accorded

due consideration by the Industrial Court.

14. I agree with counsel for the Applicant that the Industrial

Court had failed to consider all the other appraisals made prior to

the appraisal dated 14.4.2003. A proper consideration of these

other appraisals and the series of correspondences sent to the 1st

Respondent pertaining to his performance would have shown that

the 1st Respondent’s performance was found to be wanting not

just in April 2003. This is supported by the decision of the

Applicant not to award him a bonus for 2002.

15. The question at the end of the day is whether a reasonable

tribunal similarly circumstanced would have come to a like

decision on the facts before it (William Jacks & Co (M) Sdn Bhd v

S Balasingam [1997] 3 CLJ 235 CA). Having considered the

evidence and the decision made by the Industrial Court, I find that

the Industrial Court has failed to properly consider the relevant

evidence adduced by the Applicant in support of its decision to

terminate the 1st Respondent on the ground of poor performance.

By omitting to take into account relevant considerations the

Industrial Court has committed an error of law. For the

aforementioned reasons the application is allowed and the Award

is quashed. Costs of RM3,000.00 to the Applicant.

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Dated 14th July 2010

AZIAH BINTI ALI HAKIM MAHKAMAH TINGGI MALAYA KUALA LUMPUR Counsel : Applicant - HC Yong (Messrs Zaid Ibrahim & Co.) 1st Respondent - Jeremy Ling (Messrs Lee, Ling & Partners)