ROSLIND TAN KHENG SUAN PENANG MEDICAL COLLEGE SDN.BHD

PA-16A-1-01/2023 Kand. 37 14/06/2024 12:19:12 IN THE HIGH COURT OF PENANG APPEAL NO: PA-16A-1-01/2023 BETWEEN ROSALIND TAN KEHNG SUAN … APPELLANT AND PENANG MEDICAL COLLEGE SDN. BHD. … RESPONDENT IN THE INDUSTRIAL COURT OF PENANG IN THE MATTER OF INDUSTRIAL COURT CASE NO. 9/4-802/20 BETWEEN ROSALIND TAN KHENG SUAN … APPLICANT AND PENANG MEDICAL COLLEGE SDN. BHD. … RESPONDENT JUDGEMENT A. INTRODUCTION [1] This is an appeal by the Appellant against the whole the decision and/or award of learned Chairman of the Industrial Court that was 1 S/N cSWHavOs3028HLwgESCHIA **Note : Serial number will be used to verify the originality of this document via eFILING portal delivered on 15.12.2022. The Appellant’s claim against the Respondent for her dismissal without just cause and excuse was dismissed by the Industrial Court. The appeal herein stems from a ministerial reference made under Section 20(3) of the Industrial Relations Act 1967. B. FACTS OF THE CASE [2] The Appellant commenced her employment with the Respondent on 15.12.2009. Pursuant to a letter dated 1.10.2019, the Respondent laid down four charges of misconduct against the Appellant and suspended her with immediate effect. Another letter dated 11.11.2019 was issued with an additional charge of misconduct. On 4.12.2019, the Respondent dismissed the Appellant with immediate effect. No domestic inquiry was held prior to the Appellant’s dismissal. At the time of the Appellant’s dismissal, Appellant was the Financial Controller of the company with salary of RM12,500.00 per month. [3] The charges of misconduct against the Appellant which was laid down by the Respondent are as follows: - [a] Appellant has instructed her subordinate, “Fazril” to create fake backdated letters to create an impression that the company had follow up with the Fire Department on certain approval. However, the letters were never sent out. [b] Appellant has caused her subordinate, “Fazril” to verify suspicious invoices with notation for “Bomba Approval”. 2 S/N cSWHavOs3028HLwgESCHIA **Note : Serial number will be used to verify the originality of this document via eFILING portal [c] Appellant has failed to carry out her duties in a proper manner resulting in the 2nd extension to building No. 4A to be build without proper authorization from relevant regulatory bodies. [d] Appellant has made a phone call to “Ah Them” to delete all evidence regarding the payment to the Fire Department to procure approval on 2nd extension to building 4A. [e] Appellant asked “Fazril” and “Syed Rahmat” to offer bribe to Fire Department to obtain their approval for the renovation works done to the company’s Seberang Jaya premises. [4] The Appellant contends that throughout her 10 years of employment with the Respondent and until the time of her dismissal, she was a faithful, hardworking and dedicated employee which was evidenced by her positive annual performance reviews. The Appellant also submitted that her dismissal was unjust and wrongful when she was subjected to selective prosecution and victimization in the manner where the perpetrator of misconduct, namely “Fazril” and “Rahmat” were let off with a warning letter and were subsequently allowed to continue working with the Respondent. [5] The Industrial Court in making decision has concluded that, on the totality of the facts of this case and the evidence adduced by both parties, the Respondent had on the balance of probabilities proved all the allegations against the Appellant. The court also finds the dismissal was warranted as the Respondent could no longer repose the necessary trust and confidence in the Appellant. Given the seriousness of the acts of misconduct by the Appellant, the Court is satisfied that the Appellant was dismissed with just cause of excuse. 3 S/N cSWHavOs3028HLwgESCHIA **Note : Serial number will be used to verify the originality of this document via eFILING portal [6] Dissatisfied with the Industrial Court’s decision, the Appellant now appeal in this Court. [7] On the other hand, the Respondent has filed a Cross Appeal against some part of the award of Learned Chairman of the Industrial Court which was delivered on 15.12.2022. The Respondent’s appeal is as follows: - Notis Rayuan Balas ….. (1) bahawa keputusan oleh Pengerusi yang bijaksana di perenggan-perenggan 47 hingga 51 Awad beliau di mana Pengerusi memutuskan bahawa salah laku Perayu yang didapati selepas pemecatannya berkuatkuasa 4.12.2019 tidak harus dipertimbangkan dalam kes di Mahkamah industrial, dibatalkan. [8] After the termination of the Appellant, the Respondent further discovered the misconduct of the Appellant in transferring monies belonging to the Respondent to her personal bank account. As such, the Respondent contends and refer the Federal Court case of Maritime Intelligence Sdn Bhd v Tan Ah Gek [2021] 10 CLJ 663 that it is impossible for the Respondent to reinstate the Appellant as a Financial Controller which is a position of trust. The Respondent submitted that the appeal against the Industrial Court’s decision in paragraph 47- 51 of the award should be allowed. 4 S/N cSWHavOs3028HLwgESCHIA **Note : Serial number will be used to verify the originality of this document via eFILING portal C. PRELIMINARY OBJECTION BY THE RESPONDENT [9] The Respondent submitted that the Court should strike out the appeal as it does not have the jurisdiction to hear the appeal under Section 33C of the Industrial Relations Act 1967. The appeal herein arises from a ministerial reference in 2020 prior to the coming into force of the Industrial Relations (Amendments) Act 2020. [10] It was also submitted by the Respondent that the Award No. 2598 of 2022 (the subject of this appeal) is an award on a ministerial reference made pursuant to Section 20(3) of the Industrial Relation Act 1967 prior to the coming into force of the Industrial Relations (Amendments) Act 2020. As such, if the Appellant is dissatisfied with the Award No. 2598 of 2022. she should have filed for judicial review under Order 53 of the Rules of Court 2012 and not file the appeal herein under Section 33C of the Industrial Relations Act 1967. [11] I will now deal and determine the preliminary objection raised by the Respondent. Having going through the facts of the case, it is undisputed that the representation for an award was referred to the Industrial Court by the Minister pursuant to Section 20(3) of the Industrial Relation 1967 Act and not by the Director General. [12] Prior to the amendment made in January 2021 vide Industrial Relations (Amendment) Act 2020, any party aggrieved by a decision or award of the Industrial Court would ordinarily resort to Order 53 of the Rules of Court 2012 seeking an order of certiorari to quash such award. 5 S/N cSWHavOs3028HLwgESCHIA **Note : Serial number will be used to verify the originality of this document via eFILING portal [13] In this appeal since the ministerial reference made under Section 20(3) of the Industrial Relations Act 1967 in 2020 prior to the coming into force of the Industrial Relations (Amendments) Act 2020, the application under Section 35 of the Industrial Relations (Amendments) Act 2020 is relevant where it provides that all reference before the coming into force of the Industrial Relations (Amendments) Act 2020 shall proceed and have effect as if the principal act had not been amended by the Industrial Relations (Amendments) Act 2020. 35. Saving and transitional provisions. (1) Complaints made under section 8, disputes referred under subsection 9(1A), claims for recognition made under section 9, representations for reinstatement made under section 20 of the principal act, and all proceedings commenced or awards made before the industrial Court in relation to a reference under subsection 8(2A), subsection 20(3) and section 26 before the coming into operation of this act shall proceed and have effect as if the principal act had not been amended by this act. (2) All rules and regulations, forms, directions and letter of authorisations made, issued or granted under the principal act shall, to the extent that the rules and regulations, forms, directions and letter of authorisations are consistent with the principal act as amended by this act, continue to be in force until such rules and regulations, forms, directions and letter of authorisations are revoked or amended. (3) Any investigation, trial or proceedings done, taken or commenced under the principal act immediately before the coming 6 S/N cSWHavOs3028HLwgESCHIA **Note : Serial number will be used to verify the originality of this document via eFILING portal into operation of this act, shall be dealt with as if the principal act had not been amended by this act. [14] In light of Section 35 Industrial Relations (Amendments) Act 2020, I am of the view that the Appellant is proceed by way of judicial review application under Order 53 of the Rules of Court 2012 and not an appeal under Section 33C of the Industrial Relations Act 1967 as to challenge the award as if the Principal Act has not been amended by the Amendment Act. D. DECISION [15] Having heard the submission of both parties on the preliminary objection, I therefore strike out the Appellant’s appeal with cost of RM5,000.00 to be paid by the Appellant to the Respondent. Dated on 14th June 2024. Counsel Ang Khoon Cheong (Messrs C P Ang & Co.) for the Appellant. Choo Shi Jin & Neo Chi Chyn (Messrs Firoz Julian) for the Respondent. 7 S/N cSWHavOs3028HLwgESCHIA **Note : Serial number will be used to verify the originality of this document via eFILING portal