Judgment

M.T. Chang FJ

(delivering the judgment of the Court)

1. By originating motion filed on 18 October 1975, the appellants sought for an order of certiorari to quash the decision of the Minister of Labour and Manpower (the Minister) made on 24 May 1975 under the then s 16A of the Industrial Relations Act, 1967 (the Act). In the statement supporting the motion, the order of the Minister was attacked on the grounds that (1) it was wrong in law on the face of the record, (2) it was contrary to the provisions of the Employment Ordinance, and (3) it was in excess of his jurisdiction.

2. The brief facts on which the application was made are as follows: the first respondent (the workman) was suspended from work for one week from 13–19 December 1974 for misconduct. After the expiry of that week on 20 December he did not report for work. A letter of dismissal was sent him on 27 December but it was returned undelivered. It was only on 8 January 1975 that he first reported for work, with medical certificates issued by the District Hospital Kajang to cover the period of his absence from work. The appellants maintained he had been dismissed.

3. Section 15(2) of the Employment Ordinance, 1955 at the relevant time read:

   15.

   (2) A labourer shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two days – (a) without prior leave from his employer or without reasonable excuse; or (b) without informing or attempting to inform his employer of the excuse for such absence.

4. This section had, in the circumstances, to be read with s 60F(2) which provided that

   60F

   (2) A labourer who absents himself on sick leave .... (b) which is certified by a medical officer but without informing or attempting to inform his employer of such sick leave within forty-eight hours of the commencement thereof, shall be deemed to absent himself from work without the permission of his employer and without reasonable excuse for the days on which he is so absent from work.

5. The appellants relied on these provisions to justify the dismissal. In their view, the respondent had broken his contract of service. He had no reasonable excuse for his absence from work, nor had he informed or attempted to inform his employer of the excuse for such absence.

6. The respondent considered he had such a reasonable excuse in the state of his health and he contended he had informed his employers. He therefore thought his dismissal unfair and he availed himself of the provisions in the then s 16A of the Act.

7. That section which has since been repealed and re-enacted with several distinct differences in s 20, reads in its relevant parts as follows:

   16A

   (1) Where a workman considers that he has been dismissed without just cause or excuse by his employer... he may, within one month of such dismissal, make representations in writing to the Minister to be reinstated in his former employment. (2) The Minister may, before making a decision on any such representations, request the Commissioner to enquire into the dismissal and report whether in his opinion the dismissal is without just cause or excuse and in such an enquiry the workman may be represented by his trade union. (3) The Minister, if he decides to deal with the representations himself, may before making a decision thereon give an opportunity to the employer and his trade union and to a trade union representing the workman to be heard. (4) If, after considering the representations of the workman and of the employer (if any) and any report made by the Commissioner under sub-s (2) the Minister is satisfied that the workman has been dismissed without just cause or excuse he may, notwithstanding any rule of law or agreement to the contrary – (a) direct the employer to reinstate the workman in his former employment and to pay the workman an amount that is equivalent to the wages that he would have earned had he not been dismissed by the employer; or (b) direct the employer to pay such amount of wages as compensation as may be determined by the Minister, and the employer shall comply with the Minister’s direction. (5) The decision of the Minister on any representations made under this section shall be final and conclusive and shall not be challenged in any court or in a court established under this Act. .... (9)   Notwithstanding the provisions of the foregoing subsections, the Minister may of his own motion if he is satisfied that it is expedient so to do or on the joint request of the trade union refer any dismissal to the court for settlement.

8. On his representation made well within the time limited, the Minister requested the Commissioner to enquire into the dismissal and make his report. Both the workman and the employers by their representatives were present. It is not the case for the appellants that they were not heard. On the strength of the Commissioner’s report, the Minister was satisfied that the workman had been dismissed without just cause or excuse. He felt no need to resort to the provisions of sub-s (9) to refer the case to the Industrial Court and he himself made an order for reinstatement of the respondent in his employment.

9. In a representation under s 16A, so long as the principles of audi alteram partem expressed in sub-s (3) and implied in sub-s (2) and of freedom from bias are observed, the critical question is whether the Minister is satisfied. As observed by Lord Wilberforce in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1047, substituting Minister for Secretary of State,

   1. The section is framed in a “subjective” form – if the Minister “is satisfied.” This form of section is quite well-known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that: If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Minister alone, the court may inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If those requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge: see Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455 per Lord Denning MR at page 493.

   2. The section has to be considered within the structure of the Act. In many statutes a Minister or other authority is given a discretionary power and in these cases, the court’s power to review any exercise of the discretion, though still real, is limited. In these cases it is said that the courts cannot substitute their opinions for that of the Minister: they can interfere on such grounds as that the Minister has acted right outside his powers or outside the purpose of the Act, or unfairly, or upon an incorrect basis of fact. But there is no universal rule as to the principles on which the exercise of a discretion may be reviewed: each statute or type of statute must be individually looked at.

10. The Tameside case was considered by their Lordships of the Privy Council in Attorney General of St Christopher, Nevis & Anguillia v Reynolds [1980] 2 WLR 171 where it was held that “if the Governor is satisfied” means

    if the Governor is satisfied upon reasonable grounds that any person has recently been concerned in acts prejudicial to the public safety or to public order and that by reason thereof it is reasonably justifiable and necessary to exercise control over him with an order for his detention under the Emergency Powers Regulations, 1967.

    Where the statement specifying the grounds upon which he is detained required to be served on him by the Constitution does not specify the grounds, it is an irresistible inference that no grounds exist, the detention order is invalid and the detention unlawful.

11. In general, therefore, the court’s power of challenge of the Minister’s decision arises only where he has acted in bad faith or against the rules of natural justice or where facts do not exist upon which the Minister could reasonably determine the question before him and unless the jurisdiction of the court is statutorily ousted, for an error of law.

12. It is not the appellants’ case that the Minister had acted in bad faith or had not observed all the elementary rules of fairness before he came to his decision that the dismissal of the respondent was without just cause or excuse. He had given the employers a full hearing. On the law, he had not failed to direct his mind that so as not to break his employment with the employers, the employee on sick leave must inform or attempt to inform his employers within 48 hours of the fact that he is unable to work by reason of sickness or ill-health and on the evidence, after hearing both sides, he was satisfied that the respondent had kept his side of the bargain.

13. But it also appears to be the contention of the appellants that though the respondent might have been an employee under the Employment Ordinance, he was not a workman within the Act since under the definition of workman in s 27 of the Act, he must be a person concerned in a trade dispute and he was not such a person.

14. The definition of a workman in the Act reads as follows:

    Workman means any person, including an apprentice employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute.

15. The contention of the appellants both in the High Court and before us appears, unless we have grossly misunderstood them, to be that “and” is conjunctive and therefore a workman claiming under the Act must be involved in a trade dispute, but being in the singular, he could not be so involved since the definition of “trade dispute” in the Act refers only to “workmen.” The learned judge held that “and” is disjunctive and therefore included an individual whose complaint of dismissal without just cause or excuse would be dealt with under s 16A, as well as one who being a member of a trade union could bring questions of his dismissal, discharge or retrenchment under the then s 23 (now s 26) through a trade union as a trade dispute where such dismissal, discharge or retrenchment had led to that trade dispute. With respect, we entirely agree.

16. The learned judge did not consider the effect of sub-s (5) which provides that the decision of the Minister on any representation under the section shall be final and conclusive and shall not be challenged in any court. Quite clearly this provision must be given effect to in any application for certiorari. In the leading case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, the House of Lords held unanimously that a provision that the act or order of the Commission “shall not be questioned in any legal proceedings whatsoever” ousts the jurisdiction of the courts in judicial review except for a determination that was outside jurisdiction and by a majority that misconstruction of the order in Council which the Commission had to apply involved an excess of jurisdiction since they based their decision “on a ground which they had no right to take into account” per Lord Reid at page 175 and sought to “impose another condition, not warranted by the order,” per Lord Wilberforce at page 214.

17. Despite Anisminic, our High Court continued to have to entertain applications for certiorari on the grounds of error of law where the ouster of the court’s jurisdiction to quash the orders and decisions of inferior tribunals has been clearly limited to errors of jurisdiction. The instant case is but one of them, at least in part. Whatever doubts there remained have now been removed by the Privy Council judgment in South-East Asia Fire Bricks Sdn Bhd v Non-Metallic Minerals Products Manufacturing Employees Union [1980] 2 MLJ 165; [1980] 2 All ER 689. The section considered was a different section, the then s 29(3)(a) (now s 32(3)(a)) but it is clear that the Privy Council considered that part which read “quashed or called in question in any Court of Law” to uphold the “powerful dissent” of Geoffrey Lane LJ in Pearlman v Keepers and Governors of Harrow School [1979] QB 56 at page 74, which has now become the law in England with its approval in Re Racal Communications Ltd [1980] 3 WLR 181; [1980] 2 All ER 634. The judgment of the Privy Council clearly rules that

    .... if the inferior tribunal has merely made an error of law which does not affect its jurisdiction and if its decision is not a nullity for some reason such as breach of the rules of natural justice, then the ouster will be effective. In Pearlman v Keepers and Governors of Harrow School (1979) QB 56, 70, Lord Denning MR suggested that the distinction between an error of law which affected jurisdiction and one which did not should now be ‘discarded’. Their Lordships do not accept that suggestion. They consider that the law was correctly applied to the circumstances of that case in the dissenting opinion of Geoffrey Lane LJ when he said at p 74: .... the only circumstances in which this court can correct what is to my mind the error of the (County Court) judge is if he were acting in excess of his jurisdiction as opposed to merely making an error of law in his judgment by misinterpreting the meaning of ‘structural alteration’ .... or addition.

18. The only material difference between s 29(3)(a) and s 16A(5) of the Act is the presence of the word “quashed” in the former section. In our view, having regard to the decision in Anisminic, the ouster provision in s 16A(5) is sufficiently wide to remove certiorari based on an allegation of an error of law.

19. The time has surely come for a critical examination of the very many applications that have been made in the past and still await decision either at first instance or on appeal. The doctrine of precedent and commonsense as well as the practical considerations of cost and time must mean that where the application is based on an error of law, it should now be abandoned, unless of course the applicant can make out a case that such an error is in fact and in law an error of jurisdiction.

20. But very clearly the learned judge was right in finding no error of law, and though he did not say so, it is implicit in his decision, no error of jurisdiction.

21. The appeal is therefore dismissed with costs.

Cases

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014; 1017

Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455

Attorney General of St Christoper, Nevis and Anguilla v Reynolds [1980] 2 WLR 171

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

South-East Asia Fire Bricks Sdn Bhd v Non-Metallic Minerals Products Manufacturing Employees Union [1980] 2 MLJ 165; [1980] 2 All ER 689

Pearlman v Keepers and Governors of Harrow School [1979] QB 56

Re Racal Communications Ltd [1980] 3 WLR 181; [1980] 2 All ER 634

Representations

KL Rekhraj (M/s KL Rekhraj & Co) for the appellants.

R Ponnudurai (M/s Rajendra & Teik Ee) for the first respondent.

Susila Param (Federal Counsel) for the second respondent.

Notes:-

This decision is also reported at [1981] 2 MLJ 124.