In cases of unfair dismissal or constructive dismissal, if the Industrial Court finds in favour of a Claimant, the Industrial Court would generally award backwages and compensation in lieu of reinstatement.
In Koperasi Serbaguna Sanya Bhd. (Sabah) v. Dr. James Alfred and Anor [2000] 3 CLJ 758, the Court of Appeal noted:
“In industrial law, the usual remedy for unjustified dismissal is an order of reinstatement. It is only in rare cases that reinstatement is refused. For example, as here, where the relationship between the parties had broken down so badly that it would not be conducive to industrial harmony to return the workman to his place of work. In such a case, the Industrial Court may award monetary compensation. Such an award is usually in two parts. First, there is the usual award for the arrears of wages, or back wages, as it is sometimes called. It is to compensate the workman for the period that he has been unemployed because of the unjustified act of dismissal. Second, there is an award of compensation in lieu of reinstatement.”[1] (emphasis mine)
The Industrial Court could possibly award monetary compensation in trade disputes. For example, the Industrial Court in Kesatuan Pekerja-Pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v Assunta Hospital [Industrial Court Case No. 21(26)(13)/3-455/15][2] ordered the Company to make a one off payment of RM1,000.00 to selected confirmed employees.
The Industrial Court’s decision was affirmed by the High Court in Assunta Hospital v Kesatuan Pekerja-Pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta & Anor [Kuala Lumpur High Court Judicial Review Application No. WA-25-215-05/2019].
For the purposes of this article, any Industrial Court Award ordering the payment of monetary compensation will henceforth be referred to as an “Industrial Court Monetary Award.”
Stay
When an Industrial Court Monetary Award is challenged at the High Court via judicial review, it is not uncommon for the Applicant/Company to apply for a stay of the Industrial Court Monetary Award.
For example, in Ngeow Voon Yean v Sungei Wang Plaza Sdn Bhd/Landmarks Holding Bhd [2006] 5 MLJ 113, the Federal Court noted in passing that the High Court had granted a stay of the Industrial Court Monetary Award:
“The appellant questioned his dismissal in the Industrial Court and in Award No 179 of 1993, dated 16 June 1993, that court ruled in his favour and held his dismissal to be without just cause or excuse. The appellant was awarded compensation in lieu of reinstatement, back wages and payments in respect of leave due and not taken, to be paid to him within one month of the date of the award. A stay on the award was granted pending further proceedings in the High Court.”[3] (emphasis mine)
In Sungei Wang Plaza Sdn Bhd & Anor v Ngeow Voon Yean & Anor [1997] MLJU 261, Abdul Kadir Sulaiman J (as His Lordship then was) noted in his judgement:
“On 16th June 1993 the Industrial Court handed down the impugned award holding that the dismissal of the first Respondent was without just cause or excuse and awarded him with compensation in lieu of reinstatement, back wages and payments in respect of leave due and not taken, to be paid to him within one month of the date of the award. Aggrieved with the terms of the award, the Applicant filed this application and obtained a stay of the order of the Industrial Court until the determination of the application.”[4] (emphasis mine)
The purpose of the stay is to disallow the Claimant/Union, amongst others, from pursuing non-compliance proceedings against the Applicant/Company pursuant to Section 56 of the Industrial Relations Act 1967.
The Test
Unfortunately, there is a dearth of case law in terms of the test for an application for a stay of an Industrial Court Monetary Award.
In view of this, it seems likely that the “special circumstances” test applicable in civil cases will be applicable. The Court of Appeal in Low Nam Hui & Sons Sdn Bhd v Juang Yan Teo [2007] 7 MLJ 13 (“Low Nam Hui”) explained the special circumstances test as follows:
“In an application for stay of an order after a full trial pending appeal, the general rule is that the appellant/applicant must show that there are special circumstances justifying a stay. It is often said that the courts will not deprive a successful litigant of the fruits of his litigation after a full trial, and will not grant a stay unless special circumstances are shown by the unsuccessful party who is appealing to a higher court against the relevant order. Thus in the Singapore case of Lee Kuan Yew v Jeyaretnam JB [1991] 1 MLJ 83 judgment was given against the defendant after a full trial and Yong Pung How�J. (as he then was) dismissed the application for stay of execution of the order pending appeal because the defendant had failed to show any special circumstances.”[5] (emphasis mine)
The Court of Appeal in Low Nam Hui went on to say the following:
“The statutes or the rules of court do not define what constitutes a special circumstance. This is left practically to the opinion and judicial discretion of the presiding judges. In a nutshell, a special circumstance must mean something out of the ordinary or something unusual. The category of special circumstances can never be limited or closed, as from time to time and case to case different and various factors may be accepted as special circumstances. The judge sitting alone or the judges of an appellate court must decide, on the available evidence disclosed in the competing affidavits before him or them, whether there are special circumstances relating to the enforcement of the order or judgment in order to justify a stay of the order or judgment appealed against, and on what terms, if any, which are reasonable. There may be a situation in which one single factor by itself will not constitute a special circumstance. Depending on the facts of the case, there may also be a situation in which merit of the appeal and one or more factors considered together may amount to a special circumstance justifying a stay. The judge will have to balance the competing interests of the parties. Where the applicant can show that there is no risk that he will dispose of his assets pending appeal, the discretion is to grant a stay.”[6] (emphasis mine)
So in cases of an Industrial Court Monetary Award, what has amounted to a special circumstance?
The very fact that the Claimant is an individual, and there is no certainty of recovery, can be a special circumstance. In Ritz Garden Hotel Sdn Bhd v Industrial Court, Malaysia & Anor [2002] 6 MLJ 353 (“Ritz Garden Hotel”), Abdul Aziz J noted:
“The second respondent is an individual, a dismissed employee, not an organization or a company that carries on a business. If the amount of RM168,000 was paid to the second respondent, there is no certainty that the applicant would succeed in getting back the whole amount or any part of it in the event that it succeeded in having the award quashed. That, I think, is a valid fear that requires no evidence beyond the known circumstances that I have mentioned to support it. That fear can only be dispelled by the second respondent setting out circumstances concerning himself to assure the court that he would be able to refund the money if the award were quashed, but he has not filed any affidavit.”[7] (emphasis mine)
Ritz Garden Hotel appears to be an authority for the placing of a burden on the Claimant to dispel the fear of no certainty that the Applicant/Company would succeed in getting back the whole amount or any part of the Industrial Court Monetary Award in the event the Applicant/Company is successful in its judicial review application.
In the event the Claimant is unable to dispel the fear of no certainty of recovery, it appears that a special circumstance exists warranting the granting of a stay of the Industrial Court Monetary Award.
[1] Koperasi Serbaguna Sanya Bhd. (Sabah) v. Dr. James Alfred and Anor [2000] 3 CLJ 758, at 766
[2] http://www.mp.gov.my/eicpp/MainServlet?action=downloadAward&awardIndex=29311&awardCategory=4
[3] Ngeow Voon Yean v Sungei Wang Plaza Sdn Bhd/Landmarks Holding Bhd [2006] 5 MLJ 113, at paragraph 5
[4] Sungei Wang Plaza Sdn Bhd & Anor v Ngeow Voon Yean & Anor [1997] MLJU 261, at pp. 3-4
[5] Low Nam Hui & Sons Sdn Bhd v Juang Yan Teo [2007] 7 MLJ 13, at pp. 18-19
[6] Low Nam Hui & Sons Sdn Bhd v Juang Yan Teo [2007] 7 MLJ 13, at p. 19
[7] Ritz Garden Hotel Sdn Bhd v Industrial Court, Malaysia & Anor [2002] 6 MLJ 353
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