EVERSENDAI CONSTRUCTIONS (M) SDN. BHD. SAVITHRI A/P VELLO

EVERSENDAI CONSTRUCTIONS (M) SDN. BHD. SAVITHRI A/P VELLO

The Court dismissed the appeal and upheld the High Court's certiorari because the Industrial Court reduced back-wages by 70% without any evidence or admission of post-dismissal earnings and failed to apply the legal shift in evidential burden; the 70% deduction was therefore legally erroneous and irrational and amenable to judicial review.

Citation
A-01(A)-639-11/2021 (Mahkamah Rayuan)
Parties
Appellant: Eversendai Construction (M) Sdn Bhd; Nominal Party: Mahkamah Perusahaan Malaysia; Respondent: Savithri A/P Vello
Court
A
Jurisdiction
Malaysia
Judgment Date
5 September 2022
Case Number
A-01(A)-639-11/2021 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (judicial Review) / Appeal (court of Appeal)
Outcome
Appeal dismissed
Legal Topics
Constructive Dismissal, Back Wages, Judicial Review, Burden of Proof, Certiorari, Discretion of Tribunal
Source Language
Malay/English
Industrial Relations Employment Law Administrative Law Constructive Dismissal Back Wages Judicial Review Burden of Proof Certiorari +1 more

Case Brief

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Parties

Eversendai Construction (M) Sdn Bhd

Appellant

Mahkamah Perusahaan Malaysia

Nominal Party

Savithri A/P Vello

Respondent

Procedural Posture

Civil Appeal (judicial Review) / Appeal (court of Appeal)

Legal Issues

  1. 1 Whether the Industrial Court lawfully deducted 70% from back-wages absent evidence of post-dismissal earnings
  2. 2 Whether the evidential burden on post-dismissal employment shifts to the employer after the employee testifies to unemployment
  3. 3 Whether an Industrial Court's discretionary scaling down is amenable to judicial review when premised on no evidence

Ratio Decidendi

The Court dismissed the appeal and upheld the High Court's certiorari because the Industrial Court reduced back-wages by 70% without any evidence or admission of post-dismissal earnings and failed to apply the legal shift in evidential burden; the 70% deduction was therefore legally erroneous and irrational and amenable to judicial review.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs of RM10000 (subject to allocator)
  • Appellant to pay RM144200 to Respondent through her solicitors within one month from judgment (on or before 5 October 2022)