Justice Ahmad Fairuz Zainol Abidin said the employer, SG Concrete Products Sdn Bhd, had erroneously filed an appeal with the High Court instead of pursuing a judicial review in both cases.
He also said the High Court judge had erred in allowing the appeals and setting aside the Industrial Court’s awards.
“On this basis alone, we find that the appeals ought to be allowed and the decision of the High Court is set aside. The award of the Industrial Court is reinstated,” Ahmad Fairuz said in the 14-page judgment.
As a result, the judge said the bench — which included Justices Supang Lian and Lim Chong Fong — saw it unnecessary to consider the merits of the appeal.
Appellants Rosli Saad and Rohlizan Rahaman had, through their lawyer, Ravi Nekoo, raised a preliminary objection as to the mode by which the matter was brought before the High Court.
On November 14, 2022, the Industrial Court awarded Rosli RM56,400 and Rohlizan RM38,400 in compensation in lieu of reinstatement. The two men were terminated for being absent from work for four consecutive days without reasonable excuse, breaching Section 15(2) of the Employment Act 1955.
The two drivers, then represented by different counsel, had raised a similar objection in the High Court, which was dismissed.
However, Ahmad Fairuz said the High Court fell into error in dismissing the objection.
He said the employer should have filed a judicial review instead of an appeal to the High Court to challenge the two awards.
Rosli and Rohlizan were terminated from their employment on Oct 22, 2020, and filed their representations with the industrial relations department before Dec 31 that year, while the law which provides for the judicial review process was still in force.
The appeal process was introduced by way of the Industrial Relations (Amendment) Act 2020 which took effect on Jan 1 the following year.
The human resources minister referred the duo’s representations to the Industrial Court for adjudication on April 24, 2021.
“This is where the drafters of the Act have in their wisdom introduced Section 35 in the Act to cater for the current conundrum,” he said.
The section provides that where any representation for reinstatement is made before the amended Act comes into force, it shall proceed under the law in force prior to the amendment.
Farah Irina Khairi Izwan represented the employer, who is appealing the decision to the Federal Court.