RECENTLY the Court of Appeal ruled that it is mandatory to refer an employee’s dismissal complaint to the industrial court if the Industrial Relations director-general (DGIR) cannot resolve the matter.
Prior to the amendments to the Industrial Relations Act 1967 (IRA 1967), the DGIR had a duty to refer wrongful dismissal complaints to the Human Resource Minister. The Minister then had the discretion to choose between two courses of action: either referring the dispute to the Industrial Court or dismissing the claim in its entirety.
The Industrial Relations (Amendment) Act 2020 (Amendment) which came into force on Jan 1, 2021 saw the removal of the Minister from this equation. Where the wrongful dismissal complaint is unable to be resolved through conciliation, the DGIR will then act as the conduit to refer the dispute to the Industrial Court, effectively replacing the role of the Minister.
The relevant section in the IRA 1967 is reproduced as follows:
(Before the 2020 Amendment)
Section 20
(2) Upon receipt of the representations the Director-General shall take such steps as he may consider necessary or expedient so that an expeditious settlement thereof is arrived at; where the Director-General is satisfied that there is no likelihood of the representations being settled, he shall notify the Minister accordingly.
(3) Upon receiving the notification of the Director-General under subsection (2), the Minister may, if he thinks fit, refer the representations to the Court for an award.
(After the 2020 Amendment)
Section 20
(2) Upon receipt of the representations the Director-General shall take such steps as he may consider necessary or expedient so that an expeditious settlement thereof is arrived at.
(3) Where the Director-General is satisfied that there is no likelihood of the representations being settled under subsection (2), the Director-General shall refer the representations to the Court for an award.
A question then arises: Did the Amendment vest upon the DGIR a discretionary power to refer certain representations to the Industrial Court or did the Amendment oblige upon the DGIR an administrative duty to bring all such cases to the Industrial Court?
The Court of Appeal may have answered this question in its recent unanimous decision to reverse the ruling of the High Court which had dismissed a judicial review application of a decision by the DGIR in closing a former employee’s file without referring it to the Industrial Court.
In delivering the landmark decision, the appellant court emphasised that the IRA 1967 being a socially beneficial legislation must be interpreted broadly.
Upon a liberal interpretation of the IRA 1967, it is only a matter of time before the Courts rule that the Amendment has effectively phased out any sort of filtering mechanisms of wrongful dismissal complaints, paving way for an automatic registration of such disputes with the Industrial Court.
A prominent appellate court judge once said that “the legislature’s paramount concern in passing the Industrial Relations Act is to ensure speedy disposal of industrial disputes”.
Many have argued that having an intermediary to screen out unmeritorious applications only adds to the delay in the eventual referral of a matter to the Industrial Court.
But perhaps this very screening process is precisely why the Industrial Court has not been inundated with referral applications.
Without a filter mechanism in place, a flood of potentially frivolous or vexatious complaints in the Industry Court may not bring about the expediency and efficacy that the IRA 1967 had once promised.
But amid the uncertainties, it becomes clear that with the demise of the ministerial discretion in referrals, the Minister no longer has to be concerned with accusations of bias in the referral process, and that the Court is relieved from handling any judicial review applications related to this power. – March 4, 2024
Leonard Yeoh is a partner together with Goh Jing Xuan at law firm Tay & Partners.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
Main pic credit: Industrial Court of Malaysia Facebook
