This follows the Federal Court’s dismissal of SG Concrete Products Sdn Bhd’s application for leave to set aside a Court of Appeal ruling favouring Rosli Saad and Rohlizan Rahaman.
A three-member bench chaired by Chief Judge of Malaya Hasnah Hashim ruled that the three legal questions posed by the applicant did not cross the threshold under Section 96 of the Courts of Judicature Act 1964.
An applicant must satisfy the Federal Court that the proposed appeal contains novel legal or constitutional questions of public importance which are being raised for the first time.
Hasnah, who sat with Justices Zabariah Yusof and Hanipah Farikullah, also ordered the employer to pay Rosli and Rohlizan RM30,000 in costs.
Last year, the Court of Appeal unanimously restored separate Industrial Court awards in favour of the two men for unlawful dismissal after allowing a preliminary objection raised on their behalf.
Justice Ahmad Fairuz Zainol Abidin said SG Concrete Products 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.
Fairuz, who delivered the judgment, said the appeals should be allowed, with the decision of the High Court set aside and the Industrial Court awards reinstated.
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.
Rosli and Rohlizan, through their lawyer Ravi Nekoo, had raised a preliminary objection over the mode by which the matter was brought before the High Court.
On Nov 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.
Rosli and Rohlizan were terminated from their employment on Oct 22, 2020. They filed 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.
Fairuz said the drafters of the act had introduced Section 35 to address the current conundrum.
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 before the amendment.
Farah Irina Khairi Izwan represented the employer.
Ravi told FMT he would now proceed to enforce the Court of Appeal judgment for the employer to pay compensation, inclusive of interest.