INDUSTRIAL COURT OF MALAYSIA
[CASE NO: 1/1-2236/19]
BETWEEN
TAN POH HUI
AND
CAIRNHILL HOTEL (M) SDN BHD
(Consolidated with Case No. 28(6)/4-1141/16 by Court Order vide Interim Award No. 1780 of 2017 dated 12 December 2017)
AWARD NO. 372 OF 2020
| CORAM | : | Y. A. TUAN EDDIE YEO SOON CHYE – PRESIDENT EN. MOHD. EFFENDY BIN ABDUL GHANI – EMPLOYEES’ PANEL PN. SARITA A/P BERAM SHAH @ RAJARAM – EMPLOYERS’ PANEL |
| VENUE | : | Industrial Court Malaysia, Kuala Lumpur |
| FILING OF FORM S | : | 14.11.2019 |
| DATE OF MENTION | : | 17.12.2019 |
| DATE OF HEARING | : | 10.02.2020 |
| REPRESENTATION | : | For the Complainant’s – Terence KM Chan & Bryan Goh Tseng Fook; M/s Lim Kian Leong & CoFor the Complainant – absentFor the Respondent’s – Vinu Kamalananthan & Nicholas Wing Juan Fung; M/s Vinu & LopezFor the Respondent’s – present |
AWARD
[1] The Complainant filed the Form S pursuant to s. 56 (1) of the Industrial Relations Act 1967 & Rule 24A of the Industrial Court Rules 1967 on 14 November 2019 in respect of a complaint of Non-Compliance in the matter of Award No. 1835 of 2019 dated 26 June 2019 in Industrial Court Case No. 28(6)/4-1138/16 (consolidated with Case No. 28(6)/4-1141/16 Tan Poh Hui v. Cairnhill Hotel (M) Sdn. Bhd. vide Interim Award No. 1780 of 2017 dated 12 December 2017) between Tan Poh Hui v. Cairnhill Hotel Sdn. Bhd.
[2] The two cases were registered separately as follows:
(a) 6/4-1138/16 Tan Poh Yee (1st Claimant)
(b) 6/4-1141/16 Tan Poh Hui (2nd Claimant)
[3] A complaint is hereby lodged by the 2nd Claimant that the provisions of the abovementioned Award in paragraph 30 have not been complied that the Respondent is to pay the Claimant a sum of RM377,600.00 through the 2nd Claimant’s solicitors Messrs Lim Kian Leong & Co. within 14 days from the date of the hereof (26 June 2019) for release to the 2nd Claimant after income tax clearance.
Statement of Case
[4] The Complainant (2nd Claimant) filed the Statement of Case on 17 December 2019 and according to the 2nd Claimant’s knowledge, the Respondent did not file a Judicial Review against the decision of the Award by the Industrial Court. By letter dated 3 July 2019 from Messrs Lim Kian Leong & Co. to Messrs J. Nee (solicitors for the Respondent) a copy of the Award was enclosed for payment of the award sum to be made.
[5] The Complainant contends that the Respondent’s refusal to comply with the Award amounts to a non-compliance with the Award. The Complainant prays that an order directing the Respondent to comply with the term of the Award.
Statement in Reply
[6] The Respondent filed the Statement in Reply on 5 February 2020. The Respondent contends that it had not deliberately failed to comply with the Award as they nor the previous solicitors Messrs J. Nee were not aware that the Award was handed down by the Industrial Court. The Respondent contends that the filing of the non-compliance complaint is pre mature and/or irregular as the Respondent was not aware of the contents of the Award. The Respondent pray that the Complainant case be dismissed.
Submissions of both parties
[7] The Complainant’s counsel sent the Award to the Respondent’s solicitors by fax (TPH2). According to the Complainant’s counsel, payment has not been made to the Complainant by the Respondent. The Respondent’s counsel referred to pp. 1 & 3 of the annexures in the Statement in Reply and submitted that the Award was not served on the Respondent’s former solicitors. The Notice of Mention as sent to the Respondent upon the filing of Form S by the Complainant. The issue is whether the non-compliance was correctly filed. However, the Respondent’s counsel inform Court that the Award is valid.
[8] Reference was made to paragraph 2.2 of the Statement in Reply. The Respondent was only aware that a non-compliance complaint was filed when a notice of mention was served on 11 December 2019. This case was fixed for mention on 17 December 2019 with the presence of Bryan Goh of Messrs Lim Kian Leong & Co. and the presence of the Respondent’s representative both Chen Whye Keat & Low Yi Voon.
Decision
[9] The Industrial Court in the case of Kesatuan Pekerja-pekerja Perkilangan Perusahaan Makanan v. Gold Coin Specialities Sdn. Bhd. [2017] 2 ILR 260 at p. 262 referred to a decision by the Supreme Court case of Holiday Inn, Kuala Lumpur v. National Union of Hotel, Bar and Restaurant Workers [1988] 1 CLJ 133 in relation the application of section 56 of the Industrial Relations Act 1967 as follows:
“Now, section 56 is concerned with the enforcement in a summary manner of an award made by the Industrial Court or of a collective agreement which has been taken cognisance of by the court under section 17 after a complaint has been lodged as to its non-compliance. The non-compliance of a term of the award or collective agreement must exist as an antecedent fact before the Industrial Court can exercise its power contained in subsection (2) thereof. It is therefore, a condition precedent to the exercise of those powers that there should be in existence a breach or non-observance of a term of the award or collective agreement. There must be satisfactorily established by the complainant.”
[10] The Supreme Court decided in the case of Dragon & Phoenix Berhad v. Kesatuan Pekerja-pekerja Perusahaan Membuat Tekstil & Pakaian Pulau Pinang & Anor. [1990] 2 ILR 515 at p. 616 as follows:
“In a complaint of non-compliance with any term of a collective agreement or award under section 56 of the Industrial Court should, as a general rule, look at the terms of the contract by confining itself to within the four walls of the collective agreement or award and decide whether the term has or has not been complied with. It is purely enforcement function.”
[11] The Court in handing down the Award is unanimous in its decision having taken into account the submissions by both parties. In arriving at this decision, the Court has acted with equity and good conscience and the substantial merits of the case without regard to the technicalities and legal form as stated under section 30 (5) of the Industrial Relations Act 1967.
[12] Pursuant to the powers of the Court under section 56 (2) (a) of the Industrial Relations Act 1967 and upon receipt of the complaint, the Court hereby makes an order directing the Respondent to comply with the award. In section 56 (3) of the Industrial Relations Act 1967, any person who fails to comply with an order of the Court under subsection (2) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding RM2,000.00 or to imprisonment for a term not exceeding one year or to both, and a further fine of RM500.00 for every day during such offence continues.
[13] The order of the Court shall be in Form T. Rule 24 A (2) of the Industrial Court Rules 1967 reads as follows:
“When the Court makes an order of non-compliance against any party and such order has not been complied with, the Registrar of the Court may, at the request of either party, send a certified copy of the order to the Senior Assistant Registrar of the High Court or the Registrar of the Sessions Court, as the case may be, and the said Senior Assistant Registrar or the Registrar shall cause a copy of such order to be recorded and thereafter the said order shall, for all purposes, be enforceable as a judgement of the High Court or the Sessions Court in accordance with the Rules of the High Court or the Sessions Court.”
[14] The order of compliance is hereby allowed. The Court unanimously orders the Respondent to pay the Complainant the sum of RM377,600.00 forthwith.
HANDED DOWN AND DATED THIS 12TH DAY OF FEBRUARY 2020
(EDDIE YEO SOON CHYE)
PRESIDENT
INDUSTRIAL COURT MALAYSIA[2020] 2 LNS 0372