SHH CONSTRUCTION SDN BHD v 1. ) MAHKAMAH PERUSAHAAN MALAYSIA 2. ) SOMASUNTHARAM A/L SHANMUGADASS

Case Significance

Illustrates the limited leave threshold in judicial review of Industrial Court awards and the deference owed to the tribunal's findings, including its apportionment of compensation for an employee's contributory conduct.

This High Court decision at Kuala Lumpur concerns an application by an employer for leave to commence judicial review of an Industrial Court award in an unfair dismissal matter. After a full trial, the Industrial Court had held that the second respondent, a dismissed employee, had been dismissed without just cause or excuse, but had also found him contributorily negligent in creating disharmony at the workplace, and on that footing ordered a fifty per cent deduction from the computed compensation, reducing it from RM165,000.00 to RM82,500.00, which was awarded to the employee. The employer sought leave under Order 53 of the Rules of Court 2012 to challenge that award. On an application for leave for judicial review the court's role is limited: it asks whether the applicant has demonstrated an arguable case fit for further consideration, rather than resolving the merits, and it examines whether the specialist tribunal's decision discloses any error of law or fact warranting the grant of leave. Considering the cause papers and the parties' written submissions, the court found no reason to disturb the findings of the Chairman of the Industrial Court and saw no error of law or fact in his conclusions, so that the proposed challenge disclosed no arguable case. The court also noted a statutory obstacle, observing that the application could in any event be dismissed in limine for non-compliance with the requirement under section 33C of the Industrial Relations Act 1967 that an award be challenged by the statutory route within the prescribed time. Concluding that the leave application had no merit and was unsustainable, the court affirmed the findings of the Industrial Court and dismissed the application with costs of RM5,000.00 payable to the employee within thirty days. The judgment is a useful illustration of the limited leave threshold in judicial review of Industrial Court awards and of the deference owed to the tribunal's findings, including its apportionment for contributory conduct.