COURT OF APPEAL, MALAYSIA
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www.ipsofactoJ.com/appeal/index.htm [2000] Part 2 Case 11 [CAM] |
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COURT OF APPEAL, MALAYSIA |
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Coram N.H. CHAN JCA |
National Union of Plantation Workers - vs - Kumpulan Jerai Sdn Bhd |
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ABU MANSOR ALI JCA HAIDAR MOHD NOOR JCA |
11 DECEMBER 1999 |
Judgment
Haidar Mohd Noor, JCA
(delivering the judgment of the court)
Pursuant to a reference by the then Minister of Labour dated December 22, 1988 under s 26(2) of the Industrial Relations Act 1967 concerning a trade dispute between Kumpulan Jerai Sdn Bhd, Simpang Rengam ("KJSB") and the National Union of Plantation Workers ("NUPW") in connection with the dismissal of NUPW's members, Ali Gula Mohammad, Kamin Nasimin, Athinaidu Appalasamy and Muhamad Abu Bakar ("the claimants") on October 16, 1988, the Industrial Court on June 17, 1993 vide award No 180 of 1993 made the following orders -
That the four dismissed claimants be reinstated as tappers from the date of dismissal, October 16, 1988;
The above four claimants be paid their backwages, allowances, increments and all other entitlements from the date of the dismissal to the date of reinstatement;
The four claimants be reinstated within one month of the date of this award;
That all backwages, allowances, increments ordered be paid within one month of the date of the award.
The four claimants were employees of KJSB as well as officials of the estate union committee of NUPW.
Being dissatisfied with the order of the Industrial Court, KJSB on July 28, 1993 filed an application for leave for an order of certiorari pursuant to Order 53 of the Rules of the High Court 1980 and leave was granted by the High Court on September 29, 1993. On October 4, 1993 KJSB filed the notice of motion for an order of certiorari to remove into the High Court for the purpose of quashing the order of the Industrial Court of June 17, 1993 vide award No 180 of 1993. The High Court on August 15, 1995 made an order in terms of the application of KJSB with costs. Hence the appeal by NUPW before us.
We heard the appeal by NUPW against the order dated August 15, 1995 by the High Court on March 23, 1999. We allowed the appeal and ordered that the award of the Industrial Court be restored. We now give our reasons.
BACKGROUND
KJSB is a member of the Malaysian Agricultural Producers Association (MAPA) and the first respondent in Industrial Court Award No 111/86 in Persatuan Pengeluar-Pengeluar Pertanian Tanah Melayu v Kesatuan Kebangsaan Pekerja-Pekerja Ladang [1986] ILR 586 (award No 111/86).
Following acts of alleged misconduct, the four claimants were individually issued identical letters dated September 15, 1988 suspending them from work pending the two charges preferred therein to be heard on September 20, 1988. The hearing of the two charges against them was heard on September 20, 21, 22 and 23, 1988 by the inquiry panel set up by KJSB and they were found guilty on the first charge only.
It seemed that the alleged misconduct of the four claimants started with the death of a retired female tapper, Pangaroo Kuppusamy on the estate of KJSB at about 7.30 p.m. on September 13, 1988. It was related to unpaid leave for the Indian workers to attend the funeral. The claimants were found to have incited and instigated workers of KJSB on September 13, 1988 from going to work on September 14, 1988. As a result the four claimants were recommended to be downgraded from tappers to general workers by the inquiry panel.
By letters dated September 29, 1988, the four claimants were individually informed -
they had been found guilty of misconduct;
by way of punishment, they were downgraded to general workers with effect from September 30, 1988;
they were to report for work on October 1, 1988; and
they may appeal against the downgrading decision in accordance with the redressal procedure as provided for in award No 111/86. The four claimants were not satisfied with the decision and by letter dated September 29, 1988, jointly informed KJSB accordingly of their dissatisfaction and requested to meet KJSB on September 30, 1988 at 3.30 p.m. to resolve the matter. By letter dated October 1, 1988 KJSB informed each of the claimants that the meeting they had requested could not be accommodated but agreed for it to take place on October 3, 1988 at 3.30 p.m.
The meeting scheduled on October 3, 1988 did not take place as none of the claimants turned up.
By letter dated September 30, 1988, the four claimants jointly applied for leave until resolution of the dispute over their downgrading by their union branch (Kluang).
By letter dated October 1, 1988, KJSB immediately informed the four claimants individually that their leave application was not approved for failure to comply with the prescribed procedure for annual leave.
None of the four claimants reported for work on October 1, 1988 as required.
Subsequently, the four claimants also individually submitted leave application forms dated October 1, 1988 for three days' leave commencing from October 1 to October 3, 1988. KJSB only received these leave application forms on October 1, 1988 at 4.35 p.m.. The four claimants were individually informed that their applications were also not approved when their applications were marked "not approved" on the said forms. The four claimants did not report for work as required on October 2, 3, 4, 5 and 6, 1988.
By letter dated October 7, 1988 KJSB wrote to each of the four claimants stating -
their absence from work without prior permission after being informed of the rejection of their leave amounted to serious misconduct for which disciplinary action could be taken;
they were reminded to report for work on October 8, 1988;
they were warned that if they repeat their failure to report for work again, KJSB would consider that they were no longer interested in continuing with their employment and that they will be considered to have abandoned their employment; and
they have to take up their grievance in accordance with award No 111/86.
Upon receipt of KJBS's letter dated October 7, 1988, the four claimants again jointly applied for leave from October 7, 1988 to such time as their case was resolved by their union branch, Kluang. This application for leave was rejected by KJSB by letter dated October 8, 1988 addressed to the individual claimants. KJSB in the same letter warned the claimants that if they failed to report for work on October 8,1988 without prior permission, KJSB would consider them as having breached their contracts of service. The four claimants did not report for work on October 8, 1988 or at any time thereafter.
By letter dated October 16, 1988 addressed to the claimants individually, they were informed that by virtue of their absence from work and pursuant to s 15(2) of the Employment Act 1955, they have ceased to be employees of KJSB with effect from October 16, 1988.
The dispute between KJSB and NUPW over the dismissal of the four claimants with effect from October 16, 1988 was referred to the Industrial Court (second respondent in the court below) for adjudication by the Minister pursuant to s 26(2) of the Industrial Relations Act 1967 by way of a letter dated December 29, 1988. The reference by the Minister was expressly in respect of dismissal without just cause or excuse and was not in respect of the downgrading of the four claimants from tappers to general workers with effect from October 1, 1988.
JURISDICTIONAL ERROR OR ERRORS OF LAW
According to the learned Judge, the jurisdictional error or errors of law committed by the Industrial Court, as contended by KJSB, may be summarised as follows -
The second respondent (Industrial Court) went into issues which were not the subject matter of the Minister's reference;
Erroneous attribution of bias and prejudice to the Inquiry Panel;
Erroneous finding that KJSB had waived or condoned the four claimants' absence;
Erroneous conclusion that KJSB cannot invoke s 15(2) of the Employment Act 1955; and
Erroneous reinstatement of the four claimants as tappers.
Having scrutinised the judgments of the Industrial Court and the learned Judge, we invited counsel to address us on the issue of the erroneous finding by the Industrial Court that KJSB had waived or condoned the four claimants' absence. This issue, in our view, would determine the appeal before us.
Before proceeding to consider this issue we should deal with the contention of counsel for KJSB that this issue should not be considered by us on the ground that it was not pleaded in the statement of case (p 314 of the appeal record). He cited Amanah Butler (M) Sdn Bhd v Yike Chee Wah [1997] 2 AMR 1653 in support thereof. This court in Amanah Butler said at p 1667-
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First, we agree with Lobo of counsel for the respondent that the fate of the appellant's case must ex necessitae rei, depend upon its pleadings before the Industrial Court indeed, the proposition relied upon by him is concluded by high authority. |
The court proceeded at p 1667 to quote a passage from the judgment of Mohd Eusoff Chin, CJ (Malaysia), who formed the majority, in Aetna Chandran v The Industrial Court of Malaysia [1997] 1 AMR 433 at p 457, thus -
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It is trite law that a party is bound by its pleading. The Industrial Court must scrutinise the pleadings and identify the issues, take evidence, hear the parties' arguments and finally pronounce its judgment having strict regard to the issues. It is true that the Industrial Court is not bound by all the technicalities of a civil court (s 30 of the Industrial Relations Act 1967) but it must follow the same general pattern. The object of pleadings is to determine what are the issues and to narrow the area of conflict. The Industrial Court cannot ignore the pleadings and treat them as mere pedantry or formalism, because if it does so, it may lose sight of the issues, admit evidence irrelevant to the issues or reject evidence relevant to the issues and come to the wrong conclusion. The Industrial Court must at all times keep itself alert to the issues and attend to matters it is bound to consider. |
Before the Industrial Court, NUPW by way of paragraph 4 of the statement of case pleaded that the dismissal was without any just cause or excuse. The detailed facts may not have been pleaded but it is a matter of presenting the evidence to support the ground to be relied on by the party.
In any event, from the appeal record, the issue of condonation was fully placed and argued before the Industrial Court. The Industrial Court therefore properly considered this issue in its judgment and found favour with NUPW. The same issue was again fully argued before the High Court and the learned Judge considered this issue at length in his judgment but, however, did not agree with the finding of the Industrial Court and will advert to this issue later.
In our view, even if this issue of condonation was not specifically pleaded, the fact that this issue was fully argued both in the Industrial Court and the High Court without any objection, would be too late in the day for KJSB's counsel to contend that this issue be precluded from being relied upon by NUPW as a ground. In this respect the Supreme Court in Superintendent of Lands & Mines (4th Div) v Hamit Matusin [1994] 3 AMR 1882 in dealing with the issue of certain defences were not pleaded and ought to be disregarded under Order 18 r 7(1) of the Rules of the High Court 1980 but not objected to by the plaintiffs, held -
The underlying well known rationale for requiring material facts to be pleaded is to prevent the opposing party from being taken by surprise by evidence which departs from pleaded material facts. However, when evidence represented departure from the pleadings, it should be objected to when and where it was adduced, and it would be too late when it was only objected to later on, as in the final submission at the close of evidence in the instant appeal. Otherwise in the event of such an objection being accepted by the court, the party adducing such evidence may face the risk of being denied leave to amend his pleadings at that stage.
Moreover, in the instant appeal evidence bearing on the two alleged defences was not such a radical departure but a mere development of what had been alleged by the defendants. Therefore, although the two alleged defences were material facts which ought to be pleaded, such a non-radical departure was waived or inferentially consented to when the evidence was adduced without objection by the plaintiffs.
In our view, Amanah Butler and Rama Chandran can therefore be distinguished with the present case and following Superintendent of Lands & Surveys (4th Div), the contention of counsel for KJSB could not be accepted by us as the issue, as stated earlier, was fully canvassed and argued both in the Industrial Court and the High Court by both parties without any objection. In fact the issue of condonation was put to the manager of KJSB by way of cross-examination though referred to as waiver without any objection (p 393 of the appeal record).
So much for the procedural issue. We next have to consider whether there was evidence to support the condonation or what is often referred to as "waiver". The doctrine of condonation has long been established in India. Malaysia, New Zealand, Canada, South Africa, Australia and Hong Kong (see the article on Condonation as Waiver of The Employer's Right to Punish Misconduct by Dr Abdul Majid in [1996] 2 MLJ at p xvii). In this respect, Neal J in The Manager Scudai Estate, Johore Bahru v Narayanan [1960] 26 MLJ 162 in dealing with the issue of dismissal by a master of the servant's misconduct, held that a master, with full knowledge of the servant's misconduct, electing to continue him in his service, cannot subsequently dismiss him for the offence which he had by his warning and subsequent employment condoned.
We agree to the principle of condonation as a waiver of the employer's right to punish for misconduct.
The Industrial Court in its judgment at pp 343-344 of the appeal record after having considered the evidence on the issue of waiver came to a finding as follows at p 344 thereof-
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This Court finds as a fact the Estate Manager had waived the Claimants' absence from 1.10.88-15.10.88 as stated by him in his sworn testimony. In the circumstances the letter of termination becomes irrelevant and invalid as their absence had been waived and condoned from October 1, 1988 to 0ctober 15, 1988. |
The learned Judge, however, was of the view that the Industrial Court had arrived at its finding based on an assumption which was unfounded. This is what the learned Judge said in his judgment (p 20 of the appeal record)-
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The second respondent had indeed arrived at its conclusion not based on testimony of the witness but merely on an assumption which was unfounded. The second respondent further failed to take into account the applicant's letter to the four workers dated October 7, 1988 and its rejection of their application for leave vide its letter dated October 8, 1988. The evidence before the court is that, if at all there was waiver or condonation, the Applicant had only waived or condoned their absence from October 1, 1988 to October 7, 1988. Their absence from 8 October 1988 was not waived or condoned and there was no evidence, oral or documentary, before the Second Respondent that their absence during this period was waived or condoned. [emphasis added] |
The learned Judge seemed to have lost track of the fact that the termination letter (Exh U1) was issued on October 16, 1988 to take effect on the same date and it was issued after the failure to reach a settlement at a conciliatory meeting at Kluang (Jabatan Buruh) on October 15, 1988 relating to the downgrading of the four claimants. If there had been a settlement on October 15, 1988, the issue of termination of the claimants on October 16, 1988 would not arise. If the condonation or waiver for the absence was from October 1, 1988 to October 7, 1988, as found by the learned Judge was correct, then it logically follows that the termination should take effect from October 8, and not October 16, 1988!
Be that as it may, was the learned Judge correct in concluding that there was no evidence, oral or documentary, that their absence during the period October 8 to October 15, 1988 was waived or condoned. In this respect we have to look at the evidence of KJSB's manager which was considered by the Industrial Court at p 343 of the appeal record-
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(Q) |
On 15.10.88 there was a meeting at Kluang (Jabatan Buruh) a conciliatory meeting. |
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(A) |
Yes. No settlement was reached. |
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(Q) |
So you issued Ex U1 — the termination letter on the afternoon of 15.10.88. |
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(A) |
Yes. |
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(Q) |
You have used section, 15(2) in U1. |
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(A) |
Yes. |
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(Q) |
You are saying they have ceased to be employed with effect from 16.10.88. |
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(A) |
Yes. |
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(Q) |
Why did you chose 16.10.88 in U1? |
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(A) |
Because we have waived their absence from 29.9.88, the date of the verdict of the injury. We have waived their absence. [emphasis added] |
On the above evidence, the Industrial Court came to this finding-
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The Manager having clearly in unambiguous and explicit language said that the reason he issued Ex U1 termination letter on 16.10.88 is because he had waived their absence from 29.9.88 to 15.10.88. Surely if there has been a waiver of their absence, there has been condonation of the offence and therefore there was no basis, to issue a termination letter. |
No doubt, it was not expressly stated by the estate manager that the waiver was up to October 16, 1988 but from the tone of his evidence, the irresistable inference must be that the waiver was up to October 15, 1988. This is borne out by his answer to the next question put to him-
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(Q) |
On 16.10.88 you decided not to waive their absence any more? |
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(A) |
Yes. |
The Industrial Court then went on next to say-
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The manager having given an explanation as to why he chose the date 16.10.88 to issue Ex U1 the letter of termination did a virtual turnaround and said as follows:
[emphasis added] |
By the use of the words ‘I now say' clearly showed that the witness tried to correct himself that prompted the Industrial Court to say that the witness did a "virtual turnaround". This is a matter of credibility of the witness and is within the competence and jurisdiction of the Industrial Court to determine his credibility.
The next question to consider is whether the learned Judge was entitled to disturb the finding of facts and the credibility of witnesses by the Industrial Court and substitute with that of his own.
This court in Ang Beng Teik v Pan Global Textile Berhad, Penang [1996] 3 AMR 2941 at p 2976 sets out the role of a High Court in public law remedies, thus-
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The role of a High Court when exercising the powers conferred upon it by para 1 of the Schedule to the Courts of Judicature Act 1964 in the context of public law was explained by the Federal Court in Hoh Kiang Ngan v Mahkamah Perusahaan Malaysia [1995] 3 MLJ 3 p 369 at pp 363-364 as follows:
[emphasis added] |
The learned Judge relied heavily on the High Court case of Pan Global Textile Bhd, where the said case relates to the issue of the Industrial Court considering and taking into account the downgrading of the respondent / claimant when the subject matter of the Minister's reference was the respondent / claimant's subsequent dismissal by the employer for refusing to turn up for work in the downgraded position. By the time this appeal came before us Pan Global Textile Bhd was overturned by this court and the order of the Industrial Court reinstated. This court in overturning the learned Judge's judgment said at p 2975-
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Second, the learned Judge appears to have assumed the task of making a finding that based on the facts of the case, the appellant's dismissal was justified. What the learned Judge did smacks of the exercise of appellate power when the jurisdiction he was exercising was purely supervisory. The question whether the appellant's dismissal was justified or amounted to an act of victimization was one which was for the Industrial Court to determine. What the Judge did in effect, was to reverse the decision of the Industrial Court and to substitute his own decision therefor. This, needless to say, was wrong. |
In our view, the learned Judge clearly was wrong to make a finding that the Industrial Court based its decision on no evidence and that its decision was perverse relying on Malayan Banking Bhd v Association of Bank Officers Peninsular Malaysia [1988] 3 MLJ 204 when there was more than ample evidence before the Industrial Court, as stated by us earlier, that the dismissal of the claimants was without just cause or excuse, that is, their absence was condoned or waived by KJSB. In the circumstances it was wrong for the learned Judge in a supervisory role to substitute his own finding of fact when such role is much within the province of the Industrial Court. On the evidence before it, the Industrial Court was more than justified to come to such finding of fact and to its assessment of the credibility of the estate manager. This court in William Jacks & Co (M) Sdn Bhd v S Balasingam [1997] 3 AMR 2585 at page 2590 said-
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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. However widely understood the proposition in Rama Chandran and Amanah Butler (supra) may be, it does not include the review, in certiorari proceedings, of finding of fact based on the credibility of witnesses. |
In short, the Industrial Court correctly concluded that the claimants' absence from September 29, 1988 to October 15, 1988 was condoned or waived by KJSB. In the event the termination of the claimants' employment by KJSB was rightly found by the Industrial Court to be invalid.
On this issue alone, NUPW should succeed in this appeal.
For completeness, the other errors allegedly committed by the Industrial Court can be best answered by the judgment of this court in Ang Beng Teik (the facts of which are more or less similar to the facts of this appeal before us). This court in Ang Beng Teik at p 2976 said:
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To summarize, this is a case where the Industrial Court had to determine whether the termination of the appellant was a bona fide exercise of managerial power or a case of unjustified dismissal cloaked as a termination simpliciter. In carrying out that task, the lndustrial Court had to deal with the appellant's conduct in failing to assume the post to which he had been demoted and his reasons therefor. It had to deal with the respondent's contention that the appellant's refusal to take up his demoted post entitled it to terminate the appellant's services, it did all this and at the end of the exercise came to the conclusion that the whole process - the inquiry followed by the demotion and the eventual termination - were designed to victimize the appellant. That was a conclusion that was well within the scope of its inquiry. lt did not commit any error of law when performing the task entrusted to it. |
This is what the Industrial Court said at pp 344-345 of the appeal record-
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Second: Assuming the manager had only waived the four claimants' absence only from 29.9.88 to 8.10.88, the claimants have then been absent from work without prior approval, for another six days from 9.10.88 to 15.10.88. Does this absence fall within the ambit of Section 15(2) of the Employment Act 1955? Section 15(2) is only a deeming provision, a presumption of breach of a contract of service which can be rebutted by a workman showing he had a reasonable excuse for such absence and has informed his employer at the earliest opportunity of his absence. The claimants had a reasonable excuse to be absent which was known to the management from 29.9.88 that they were pursuing their grievance of being demoted from tappers to general workers and it was reasonable for them to wait for the outcome of the conciliation meeting at Kluang Labour Office. In the circumstances apart from a perverse finding of guilt and a breach of natural justice the contention of the management that the claimants have terminated their contract of service by failure to turn for work without a valid excuse is misconceived. The management's claim in Exh 1 that the claimants have ceased to be employees of the estate ought in the circumstances to be treated as victimisation, an unfair labour practice and a dismissal by the management of the claimants without just cause or excuse. |
In our view, it was well within the scope of the Industrial Court to come to such a finding.
We were satisfied that the Industrial Court did not commit any error or errors of law and had correctly considered the facts before it and the law applicable thereto. It was the learned Judge who was wrong and who had exceeded his role.
In the circumstances, the appeal was allowed with costs here and below. The order of the Industrial Court was restored and we ordered the deposit to be refunded.
Cases
Ang Beng Teik v Pan Global Textile Bhd [1996] 3 AMR 2941; Superintendent of Lands & Mines (4th Div) v Hamit Matusin [1994] 3 AMR 1882; The Manager Scudai Estate, Johore Bahru v Narayanan [1960] 26 MLJ 162; Amanah Butler (M) Sdn Bhd v Yike Chee Wah [1997] 2 AMR 1653; Malayan Banking Bhd v Association of Bank Officers Peninsular Malaysia [1988] 3 MLJ 204; Persatuan Pengeluar-Pengeluar Pertanian Tanah Melaya v Kesatuan Kebangsaan Pekerja-Pekerja Ladang [1986] ILR 586; Rama Chandran, R v The Industrial Court of Malaysia [1997] 1 AMR 433 (dist); William Jacks & Co (M) Sdn Bhd v S Balasingam [1997] 3 AMR 2585
Legislations
Employment Act 1955: s.15(2)
Industrial Relations Act 1967: s.26(2)
Authors and other references
Abdul Majid, Condonation as Waiver of the Employer's Right to Punish
Misconduct, [1996] 2 MLJ xvii
Representations
B Lobo (Lobo & Associates) for Appellant
Thavalengam (Shearn Delamore & Co) for Respondent
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