How to Make A Claim in The Industrial Court?

The Industrial Court of Malaysia is a court that is created by the Industrial Relations Act 1967 (‘IRA 1967’). It is an avenue to adjudicate disputes between aggrieved workmen and their employers.

Before proceeding to a hearing in the Industrial Court, there are some preliminary steps that will have to be taken first. This article will explain them as well as the hearing process in the Industrial Court.

It is also important to note that these procedures have been most recently updated by the Industrial Relations (Amendment) Act 2020, which had come into effect on 1^st January 2021.

Step 1: Making a Complaint or Representation to the Director General of Industrial Relations

Section 8 of the IRA 1967 provides that any complaint of any contravention of sections 4, 5 or 7 of the IRA 1967 may be lodged in writing to the Director General to which the Director General has to take action.

Section 4 relates to the right to form and assist in the formation of a trade union and to join and participate in its lawful activities.

Section 5 relates to the prohibition against the imposition of conditions in an employment relationship relating to the participation in trade unions and others.

Section 7 relates to interference, intimidation, and inducement to a workman to join or to refrain from joining a trade union.

Section 20 of the IRA 1967 allows workman, irrespective of whether he is a member of a trade union of workmen or otherwise, who considers that he has been dismissed without just cause or excuse by his employer, to make representations in writing to the Director General to be reinstated to his former employment. It is important to note that the representations must be filed within 60 days of the dismissal or within 60 days from the last day of the employee’s termination notice, whichever is later.

The complaint can be made to the Department of Industrial Relations nearest to the complainant. For example in KL, it would be the Jabatan Perhubungan Perusahaan Kuala Lumpur at Tingkat 8, Menara PERKESO, 281, Jalan Ampang, 50536 Kuala Lumpur.

Step 2A: Complaint under Section 8

The Director General upon receiving any complaint under Section 8 may take such steps or make such enquiries as he considers necessary or expedient to resolve the complaint.

Where the complaint is not resolved, the Director General may, if he thinks fit, refer the complaint to the Court for hearing. The Court shall thereupon conduct a hearing in accordance with the IRA 1967 and may make such award as may be deemed necessary or appropriate. Go to Step 3 onwards.

Step 2B: Representation under Section 20

For a representation under Section 20, which is a complaint by an employee that he was dismissed without just cause, the Director General shall take such steps as he may consider necessary or expedient to resolve the dispute.

These “necessary or expedient” steps often refer to organising a conciliation meeting between the employer and the aggrieved employee, whereby an officer of the Director General would facilitate the negotiation discussion between the parties, in hope that they can achieve a settlement.

In this conciliation meeting,  an employer may either (i) represent himself or be represented by his duly authorized employee or (ii) where he is a member of a trade union of employers, be represented by any officer or employee of such trade union of employers or (iii) any official of an organization of employers registered in Malaysia (not being a trade union of employers; or (iv) be represented by any other person except an advocate and solicitor, duly authorized by the employer in writing and subject to the permission of the Director General.

On the other hand, a workman may (i) represent himself or (ii) where he is a member of a trade union of workmen, be represented by any officer or employee of such trade union of workmen or (iii) by any official of an organization of workmen registered in Malaysia (not being a trade union of workmen; or (iv) any other person except an advocate and solicitor, duly authorized by the workman in writing and subject to the permission of the Director General.

During these conciliation or negotiation meetings, a workman or employer cannot be represented by an advocate.

Step 3: Referral to the Industrial Court

If after taking these steps, the Director General is satisfied that there is no likelihood of the dispute being settled, the Director General shall refer the representation to the Industrial Court for a hearing and for an award.

Previously, the Director General will refer the representation to the Minister of Human Resource, whom shall, acting as a filter against vexatious or frivolous claims, decide whether the representation should be referred to the Industrial Court or not. However, this step has been abolished by the Industrial Relations (Amendment) Act 2020.

Flowchart of the hearing process prepared by the Industrial Court of Malaysia.

As a result of the amendment in 2020, now a referral will not be by the Hon. Minister, but by the Director General

Step 4: Registration of the Case in the Industrial Court of Malaysia

Upon receiving the Director General’s referral, the Court will register the case. Then, the Court will serve a notice of mention to the parties by issuing Form F. See Industrial Court Rules 1967.

This is to inform the parties to attend at Court for instructions on the filings of pleadings, the hearing date, and other pre-hearing directions.

Step 5: Appointment of Lawyers

At this stage, parties can either choose to represent themselves, hire a legal practitioner to represent them or request their unions (i.e MTUC or MEF) to represent them.

If a party chooses to hire a legal practitioner to represent them, the party shall submit two forms, namely Form A (Application for Permission to be Represented by a Legal Practitioner) and Form B (Warrant of Authority).

If the parties choose to be represented by their unions, either the Malaysian Trade Union Congress (‘MTUC’) or the Malaysian Employers Federation (‘MEF’), they only need to submit Form B.

Based on experience, we highly recommend parties to appoint legal practitioners, as often the hearing will inevitably involve legal technicalities and points of law, that are best managed by lawyers. There will also be a process of examination of witnesses, which are also best carried out by legal practitioners who are trained to do them.

Step 6: Case Managements before Hearing

After the first case mention, there will be a few more case managements to ensure all relevant documents are ready before the hearing begins.

It is important to note that although it is called a “hearing” by the IRA 1967 and the Industrial Court Rules, these “hearings” are in fact trials, where witnesses will come and testify, and be examined by the other side.

The documents that have to be filed before a hearing include but not limited to:

• Statement of Case;
• Statement in Reply;
• Rejoinder;
• Claimant’s Bundle of Documents;
• Company’s Bundle of Documents; and
• Witness statements.

After the parties have filed all necessary documents, the Court will then proceed with the hearing. A notice of hearing will be made by way of Form G.

Step 7: Hearing of the case

During the day of the hearing, both parties will need to attend the court together with their witnesses (if any). The hearing will proceed like an actual trial process wherein both parties will call their witnesses to give evidence under oath, then the other side may question the witnesses,

Usually, for a case of unfair dismissal, the Company, which bears the burden of proof to prove that the dismissal of the employee was with just cause or excuse, will start the case first. This means that the Company will call their witnesses first to give evidence, who will then be subjected to the Employee / Claimant’s questioning.

After the Company calls all its witnesses, it will be the Claimant’s turn to call his/her witnesses, and these witnesses will be subjected to the Company’s questioning.

On the other hand, for a case of constructive dismissal or forced resignation, the process is the other way round where the Employee / Claimant has to call his/her witnesses first before the Company call its witnesses. This is because the burden is on the Employee / Claimant to prove that he / she in fact been dismissed by the Company in the first place.

The case of Telekom Malaysia Kawasan Utara v Krishnan Kutty A/L Sanguni Nair and Anor [2002] 3 MLJ 129 has affirmed that the standard of proof before the Industrial Court would be on a balance of probabilities, even if criminal elements are involved.

After all, the evidence has been tendered and all the witnesses have been examined, the Court will then direct the parties to file:

• Written Submissions; and
• Bundle of Authorities

to explain why based on the testimonies of the witnesses, the documentary evidence, and the law, the Court should rule in their favour. Oral submissions are also occasionally requested.

Step 8: Award by the Industrial Court

Upon hearing the witnesses and reading and/or listening to the parties’ submissions, the Industrial Court judge will then finally decide on the case and make his/her lordship’s / ladyship’s award.

The Court may rule in favour of the employee, and consequently order that he/she be reinstated in the Company, or order that the Company pays the employee a certain amount of damages (monetary compensation). For the type of awards that the Court may order, see here.

Otherwise, the Court may rule that the representation by the employee is without merit and therefore dismisses it.

In deciding the case, the Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form. See Section 30(5) of the IRA 1967.

Step 9: Appeal to the High Court

An award by the Industrial Court can be challenged by an appeal to the High Court. Under Section 33C of the IRA 1967, such application should be made within 14 days of the receipt of the award. The appeal by the Industrial Court to the High Court shall be treated as if the appeal is made from a Sessions Court to the High Court.

On the other hand, if the employer refuses to honour the award that is made against it, the employee may lodge a complaint of non-compliance to the Industrial Court, and there are mechanisms available to enforce the award in the Civil Court.

We hope the above is clear. If you require further advice or representation in relation to an Industrial Court claim, feel free to Contact Me.

Authored with the assistance of my able interns, Connie Yap and Bernice Ho.