INDUSTRIAL COURT OF MALAYSIA

CASE NO. 12/4-1849/05

BETWEEN

ENCIK ALBERT LIM TOW SUN

AND

LYSAGHT MARKETING SDN. BHD.

AWARD NO. 140 OF 2013

Before :

Y.A. TUAN GULAM MUHIADDEENBIN ABDUL AZIZ

-

CHAIRMAN

Venue : Industrial Court, MalaysiaKuala Lumpur

Date of Reference : 24.11.2005

Dates of Mention : 21.02.2006; 21.06.2006; 07.08.2006;07.02.2007; 06.08.2007; 08.10.2007;25.10.2007; 07.04.2009; 28.05.2009; 17.08.2009; 25.08.2009; 07.09.2009;25.01.2010; 25.02.2010; 16.03.2010;20.04.2010; 25.05.2010; 14.06.2010;29.06.2010; 29.07.2010; 11.08.2010;08.102010; 01.11.2010; 15.11.2010;29.11.2010; 10.01.2011; 17.02.2011;22.07.2011; 13.02.2012; 13.03.2012;17.04.2012; 24.04.2012; 23.05.2012;06.06.2012

Date of Hearing : 09.01.2012

Representation :

:

Ms. Kamini from Messrs Bodipalar PonnuduraiNathan, Counsel for the Claimant

Ms. Kavitha from Messrs Ramadass & Associates, Counsel for the Company

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Reference:

This is a reference made under section 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of ENCIK ALBERT LIM TOW SUN (“the Claimant”) by LYSAGHT MARKETING SDN. BHD. (“the Company”).

AWARD

Introduction

This case was referred by the Honourable Minister of Human

Resources to the Industrial Court regarding the dismissal of Albert

Lim Tow Sun (“the Claimant”) by Lysaght Marketing Sdn. Bhd.

(“the Company”) on 29 January 2003. The reference was

made under Section 20(3) of the Industrial Relation Act 1967

(“IRA 1967”)was dated 24 November 2005 and was received by the

Court on 23 December 2005.

Brief Facts of the Case

The Claimant commenced employment with Lysaght

Galvanising Services Sdn. Bhd. as an Engineer with effect from

1 August 1988 vide a letter of appointment dated 28 July 1988.

Prior to 1 August 1991 and before becoming a public listed

Company, Lysaght Galvanising Services Sdn. Bhd. undertook

restructuring exercise and in that process the Claimant and some

other staff within the group were transferred to Lysaght Marketing

Sdn. Bhd., its Sales and Marketing arm.

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The Company, a wholly owned subsidiary of Lysaght

Galvanised Steel Bhd. issued the Claimant a letter of Employment

on 1 August 1991 informing the Claimant that terms and conditions

contained in the Letter of Employment will substitute the previous

Letter of Employment dated 28 July 1988 and that his past services

with the Group will be treated as continuous.

Sometime in August 1995, the Claimant was transferred to

Ipoh as the Company decided to relocate the Engineering

functions of the Tower Division to Ipoh. In 1997, the Company's

Accountant, Mr. T.Y. Lee issued a Memorandum dated 15 January

1997, directing Mr. L.B. Tan, Accounts Manager based in Ipoh office,

that the Claimant's salary be issued from Ipoh Office under Lysaght

Galvanised Steel Bhd and to be credited into Claimant's account in

Ipoh.

In May 2002, the Company transferred the Claimant from Ipoh

to Kuala Lumpur after having him posted at the factory in Ipoh,

Perak for 7 years. The Claimant was informed by the Managing

Director that the reason for the transfer was because the Company

wanted the Claimant to set up and head a new Technical Division in

Kuala Lumpur and also to provide Technical Support to the

International Market Division which was then recently set up in

Kuala Lumpur.

On 28 January 2003, the Claimant issued a letter to the

Managing Director of Lysaght Galvanised, Chew Kar Heng, who is

also one of the Directors of the Company pleading Constructive

Dismissal.

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In the letter, the Claimant states as follows;

Albert Lim Tow Sunday45 Jalan Telok PulaiTaman Seputeh58000 Kuala Lumpur

Tuesday, 28 January 2003

The Managing Director Lysaght Galvanised Steel Berhad11 Jalan Majustret U1/26Sesyen U1, Hicom-Glenmarie Industrial Park40150 Shah AlamSelangor Darul Ehsan

Mr. Chew Kar Heing,

Re: Termination of employment due to loss of trust and confidence in the company

I refer to our meeting in your office on Saturday afternoon

25 January 2003, in which you had very forcibly required me to sign a

letter, which you had prepared. The contents of the letter was in the light

that should I have contact with parties not under your instruction to do

so, I allow myself to be liable and that Lysaght can take a suit against me

on that basis. As you had explained, it also includes the event should my

name card be given to any party of which I had not been instructed to

give.

I had explained that I needed to look at the letter thoroughly and that my

main concern was that I had already given out many name cards in the

past year of which I would open myself to be easily accused of giving out

after signing this letter.

Despite the above explanation, you had forcibly required me to sign the

letter. With my insistence that I should look at the letter first, you called

your General Manager, Mr. Chua Tia Bon on your handphone to tell him

that, “Albert refused to sign the letter” and that you have instructed him

while I was in full hearing that I should be stripped of my name cards and

not allowed to leave the office nor have contact with anyone without Mr.

Chua or your permission, and that I'll be put to become a “backroom boy”

and intentionally loaded with work to check on my performance.

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I have always been working extremely hard for the company. A look at

my past records will show that I have helped the company in many new

developments to improve the company income status and making the

company become more efficient.

With the above, you have shown by your behavior, that I will be

systematically forced out of my employment, even though my past

records shows that my performance has always been good.

I have now totally lost all confidence and trust in Lysaght, especially in

you, Mr. Chew Kar Heing, in providing me the security of a long term

tenure in your company, even though I have been hard-working and have

been a major contributor to the good of the company, and I have found

that I am systematically being manoeuvred out of my employment.

I therefore have been left with no choice but to treat myself as having

been constructively dismissed by you, as a result of your unreasonable

attitude, behaviour and threats towards me during the meeting of

25 Jan 03, and I reserve all my right to commence legal proceeding

against the company to ensure that justice is done.

Yours truly.

Signed

…......................................

ALBERT LIM TOW SUN

Regional Sales and Marketing Manager

Lysaght Galvanised Steel Berhad

Lysaght Marketing Sdn. Bhd.

Stramit R & D Systems Sdn. Bhd.

The Company then wrote to the Claimant on 7 February 2003

denying the Claimant's contention of constructive dismissal. In the

said letter the Company pointed out to the Claimant that the

Company's intention in issuing the instruction to him was

misconstrued by the Claimant. Besides explaining the need for the

said letter to be issued, the Company also explained to the Claimant

that the instruction was issued to the Claimant to ensure that the

Company's and the Claimant's interest were protected. The

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Company also placed the Claimant on notice that his refusal to sign

the Internal Memorandum showed his disregard for the interests of

the Company. Besides denying the allegations made by the

Claimant, the Company assured the Claimant that it had no intention

to drive the Claimant out of his employment by directing him to

report for duty on Monday 10th February 2003 so that a meeting

could be arranged between himself and the Management to resolve

whatever grievances the Claimant had with the Management.

Despite the Claimant's refusal to report for work as directed,

the Company issued the Claimant another letter on 10th February

2003 and directed him to report for work on 13th February 2003 at

9.00 a.m.

The Company on 14th February 2003 received a letter dated

10th February 2003 from the Claimant informing the Company that

since he had considered himself as constructively dismissed by the

Company on the 29th January 2003, the Company's requirement for

the Claimant to report for duty was not applicable. The Claimant

further informed the Company in this letter that he would not be

responding to any further letters from the Company.

On 5 March 2003 the Company received a letter from the

Industrial Relations Department stating that the Claimant had made

a representation under section 20 of the Industrial Relations Act

claiming that the Company had dismissed him without just cause or

excuse and that a conciliation meeting was to be held at the said

Department on 11 April 2003.

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At the conciliation meeting which was brought forward to

10th April 2003, the Company offered to reinstate the Claimant to his

former position as Regional Sales and Marketing Manager without

any loss of salary and benefits whatsoever and at the request of the

Claimant, the Company agreed that the Claimant would report for

work on 24th April 2003 and that the period between 15 April 2003

and 23 April 2003 should be treated as annual leave taken by the

Claimant. The terms of this offer of reinstatement and the

Claimant's acceptance of the same was conveyed to the Claimant

vide the Company's letter dated 11th April 2003 copied to the

Industrial Relations Department.

The Claimant then wrote to the Industrial Relations

Department on 17th April 2003 claiming that Lysaght Marketing Sdn.

Bhd. was not his employer based on his EA Forms and insisted that

Lysaght Galvanized Steel Berhad was his employer and further

contended that he cannot be reinstated to a Company which was not

his employer and alleged that the Company's offer to reinstate him

to his former position was not sincere.

The Company then wrote to the Industrial Relations

Department on 25th April 2003, copied to the Claimant, referring to

the conciliation meeting held on 10th April 2003 reconfirming the

terms of the settlement and that besides stating the Claimant's

reluctance to be reinstated to his former employment, informed the

said officer of the Department that the Company was ready, willing

and able to reinstate the Claimant to his former employment and

requested the said officer to direct the Claimant to return to work

immediately.

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The Claimant then wrote to the Industrial Relations

Department on 30th April 2003, copied to Mr. Chew Kar Heing,

Director, Lysaght Galvanized Steel Berhad, raising questions of law

and requesting that the representation be referred to the Court to

decide on the representation.

The Claimant's representation under Section 20 of the

Industrial Relations Act was then referred to this Honourable Court

for a decision.

Before the commencement of the Hearing, the Claimant's

Counsel made an application on the 25th February 2010 to join

Lysaght Galvanized Steel Bhd. to the Industrial Court proceedings

and the Company objected to the said Joinder Application due to the

fact that the Claimant was intentionally delaying and abusing the

court process. Following submissions made by respective Counsels,

this Court vide Award 167 of 2011 dated 8th February 2011

dismissed the Claimant's application to join Lysaght Galvanized as a

party to the proceedings. The matter then proceeded in the Court

by way of hearing.

The Issue

In the course of the hearing on 9th and 10th of January 2012

during the cross-examination of the Claimant, the Claimant was

questioned to which Company he was seeking to reinstatement. The

questions and answers are as follows;

Q3 : Refer to paragraph 10 [of the Statement of Case], which

Company are you asking to be reinstated to?

A : To the Company which pays my salary, Lysaght Galvanized

Steel.

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Q4 : Refer to paragraph 1 of Statement of Case, please read to

the Court.

A : Read by the Claimant.

Q5 : Which is the Company stated here?

A : Lysaght Marketing Sdn. Bhd.

Q6 : Refer to page 1 of COB-1; who is the employer who

dismissed you as per this heading?

A : Lysaght Marketing Sdn. Bhd.

Q7 : You agree with me that you are applying for reinstatement

to a Company which is different from the Company stated in

the Minister's reference.

A : Yes.

Q8 : P; There is no basis for you to apply for reinstatement to

Lysaght Galvanized Steel as it is not your employer.

A : I disagree.

Q9 : You are still maintaining reinstatement to Lysaght

Galvanized Steel Sdn. Bhd.?

A : Yes.

The Learned Counsel for the Company, Mr. Ramadass was of

the view that as the position taken by the Claimant during the cross-

examination that he was seeking reinstatement to a position he was

not holding at Lysaght Galvanized Steel Bhd., it was found no longer

relevant to continue with the cross-examination since the Claimant

was seeking a remedy which this Court would not have the power to

grant.

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Evaluation and Findings

It is obvious that the Claimant in his cross-examination

testified that he is asking to be reinstated to Lysaght Galvanized

Steel which is not the Company stated in the Minister's reference.

The Claimant further testifed that Lysaght Galvanized Steel is his

employer and not the Company in the reference i.e. Lysaght

Marketing Sdn. Bhd.

The fact that the Claimant is seeking reinstatement to a

Company which is not a party to this dispute would mean by

inference that the Company is abandoning his claim for

reinstatement against the Company in this case; i.e. Lysaght

Marketing Sdn. Bhd.

Threshold Jurisdiction of the Industrial Court

The Industrial Court is an arbitration tribunal constituted by

the IRA, 1967. The powers of the Industrial Court in relation

to dismissal case are set out in Section 20(1) and (3) of the IRA,

1967. This statutory machinery is set in motion initially by the

workman making representations to the Director General under

Section 20(1) which states as follows;

Section 20(1) IRA

“Where a workman irrespective of whether he is a member of a trade

union or otherwise considers that he has been dismissed without just

cause or excuse by his employer, he may take representations in

writing to the Director General to be reinstated in his former

employment: the representations may be filed at the office of the

Director General nearest to the place of employment from which the

workman was dismissed.

[Emphasis Added]

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Section 20(3) of IRA

Upon receiving the notification of the Director General under

subsection (2), the Minister may, if he thinks fit, refer the

representation to the Court for an award.”

In Holiday Inn Kuching v Elizabeth Lee Chai Siok [1992]

2 CLJ (Rep) 521, Y.A. Haidar J summarised the requirements of

S.20(1) and 20(3) of IRA 1967 to be;

“The elements of representations would appear to be as

follows;

(i) : the respondent must be a workman (see

Dr. A.Dutt v Assunta Hospital [1980]

1 MLJ 304).

(ii) : whether there was a dismissal and if so, it

must be without just cause or excuse by his

employer (see Wong Cee Hong v Cathay

Organisation (M) Sdn. Bhd. [1988] 1 CLJ

(Rep) 298).

(iii) : the workman has made “representations in

writing” to be “reinstated in his former

employment.”

The representations by the Minister to the Industrial Court

under s.20(3) of IRA 1967 must necessarily confine to

representations for reinstatement by virtue of s.20(1) of IRA

1967. The power to make an award by the Industrial Court is

provided by s. 30(1) of IRA 1967 and reads:

“The Court shall have power in relation to a trade

dispute referred to it or in relation to a reference to it

under s.20(3), to make an award (including an interim

award) relating to all or any of the issues.”

[Emphasis Added]

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It would clearly appear therefore that if a workman does not

require reinstatement, there would not be reference to the

Industrial Court under s.20(3) of IRA.

In the case of Hodge v Ultra Electric Ltd (1943) 1 KB 462,

466, Tucker J at page 466 defined reinstatement as;

“Putting the specified person back in law and in fact, in the

same position as he occupied in the undertaking before the

employer terminate his employment.”

From the readings of Section 20(1) and (3) of IRA and also the

case of Holiday Inn Kuching (supra) it is clear and obvious that in his

representations to the Director General, an employee must indicate

that he wants to be reinstated to his former employment. And it is

because he has indicated thus that the Minister refers such

representations to the Court. It would appear therefore that if a

workman does not require reinstatement, there would not be

reference to the Industrial Court under Section 20(3) of IRA.

In the present case, based on his pleadings the Claimant is

seeking for reinstatement to his former position in the Company

without any loss of benefits whatsoever. However, based on the

evidence given in Court, the Claimant is seeking for reinstatement to

a Company, i.e. Galvanized Steel Bhd. which is not a party to the

proceedings and to a position that he was not holding at the date he

claimed constructive dismissal.

This Court is obviously not vested with the powers to consider

and make any award in respect of the claim for reinstatement to a

Company which is not a party to the dispute before this Court. As

such it would be an exercise in futility to proceed to hear the merits

of the claim of constructive dismissal since the remedy sought is not

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available to the Claimant in this Court. The fact that the Claimant is

seeking reinstatement to a Company which is not a party to this

dispute would mean that the Claimant had abandoned his claim for

reinstatement against the Company in this case; i.e. Lysaght

Marketing Sdn. Bhd. and therefore this Court had ceased to have

jurisdiction over this matter.

In support of this proposition of law where the workman

abandons the claim for reinstatement at the hearing and the Court

dismissing the claim on this ground can be seen in the case of

Jagvinder Kaur H. Pritam Singh v Royal Selangor

International Sdn. Bhd. [2008] 3 ILR 293 whereby the Learned

Chairman Y.A. Franklin Goonting states as follows;

“The Claimant pleaded constructive dismissal but during the

course of the hearing she had stated that she did not want

reinstatement. Counsel for the respondent then submitted

that in view of the Claimant's stand of not wanting

reinstatement, the Court was not seised with jurisdiction to

hear the matter any further and applied for the case to be

struck off. The Claimant then sought to retract her answer

which was not allowed and the matter was adjourned to

another day to enable the respective counsel's to research

the matter. The sole issue that arose for determination

before this Court was whether or not the Court was seised

with jurisdiction to hear this matter.”

The Learned Chairman held that the Industrial Court has no

jurisdiction to hear the matter. He further states;

“Margaret Wong's case was clearly distinguishable since the

issue there had concerned pleadings which had been a

procedural matter whereas in the present case the claimant

had confirmed under oath that she had not wanted

reinstatement. As such, the court would be committing an

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error of law if it were to involve itself in conjecturing what

else might have been in the claimant's mind. It had not

been necessary to delve into the other authorities cited by

counsel. The Holiday Inn case had been the only High

Court case on point and was binding authority. The

claimant had abandoned her claim for reinstatement

and therefore the court had ceased to have

jurisdiction over this matter.”

[Emphasis Added]

The Learned Chairman in this case held that the Court had no

jurisdiction to hear this matter wherein the Claimant has confirmed

on oath that she had not wanted reinstatement and that the Court

would be committing an error of law if it were to involve itself in

conjecturing what else might have been in the Claimant's mind.

This Court wholly agreed with the proposition of law as stated by

Y.A. Franklin Goonting in the above stated case.

As such, on the facts of this case, the Claimant had clearly

stated during cross-examination that he is seeking reinstatement to

Lysaght Galvanized Steel which is not a party to the proceedings and

the Industrial Court has no jurisdiction to grant the Claimant the

remedy that he is claiming as the Company that the Claimant is

seeking for reinstatement is not the relevant party to this

proceedings.

The Learned Counsel for the Claimant submit that this Court

has been seised with the necessary jurisdiction to adjudicate on the

matter herein. This Court unlike the civil courts is a court of equity

and good conscience. Therefore, in accordance with these

principles, it should be able to look into the merits of this case

simply because the Claimant should not be prejudiced for the

Company's conduct in that they had represented themselves to be

14

the employer of the Court. The Claimant had always from the date

of his dismissal been consistent, be it at the conciliation proceedings

at the Industrial Relation Department, the High Court as well as in

the Industrial Court that it was Lysaght Galvanized Steel was his

employer during his employment.

The Learned Counsel further submit that this Court has the

authority to decide that it has the jurisdiction to decide on the merits

of the matter herein of which good conscience and equity would

require. He urge this Court to look beyond the mere technicality of

which the Claimant had diligently pointed out at every stage of this

reference and make a finding based on all the facts and

circumstances surrounding the matter herein and not confine itself

to the more technical fact that Lysaght Galvanized Steel was not

named as a party to the reference herein.

On this issue, the Court is of the view that it is without any

merit and should be rejected. As I have said earlier, the Claimant is

seeking reinstatement to a Company which is not a party to the

proceedings. As such the Claimant's contention that he had always

from the date of dismissal been consistent will not carry any weight

in view of his evidence that he was seeking for reinstatement to

Lysaght Galvanized Steel Bhd. which is not a party to this dispute.

Further, the issue of reinstatement to the named Company is

not an issue of “mere technicality”. In the case of Hong Leong

Equipment Sdn. Bhd. v Liew Fook Chuan & Other Appeals

[1997] 1 CLJ 665 it was held by the Court of Appeal that

reinstatement is the primary remedy in Industrial Law. Gopal Sri

Ram JCA at page 708 states;

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“Reinstatement is the primary remedy in industrial law and

an acceptance of it or an unreasonable rejection of it by the

workman must be treated as having put an end to the

dispute.”

On the issue that the Industrial Court has to apply equity and

good conscience, this Court is bound by the rules of pleading as

stated by the Federal Court in Ranjit Kaur S. Gopal Singh v Hotel

Excelsior (M) Sdn. Bhd. [2001] 8 CLJ 629 where it was held as

follows;

“....... However, as rightly pointed out by Learned Counsel

for the respondent s.30(5) of the Act cannot be used to

override or circumvent the basic rules of pleading. The

Industrial Court, like the civil courts must confine itself to

the four corners of the pleading. This had been held to be

so by this court in Rama Chandran which are as follows:

It is trite law that a party is bound by its pleadings. The

Industrial Court must scrutinise the pleadings and identify

the issue, take evidence, hear the parties' arguments and

finally pronounce its judgment having strict regards to the

issues.”

Based on the above authority, it is clear that the phrase

“equity and good conscience” relates only to application of rules and

procedures and does not give powers to act outside the four corners

of the IRA. As such, the fact that the Claimant is claiming for

reinstatement against a company not named in the proceeding will

be giving the Court the jurisdiction to act outside the four corners of

the Act which jurisdiction the Court does not have.

16

Conclusion

From the facts of this case, the Claimant has clearly stated

that he is seeking for reinstatement to a Company which is not a

party to this proceedings and therefore the Industrial Court has no

jurisdiction to grant the Claimant the remedy that he is claiming. As

such the Claimant has abandoned his claim for reinstatement and

therefore the Court has ceased to have jurisdiction over the matter.

For these reasons, there is no necessity for this Court to inquire and

decide on the Claimant's claim of constructive dismissal.

The claim is hereby dismissed.

HANDED DOWN AND DATED 16 JANUARY 2013.

( GULAM MUHIADDEEN BIN ABDUL AZIZ ) CHAIRMAN

INDUSTRIAL COURT KUALA LUMPUR

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