Continuous Assessment

R Rama Chandran v The Industrial

Court of Malaysia & Anor [1997]
Lim Jia Yan B1901796
Ng Seng Yoon B0700225
Lum Wan Yeng B2100093
Elanselvan A/L Perumal B2001665
 Court Setting

APPELLANT RESPONDENT JUDGES

R Rama Chandran 1st Respondent: Industrial Court Eusoff Chin Chief Justice
2nd Respondent: Malaysian Co- Edgar Joseph JR FCJ
operative Consumer Society Ltd Wan Yahya FCJJ
 The Appellant discovered various abuses of 1st
1 Respondent's fund and authority linked to the
chairman of 2nd Respondent.

Chronological 2
With various attempts to seek explanations for
the identified malpractices, the Appellant was
not in the liking of his superiors.
Events
The Appellant was dismissed by the 2nd
3 Respondent after 2 years of employment on the
grounds that the 2nd Respondent was not doing
financially and it was in a retrenchment
exercise.
 Wrongfully dismissed due to "bias" and misconduct from the 2nd Respondent, the Appellant
4 sought a remedy to the Director-General of Industrial Relations and was directed to
Industrial Court. The Appellant demanded specific performance and damages as follow:

EMPLOYMENT REINSTATEMENT OF ENTITLED TO COMPENSATION FOR:

APPELLANT TO HIS FORMER POST - Loss of earnings
- Loss of substantial gratuity
- Higher rates of the EPF
- Deprivation of Housing Loan
- Other benefits
 Industrial Court ruled that the Appellant's case as
the retrenchment exercise was carried out with a
5 just cause. Also, the court claimed the employee
had failed to specify his allegations in the more
precise form in the statement of the case.
Chronological
Events 6 The Appellant made a representation of his appeal
to the High Court and was turned down.

The Appellant made another representation of his

7 appeal to the Federal Court.
 8 Through a Judicial Review, the Federal Court allowed the appeal as there was a serious error of fact & law
(Lacuna) committed by the Industrial Court in passing the award to the 2nd Respondent as follow:

[a] [c] [e]

The element of "bias", being the main issue of the
The ouster clause in Section 33B of the Industrial
case, raised by the Appellant, was neglected by Section 30 (3) of the Industrial Relations Act
Relations Act 1967 states, the Industrial Court
the Industrial Court. 1967 requires awards to be effected within
Award is final and shall not be challenged,
The court should have exercised a certiorari 30days.
appealed against, reviewed, quashed, or called
proceeding approach to ascertain the issue of the However, the appellant has been unemployed for
into question by any court, is not absolute.
case and the intention of the disputed parties, not 7 years from the date of dismissal.
Even when the statute declared an award was
on technical and narrow grounds of the case. Not to hinder the works of Justice, the Federal
final, the Federal Court could still intervene.
Industrial Court could not disregard the Court retried the case instead of remitting it back
Federal Court serves as the absolute jurisdiction
appellant's pleadings and treat them as mere to the Industrial Court to shorten the time and
to exercise judicial review in presence of
pedantry or formalism. In doing so, the court may cost incurred.
procedural impropriety, illegality, and irrationality
lose sight of the issues, admit evidence Injustice from industrial disputes must be
in passing judgment.
irrelevant to the issues or reject evidence relevant speedily resolved in the national interests
to the issues and come to the wrong conclusion.

[b]
Employment Termination Letter, dated
20 April 1988, was Not Genuine and the
purported termination was Mala Fide.
Such letter presented prima facie
(uncontradicted affidavit) evidence for
the wrongful dismissal of the Appellant.
[d]
The Federal Court ruled that the appellant was
wrongfully dismissed.
The Award of Industrial Court was quashed and
superceded by Consequential Relief
Compensation of RM489,800 to be paid by 2nd
Respondent in favor to the appellant based on
the appellant's loss of employment ability instead
of loss of employment position.
 Section 20 of the Industrial
Relations Act 1967
An employee who feels that he has been Elements of Wrongful Dismissal:
unfairly dismissed without just cause or Retaliation

Issue 1: excuse by his employer.

The employee may lodge a representation
The Appellant discovered various abuses of
to the Director-General of Industrial
Was Appellant Relations within 60 days from the date of
1st Respondent's fund and authority linked
to the chairman of 2nd Respondent.
his termination.
Wrongfully Dismissed? Failing to settle amicably, the matter will be
The Appellant was dismissed by the 2nd
Respondent shortly after the discovery of
attended by the Ministry of Human
criminal liabilities related to the chairman
Resources.
of the 2nd Respondent.
If necessary, the representation will be
directed to the Industrial Court for
determination.

[A] Service Unions & Ors v Minister
for the Civil Service [1985]
In this case, it permits the courts to
scrutinize such decisions not only for
process, but also for substance.
Issue 2:
Was the Ouster Clause, under Section
33B of the Industrial Relations Act [B] Judicial Review by Judiciary
1967, effective against Judicial
on Judiciary
Review by the Federal Court?
The Industrial Court, an inferior court, is not
Executive.
Judicial Review on the Industrial Court
(Judiciary) is not trespassing Executive.
Judicial Review on Industrial Court is not a
violation of Doctrine of SOP.
[C] Judicial Review Initiative
Judicial Review can be initiated by following
"Lacunas" erred by the Judiciary:
Illegality
Decision / Conduct of the Industrial Court is ultra
vires; or
Beyond the limits of the Industrial Relations Act
1967 and/or the law
Irrationality
The Principle of Wednesbury was introduced in
Associated Provincial Picture Houses Ltd v
Wednesbury Corporation [1947] 2 All ER 680
The Industrial Court's decision is so outrageous
(Wednesbury) that no sensible person who has
applied his mind to the question to be decided
could have arrived at the same decision.
Procedural Impropriety
The Industrial Court, in reaching its decision,
fails to observe the mandatory procedures
and/or the principles of natural justice.
[D] In presence of Ultra Vires / Lacunas, the Ouster
Clause is Not Effective to Prevent Judicial Review by
superior courts including the High Court, Court of
Appeal, and Federal Court

Issue 3:
Is the Federal Court, within its legal
capacity, to overrule or supercede
judgment of the Industrial Court?
[A] In presence of Illegality, Irrationality
and Procedural Impropriety of the court
proceeding and ruling, the Federal Court,
the highest court of Malaysia, which is only
bound by its previous decisions, has legal
capacity, via Judicial Review, either to
remit the case back to the respective court
for retrial or to retry the case immediately
by the Federal Court.
[B] By Convention, Higher Courts can remit
the case back to the respective court for
retrial.
[C] Under certain circumstances, Higher
Court may try the case after Judicial
Review to reduce the time and legal costs
involved.
[D] In the case of R RAMA CHANDRAN v THE
INDUSTRIAL COURT OF MALAYSIA & ANOR [1997],
the appellant has been prevented from access to
Justice for 7 years.
To remit the case back to the Industrial Court, this
will certainly involve continued and prolonged
litigation which will further harm and injustice to the
claimant.
Were the appellant to die, his claim will abate as was
held in Thien Tham Sang v United States Army
Medical Research Unit & Anor [1983] 1 MLJ 97.
This will lead to the appellant's family suffer from
grave injustice.
The court, in Bharat Singh v New Delhi Tuberculosis
Centre [1986], highlighted that the employers can
certainly afford to employ a number of lawyers and
prolong litigation and thereby tiring out the workers.
The poor workman can ill afford a lawyer or prolong
litigation because this will lead to immense
hardship, suffering, and exorbitant expenses.
Thus, in order not to prolong the dispute and
expenses involved, Rama's case was retried in the
Federal Court instead of remitting back to the
Industrial Court.

Outcome of the case &
Reason of the case
The Appellant, being ascertained of the victim to the
wrongful dismissal in this case, has been deprived of
justice for 7 years since the Appellant was
unemployed through the 7 years period. Therefore, an
immediate retrial is required to uphold the spirit of the
law and must be speedily resolved in the national
interests.
[1] THE FEDERAL COURT RETRIED THE CASE AFTER
JUDICIAL REVIEW
Instead of remitting the case back to Industrial Court for retrial, the
Federal Court cut short the time and process and held the retrial. Besides
having the legal capacity of Judicial Review to overrule the Ouster Clause
stated under Section 33B of the Industrial Relations Act 1967, the
Federal Court, being the highest ruling court in Malaysia, also has the
legal capacity to ask for retrial on cases concluded by the lower courts.
SUNGAI WANGI ESTATE V UNI [1975] 1
MLJ 136 AND MINISTER OF LABOUR,
MALAYSIA V NATIONAL UNION OF
ITAN TEK SENG V SURUHANJAYA
JOURNALISTS, MALAYSIA [1991]
PERKHIDMATAN PENDIDIKAN &
ANOR [1996]
This is to ensure fair justice is served
equally to everyone as constitutionalized
in Art 5 (1) of the Federal Constitution -- The court clarified that the right to life
Liberty of a Person and Right to Life, where includes the right to be engaged in
no person shall be deprived of his life or lawful and gainful employment.
personal liberty save in accordance with
the law.
 [2] THE AWARD OF INDUSTRIAL COURT WAS QUASHED
DUE TO THE FOLLOWING REASONS:

The court has neglected The Award granted the

Outcome of the case & the element of "bias" and court was Wednesbury,
"misconduct" raised by the containing elements of
Reason of the case appellant in his dismissal Illegality and Irrationality
of employment. in its judgment.

Therefore, it was suggested New Award has to be

given in consideration of the detriments suffered by
the Appellant through the delay of justice for 7 years.

The Award given was The award was, therefore,

derived based on misguided quashed instead of reversing
question fact, resulting in the back the decision of the
misguided question of law. Industrial Court.
 [3] CONSEQUENTIAL RELIEF COMPENSATION (FRESH AWARD)
OF FEDERAL COURT SUPERCEDED THE PREVIOUS AWARD
This can be seen in the case of Navinchandra Shakerchand Shah v Ahmedabad Co-operative
Department Stores Ltd [1979], where the court defined Consequential Relief as an ancillary to the
main relief that a quasi-judicial tribunal has either failed to exercise the jurisdiction vested in it
or has acted in excess of it and that order has caused some harm to the petitioner and he seeks

Outcome of the case &

relief.

The court considered the following facts before passing the Award:
Reason of the case
It is what an applicant is generally seeking when
bringing an action in court:
They seek an order that something will happen --
payment of damages, an injunction being granted,
or an award of support.
They have brought the action in an effort to bring
about a certain consequence.
Thus, this permitted the court to scrutinize such
decisions not only for process but also for
substance.
The appellant was unemployed for 7 years.
The appellant had lost touch with his work after 7 years of unemployment.
Reinstatement of employment is not a good remedy due to foreseeable mental distress and
suffering anticipated from the 2nd Respondent's workplace.
The appropriate remedy should be based on loss of employment ability instead of loss of
employment position.
Award of RM489,800, in favor to the Appellant, was computed with the support of the
following Malaysian Judicial Precedents:
Dunlop Estate Bhd v All Malayan Estates Staff Union, Re [1980] 1 MLJ 243
Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 2 MLJ 129
Hotel Malaya Sdn Bhd & Anor v National Union of Hotel Bar and Restaurant Workers
[1982] 2 MLJ 237
Kesatuan Pekerja-Pekerja Perusahaan Logam & Anor v Honourable Minister of Labour,
Malaysia [1991] 3 CLJ 2164
Minister of Labour, Malaysia v National Union of Journalists, Malaysia [1991] 1 MLJ 24
Pacific Centre Sdn Bhd v United Engineers (M) Bhd [1984] 2 MLJ 143
Sungai Wangi Estate v Uni [1975] 1 MLJ 136
Thien Tham Sang v United States Army Research Unit & Anor [1983] 1 MLJ 97
Zainal Abidin v Century Hotel [1982] 1 MLJ 260

JPs applied by Court &
Why JPs are applied
1.JUDICIARY PRECEDENT - INTRODUCTION
& DEFINITION OF PRINCIPLES, DOCTRINES,
AND TESTS
[A] Principle of Wednesbury
This can be seen in the case of Associated Provincial Picture Houses Ltd
v Wednesbury Corporation [1947] 2 All ER 680, where the court introduced
and defined Principles of Wednesbury.
Principles of Wednesbury is an ultra vires/lacuna created through the
irrationality of the decision passed by a court.
Principles, Doctrines, and Tests involve a set of pre-requisites to
establish or ascertain an element, be it offence or defense in the eyes
of the law.

JPs applied by Court &
Why JPs are applied
2. JUDICIAL PRECEDENT - RATIO DECIDENDI
Ratio Decidendi refers to the rationale of the decision made on every
case.
[A] In Thien Tham Sang v United States Army Medical Research Unit &
Anor [1983] 1 MLJ 97, the court highlighted the death of an appellant may
severely reduce his and his family's rightful claim result from the delay of
the court proceedings. This creates grave injustice to the appellant and
his family.
The above Judicial Precedent inspired the Federal Court to shorten
the court proceeding process and attend the retrial directly to correct
the injustice and pass judgment, for the sake of the Appellant and
National Legal Practice.
[B] In Bharat Singh v New Delhi Tuberculosis Centre [1986], it expressed
that the employer's ability to employ multiple lawyers and prolong
litigation to the employer's favour.
However, it will mentally and financially drain out an employee in the
litigating process. Employees, who are financially restricted will be
the sufferer of the court proceeding. Many persons chose to forgo
their rights in view of the exorbitant expenses incurred. As such,
justice will not serve equally by prolonging court proceedings
unnecessarily.
 [A] Sungai Wangi Estate v Uni [1975] 1 MLJ 136
[B] Minister of Labour, Malaysia v National Union of Journalists, Malaysia
[1991]
Through the above-mentioned Judicial Precedents, the court
addressed the jurisdiction of the Federal Court.
Federal Court, being the highest ruling court in Malaysia, has the
JPs applied by Court & capacity of:
Judicial Review
Why JPs are applied Remit the case back to the previous court for retrial in presence
of Illegality, Irrationality, and/or Procedural Impropriety through
the court proceeding process; thus, the respective court shall
3. JUDICIAL PRECEDENT - reverse its decision before retrial
COURT'S JURISDICTION Retry the case at its current level (Overrule)
Quash the decision made by the previous court
Pass new judgment to the case
The Federal Court sits at the top authority of vertical binding
precedent, not bound by any lower court decision other than
precedents made by its predecessor.
 [A] Malaysia Constitution
--Art.5 of the Federal Constitution encompasses Liberty of Person, where it
specifies the validity of the right of life of a person.
In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996], the
court clarified that the right to life includes the right to be engaged in lawful
and gainful employment.
In R RAMA CHANDRAN v THE INDUSTRIAL COURT OF MALAYSIA & ANOR
JPs applied by Court & [1997], the appellant was evidently deprived of such right without meritable
grounds by the 2nd Respondent the moment he was wrongfully dismissed.
Why JPs are applied Such dismissal contravenes Malaysia Constitution; therefore, it is unlawful in
Malaysia.

4. JUDICIAL PRECEDENT - [B] Consequential Relief Compensation

INTERPRETATION OF LAW
In Navinchandra Shakerchand Shah v Ahmedabad Co-operative Department
Stores Ltd [1979], the court defined Consequential Relief Compensation and
its purpose. It can be regarded as necessary support to the main relief when:
A quasi-judicial tribunal has failed to exercise the jurisdiction vested in it
A quasi-judicial tribunal has acted in excess of it
The order, from such a quasi-judicial tribunal, has caused some harm to
the petitioner
The innocent party seeks relief
 [A] Dunlop Estate Bhd v All Malayan Estates Staff Union, Re [1980] 1 MLJ 243
[B] Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 2 MLJ 129
[C] Hotel Malaya Sdn Bhd & Anor v National Union of Hotel Bar and Restaurant
Workers [1982] 2 MLJ 237
JPs applied by Court & [D] Kesatuan Pekerja-Pekerja Perusahaan Logam & Anor v Honourable Minister of
Labour, Malaysia [1991] 3 CLJ 2164
Why JPs are applied [E] Minister of Labour, Malaysia v National Union of Journalists, Malaysia [1991] 1
MLJ 24
[F] Pacific Centre Sdn Bhd v United Engineers (M) Bhd [1984] 2 MLJ 143
5. JUDICIAL PRECEDENT -
[G] Sungai Wangi Estate v Uni [1975] 1 MLJ 136
AWARD OF DAMAGES [H] Thien Tham Sang v United States Army Research Unit & Anor [1983] 1 MLJ 97
[I] Zainal Abidin v Century Hotel [1982] 1 MLJ 260
The above are the Judicial Precedents referred and followed in computing
Consequential Relief Compensation to the Appellant.
 [A] Petroliam National Bhd v Nik Ramli Nik Hassan [2004] 2 MLJ 288
The court held that the verdict was given on R RAMA CHANDRAN v THE
INDUSTRIAL COURT OF MALAYSIA & ANOR [1997] may not be applicable to
every case with similar material facts as the ruling relied primarily on the
factual matrix and/or the legal modalities of the case.
There were no elements of procedural impropriety, illegality, or irrationality
throughout court proceedings.
The industrial court has conducted a comprehensive review of all facts and
pieces of evidence, both oral and documentary, presented by the disputing
parties.
Cases that were Also, the Award passed has indicated a sound analysis of the law as to what
constitutes constructive dismissal by an employer.
distinguished & Why Therefore, a reviewing judge should exercise restraint instead of intervening
in the finding in this case.
EXCEPTION
[B] Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1
Since the Federal Court in a landmark decision has held that the decision of
inferior tribunal may be reviewed on the grounds of ‘illegality’, ‘irrationality’
and possibly ‘proportionality’ which permits the courts to scrutinize the
decision for both process and substance.
The findings of facts by the inferior tribunal which are based on the
credibility of witnesses should not be reviewed.
The case was concluded that pleadings in the Industrial court are as
important as in the civil courts, and section 30 (5) of the Industrial Relations
Act 1967 cannot override or circumvent the basic rules of pleading.
 [A] Swedish Motor Assemblies Sdn Bhd v Haji Mohd Ison bin Baba [1998] 2 MLJ
372
The Court of Appeal set aside the findings from the Industrial Court’s
decision, which was tainted by Wednesbury unreasonableness and remitted
to the Industrial Court to determine the appropriate remedy to be awarded to
Cases that were the respondent.

distinguished & Why [B] Vadiveloo Munisamy v General Type Retreaders Sdn Bhd [1999] 7 CLJ 596
The High Court remitted back the case to the Industrial Court to decide on
RE-ADJUDICATION IN THE the appropriate remedy (reinstatement or compensation in lieu of
reinstatement) for the dismissal without just cause or excuse.
INDUSTRIAL COURT
Conclusion: These two cases have presented an exceptional outcome where the
superior courts may now decide on the merits of a case rather than merely
quash an impugned decision of an inferior tribunal.
 Did the court adhere to stare decisis in the
interest of certainty and finality of the law?

The doctrine of Stare Decisis very much binds from Court of Appeal down to
Magistrates court.
These courts are vertically and horizontally bound by the Judicial Predecent
laid by a higher court or court of the same level.
As the advancement of society, the older Judicial Precedents may become
obsolete and insufficient to serve justice adequately to the society today.
If strictly bound by these old Judicial Precedents, the law reform may not be
quick enough to meet the pace of society improvement today.
 Did the court adhere to stare decisis in the
interest of certainty and finality of the law?
In R RAMA CHANDRAN v THE INDUSTRIAL COURT OF MALAYSIA &
Having said that, Federal Court is the highest
ANOR [1997]
court and final stage of the appellate court in
The Federal Court superceded the Ouster Clause of section 33B
Malaysia.
of the Industrial Relations Act 1967 and judicially reviewed the
It is bound only vertically by its previous
case.
precedents.
Instead of remitting the case back to the original court for the
When the rigidity of the law hinders the
retrial, the federal court retried the case without further delay as
delivery of justice to the innocent party,
the innocent party has been deprived of justice for too long. This
equity comes to mitigate the hindrance.
landmark case became a Federal Court Judicial Precedent,
He who comes to equity must come with
binding subsequent rulings of the same court or lower.
hands in clean
The establishment of a new ruling may also void previous judicial
Equity should be used as a defense instead
precedent with similar material facts.
of an opportunity to rip unfair benefit or
Equity is imperative to allow the evolution of law through law
advantage from another party
reform in accordance with the improvement of society.