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1 JT Int Tobacco CLJ - 2006 - 2 - 79 - BC02147 PDF
1 JT Int Tobacco CLJ - 2006 - 2 - 79 - BC02147 PDF
v.
For the applicant - N Sivabalah (Raymond TC Low with him); M/s Shearn
E
Delamore & Co
For the respondent - S Muhendaran (GS Kavitha with him); M/s Muhendaran
Sri
Raus Sharif J:
(a) Backwages
D
[6] It is the submission of the applicant that the award on
backwages should be quashed and remitted back to the Industrial
Court for reassessment because:
(i) the applicant was not the sole party to be blamed for the
delay;
G
(ii) the case was delayed when a new chairman took over the
case and heard the matter de novo in 2000; and
(iii) there was a further delay by the court in handing down its
decision on the matter.
H
[15] It is not in dispute that there has been a considerable delay
on the part of the Industrial Court in the completion of this case.
The case was originally fixed before Industrial Court Chairman Mr.
Tan Kim Siong. On 29 December 1998, the court fixed the matter
for hearing on 30 June 1999 and 1 July 1999. The court then I
vacated 30 June 1999 and started hearing the case on 1 July
1999. The matter was the fixed for continue hearing on the 6 and
JT International Tobacco Sdn Bhd v.
[2006] 2 CLJ Lau Thow Sin 85
[16] The next date for continued hearing was fixed for 9 and 14
October 2000. The matter was however postponed to 5 and 6
C February 2001 as the applicant’s principal witness was not
available. The hearing proceeded on 5 and 6 February 2001. The
matter was fixed for continued hearing on 27 March 2001. The
said date was however vacated by the court. The court then fixed
6 July 2001 for continued hearing. The said date was vacated as
D the respondent’s counsel was unwell.The matter was subsequently
heard on 28 September 2001 and completed on 1 October 2001.
Written submissions were filed by the parties as early as 7 May
2002. However, the learned Chairman only handed down the
award on 28 June 2003.
E
[17] Hence, it is the contention of the applicant that it should
not be punished with an excessive backwages when it is not
responsible for the delays. The respondent on the other hand
contended that the question of quantum of backwages is very
much at the discretion of the Industrial Court to fix in line with
F
s. 30 of the Act.
Seng in Nestle Food Store Storage (Sabah) Sdn. Bhd. v. Terrence Tan A
[2002] 1 ILR 280. The learned Chairman in that case stated as
follows:
The court is of the opinion that the basic approach that a
workman held to have been dismissed without just cause should B
be awarded backwages subject to a maximum of 24 months is
long established and that there will be undue violence to the
existing process of awarding and assessing backwages were some
other formula to be applied save in exceptional cases. More
importantly, however, the court is of the view that subject to
some observations and consequential modifications set out C
hereinafter, it represents a just and equitable formula for awarding
backwages. The court thinks that the formula for awarding
backwages provides a workable basis for assessing and awarding
a workman’s backwages in a sensible and fair way taking into
consideration various relevant factors inter alia, his loss of wages, D
the duty to mitigate and the onus and burden of proof.
[23] To me, the present cases is one of the rare case where
reinstatement should be refused. In Kumpulan Perangsang Selangor
v. Zaid bin Hj. Mohd Noh [1997] 2 CLJ 11 the Supreme Court
expounded several principles relating to the remedy of
F
reinstatement and elaborated on the necessary considerations
ought to be take into account by the Industrial Court in deciding
whether an order of reinstatement should be issued. At p. 33 the
Supreme Court held as follows:
G Having decided that this court has the jurisdiction and the power
to grant relief to the respondent, all that remained was to
determine the nature of the relief that ought to be granted. The
principles that govern the relief that is to be awarded in cases of
this nature are sufficiently set out in Malhotra’s The Law of
Industrial Disputes (4th Ed) Vol 2 p 942:
H
From the decided cases, no hard and fast rule of universal
application is discernible as to which circumstances would,
in a given case, constitute an exception to the general rule
of reinstatement. The Labour Appellate Tribunal in
I Buckingham and Carnatic Mills’ case [1951] 2 LLJ 314
stated that ‘the past record of the employee, the nature of
his alleged present lapse and the ground on which the order
88 Current Law Journal [2006] 2 CLJ
[24] In the above case, the Supreme Court took into account
H
the fact that the dismissed employee held a high ranking position
and ruled that reinstatement was not an appropriate remedy.
Instead the court granted compensation in lieu of reinstatement to
the employee.
[25] Similarly, in Amanah Butler (M) Sdn Bhd v. Yike Chee Wah I
[1997] 2 CLJ 79, the Court of Appeal reiterated the same
principle and made the following observations:
JT International Tobacco Sdn Bhd v.
[2006] 2 CLJ Lau Thow Sin 89
I
90 Current Law Journal [2006] 2 CLJ