Administrative Law: Judicial review - Certiorari - Application to quash award of Industrial Court ('IC') - IC decided dismissal of respondent on charge of sexual harassment without just cause and excuse - Employer claimed IC made error of law or fact in said decision - Whether decision of IC based on overall evidence and application of correct principles of law - Whether decision of IC occasioned a miscarriage of justice - Whether there were valid grounds to quash said decision - Industrial Relations Act 1967, s 20(3)

Labour Law: Industrial Court - Decision - Reinstatement of respondent - Respondent found not guilty of charge of sexual harassment and awarded reinstatement as employee with employer - Whether court made any error of law in award of reinstatement - Whether court had considered all relevant facts and circumstances in awarding reinstatement - Whether remedy of reinstatement justified - Industrial Relations Act 1967, s 20(1)

The respondent was an employee of the applicant. Pursuant to a complaint of sexual harassment received from another employee against the respondent, the respondent was issued a show cause letter for an explanation on the matter. Having considered the respondent's explanation and finding it to be unacceptable, the applicant directed the respondent to attend a domestic inquiry. Based on the evidence at the inquiry, the notes of proceedings and finding of the panel of inquiry, the applicant arrived at a decision to terminate the respondent's services. Dissatisfied, the respondent lodged a complaint under the Industrial Relations Act 1967 ("IRA"). Subsequently, the dispute was referred to the Industrial Court ("IC") for adjudication. At the end of the hearing, the IC Chairman ("ICC") made a finding that the charge against the respondent had not been established on a balance of probabilities and decided that the dismissal of the respondent was without just cause and excuse. Accordingly, the ICC ordered the reinstatement of the respondent to his former position and awarded him backwages. Hence, the present application for judicial review by the applicant for an order of certiorari to quash the award of the IC, contending that the ICC had made a serious error of law or fact in his decision and award of reinstatement.

Held (dismissing the applicant's application with costs):

(1) In the present case, the decision of the ICC was based purely on an analysis and evaluation of the overall evidence and the application of the correct principles of law. Thus, the IC had not made any serious error of law or fact or misdirected itself on the evidence in arriving at its decision. The ICC had rightly performed his role under s 20(3) IRA. The decision of the ICC did not occasion a miscarriage of justice. Accordingly, there were no valid grounds to quash the decision of the IC by an order of certiorari. (paras 26-27)

(2) In view of 20(1) IRA, there was no justification for the applicant's contention that the ICC had committed an error of law in awarding reinstatement of the respondent. The respondent had vindicated himself of the serious charge of sexual harassment. Following that, the ICC had correctly considered all the relevant facts and circumstances and the factual scenario of the case in deciding on whether reinstatement was the most appropriate remedy. It was also neither a perverse nor irrational decision unsupported by any evidence that warranted interference by the present court. The applicant's application was accordingly dismissed. (paras 28-30)

Case Commentaries

• An Industrial Court award cannot be appealed. However, a party dissatisfied with an award may file an application with the High Court for judicial review. The High Court does not look at the facts of the case but the decision-making process used by the Industrial Court. Where the High Court finds that the lower level tribunal has made an error of law, it has the power to issue an order of certiorari to quash the Industrial Court's award.

• It has been said on a number of occasions in the High Court and other superior courts that, "It can be gleaned from the authorities that in order to succeed in an application for judicial review the onus is on the applicant to show, inter alia, that the Industrial Court had:

  1. Committed an error of law in arriving at its decision; or
  2. Reached an unreasonable decision by taking irrelevant matters into consideration or failing to take relevant matters into consideration; or
  3. Made a decision that was so absurd or perverse that no reasonable person or tribunal so circumstanced would have reached that decision; or
  4. Committed procedural impropriety by failing to adhere to procedure prescribed by law or to principles of natural justice.

• Sexual harassment is considered a serious form of misconduct which warrants dismissal. Employers are encouraged to introduce a variety of measures to try to prevent incidents of sexual harassment and to put in place a system whereby victims can make a report and be confident that a thorough investigation will take place and action will be taken against the harasser if there is adequate evidence that he is guilty of the offence.

• Claims of sexual harassment are exceedingly difficult to investigate. Furthermore, even where an employer has reasonable evidence at the time of dismissal that a harasser is guilty, by the time a dispute over the dismissal of the harasser reaches the Industrial Court the evidence may be weakened by the fact that the victim may refuse to give evidence in open court out of embarrassment.

• Employees who claim that they are victims of sexual harassment must be informed of the importance of keeping any evidence that sexual harassment has occurred. For instance, if there have been a series of telephone text messages, the victim should carefully keep the messages. If the victim were to keep the alleged harassers messages but delete her replies, this would be considered suspicious behaviour on her part.

• Credibility of witnesses plays an important part of assessing which party, when there is a dispute over certain events, is telling the truth. When an alleged victim of sexual harassment fails to report the harassment immediately after the events, and waits some considerable time to do so without any acceptable reason for the delay, the court may tend to disregard her version of events.

• When the Industrial Court finds that an employee has been dismissed without just cause or excuse, the court has the power to choose the appropriate remedy, ie reinstatement or compensation in lieu of reinstatement. The superior courts are, on the whole, unlikely to interfere with this decision as it is well within the authority of the Industrial Court.

Case(s) referred to:

Harpers Trading (M) Sdn Bhd v. National Union of Commercial Workers [1990] 1 MELR 34; [1991] 1 MLJ 417; [1991] 1 CLJ 159 (refd)

Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia & Anor [1995] 1 MELR 1; [1995] 3 MLJ 369; [1996] 4 CLJ 687; [1996] 3 AMR 3693 (refd)

Malayan Banking Bhd v. Association of Bank Officers, Peninsular Malaysia & Anor [1988] 1 MELR 8; [1988] 3 MLJ 204; [1988] 1 CLJ 183 (refd)

Menara PanGlobal Sdn Bhd v. Arokianathan a/l Sivapiragasam [2006] 1 MLRA 496; [2006] 3 MLJ 493; [2006] 2 CLJ 501 (refd)

Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 2 MLRA 23; [1995] 3 MLJ 537; [1995] 4 CLJ 449; [1996] 1 AMR 049 (refd)

Petroliam Nasional Berhad v. Nik Ramli Nik Hassan [2003] 1 MELR 21; [2004] 2 MLJ 288; [2003] 4 CLJ 625 (refd)

Syarikat Kenderaan Melayu Kelantan Bhd v. Transport Workers Union [1995] 1 MLRA 268; [1995] 2 MLJ 317; [1995] 2 CLJ 748; [1995] 2 AMR 1601 (refd)

Teh Khian Woei v. Citibank Berhad [2011] MELRU 133(refd)

Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd And Another Appeal [1995] 1 MLRA 412; [1995] 2 MLJ 753; [1995] 3 CLJ 344; [1995] 2 AMR 2145 (refd)

Legislation referred to:

Employment Act 1955, s 2

Industrial Relations Act 1967, s 20(1), (3)

Rules of Court 2012, O 53

Counsel:

For the applicant: Suganthi Singam (Nadia Abu Bakar with her); M/s Shearn Delamore & Co

For the respondent: S Shanker (Juanita Chua with him); M/s Shanker & Arjunan