Mohamad Shah Gubah Bin AhmadDan1. Mahkamah Perusahaan Malaysia2. Intraline Resources Sdn Bhd

  

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

 

(BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS) PERMOHONAN SEMAKAN KEHAKIMAN NO. R3(1)-25-29-2007

 

Dalam perkara permohonan oleh Mohamad Shah Gubah Bin Ahmad untuk suatu Perintah Certiorari

 

Dan

 

Dalam Perkara mengenai Akta Perhubungan Perusahaan 1967

 

Dan

 

Dalam perkara mengenai Mahkamah Perusahaan Award No. 77 tahun 2007 bertarikh 12 haribulan Januari 2007 dalam Mahkamah Perusahaan Kes No. 5/4-375/05

 

Dan

 

Dalam Perkara mengenai Jadual 1, Akta Mahkamah Kehakiman, 1964 dan Aturan 53 Kaedah-Kaedah Mahkamah Tinggi, 1980

 

ANTARA

 

MOHAMAD SHAH GUBAH BIN AHMAD

 

PEMOHON

 

DAN

 

1. MAHKAMAH PERUSAHAAN, MALAYSIA … RESPONDEN

 

PERTAMA

 

2. INTRALINE RESOURCES SDN BHD … RESPONDEN

 

KEDUA

 

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GROUNDS OF DECISION

 

This was an application for judicial review for an order of certiorari to quash two Industrial Court Awards, namely Award No. 77 of 2007 and Award No. 315 of 2007. This Court allowed the application for judicial review with costs. This was essentially a wrongful dismissal case where the Applicant was employed by the 2nd Respondent company to provide services to a third party. The contract was for a fixed term of two years. The Applicant had been demobilised before its expiry. He claimed wrongful dismissal. The Industrial Court dismissed this claim and the present application for judicial review was instituted. This Court in exercise of its review jurisdiction allowed the application to quash the two orders referred to above. After hearing further submissions from counsel, a further consequential order was made as part of the process of moulding the relief which was felt necessary in the interest of justice, given the peculiar circumstances of this application. Counsel for the Applicant argued persuasively that in the circumstances of this case this court should adopt a liberal and progressive approach in this certiorari proceeding along the lines suggested by the Federal Court in R. Rama Chandran v Industrial Court of Malaysia [1997] 1 MLJ 145. It was argued that I should make the consequential order for fair compensation to be made as part of moulding the relief in accordance with the demands of justice. I agreed that this was a suitable case for this Court to exercise this aspect of judicial review jurisdiction. Submissions were heard on this point and counsel for the Applicant and the 2nd Respondent company provided this court with their respective figures.

 

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In the result, it was ordered that the sum of RM 135,682.87 (the sum being arrived at with the consent of the parties) be paid by the 2nd Respondent to the Applicant. The sum represented 16 months back wages for the remainder of the term of his contract calculated from the date of his demobilisation, together with his other entitlements.

 

In regard to the order of certiorari, this Court, applying the principles of review jurisdiction, found that the Industrial Court had not properly directed itself to the facts and the law and had thereby committed a jurisdictional error which invited correction by judicial review. The Court had acted in breach of the “no evidence” principle and had made a decision which was technically “unreasonable” or “irrational” in the administrative law sense.

 

As for the background facts, the Applicant was employed as a Piping Supervisor under a two-year fixed term contract with the 2nd Respondent company (Intraline Resources Sdn Bhd) commencing on 12 May 2002 at monthly salary of RM6,300.00. Intraline Resources provided manpower supply services to third parties. In this case the Applicant was assigned to a company called OGP Technical Services Sdn Berhad to work at its Ethane Extraction Improvement Project in Kerteh, Terengganu. This was done pursuant to a separate manpower supply agreement between Intraline and OGP.

 

The Applicant’s contract of service was expressly made subject to OGP’s requirements and the annexed terms and conditions to his Letter of Appointment dated 1.5.2002, i.e. the “Standard Terms and Conditions for Assignment to OGP Technical Services Sdn Bhd.” The provision on “duration of contract” stipulated:

 

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“This appointment is for the duration of two (2) years from the date of commencement subject to the requirement of OGP Technical Services Sdn Berhad.”

 

Clause 1.3 of the standard terms stipulated:

 

“For assignments to the site fabrication yards, the working hours shall follow the yard’s working hours and/or to meet work schedule requirements, with a minimum of eight (8) hours per day, six (6) days per week from Monday through Saturday, tentatively 8 AM to 5 PM inclusive of one (1) hour lunch break, excluding public holidays, or as specified in the letter of appointment. The personnel is also required to perform specific services, if any, and in accordance with OGP/the Project’s required working hours for such services.”

 

By an addendum dated 29.5.2002, an additional clause was inserted:

 

“Overtime: You are entitled to claim on overtime work done subject to the approval of your project manager and/or HR Department of OGP Technical Services Bhd.”

 

There was also an addendum inserted by letter dated 1.10.2002. A provision was inserted to further explain his working hours:

 

“Working hours: Your working hours shall follow the regular working hours practised at the site/yard/Project you are assigned to for the duration of this project.”

 

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The addendum of 29.5.2002 was expressly accepted by the Applicant. It did not appear from the record whether he accepted the second addendum.

 

The Applicant was required to submit timesheets to OGP for approval, and it was on this basis that the 2nd Respondent then claimed a fee from the client i.e. OGP. It was in this connection that problems arose subsequently because the Applicant continued to submit his timesheets based on an eight-hour working day, although the OGP working hours was 10 working hours per day. The Applicant claimed overtime for the two additional hours per day. All his timesheets were not approved because of the position he took. Nevertheless, it was part of the evidence he had worked in fact for more than 10 hours per day until his demobilisation. He was last paid his salary on 30.9.2002, but he continued to work under OGP as assigned until his services were terminated on 18.1.2003. Thus, he was not paid his salary for more than three months in any event.

 

That he had in fact worked for more than 60 hours a day was confirmed by the Project Manager of the site. This Project Manager (“CLW-2”) also confirmed the timesheets were not approved by him because Applicant had submitted timesheets based on an eight-hour working day:

 

“… The reason for not approving is our contractual obligation as far as our requirement of our company with Intraline is 10 hours per day for six days per week straight time meaning our normal working hours and any extra time in excess of that would be considered as OT.

 

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The hours stated in (the timesheets) as normal hours were eight hours which was incorrect as per our contract with Intraline, the company.

 

The dispute was the two hours which the Claimant claimed as OT.

 

I confirm the total number of hours that the Claimant was working for this period.”

 

Thus the issues presented were as follows:

 

1. Whether the applicant was bound as a matter of law to follow the normal working hours at the site;

 

2. Whether he was entitled to claim overtime for the additional two hours;

 

3. Whether he was an “employee” within the definition of the Employment Act 1955 (paragraph 2 (3) of the First Schedule);

 

4. Whether as an “employee” under the Employment Act 1955, the working hours as defined under section 60 A (1) could apply to him.

 

The Industrial Court had no difficulty in regarding the Applicant as an employee within the definition in the Employment Act. Although the Applicant was earning RM7,090.15 a month, he supervised or oversaw other employees engaged in manual labour employed by the same

 

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employer. He therefore came within paragraph 2 (3) of the First Schedule of the Act.

 

Section 16A (1) reads:

 

“60A. Hours of work

 

(1) Except as hereinafter provided, an employee shall not be required under his contract of service to work –

 

(a) More than five consecutive hours without a period of leisure of not less than thirty minutes duration;

 

(b) More than eight hours in one day;

 

(c) In excess of a spread over period of 10 hours in one day;

 

(d) More than 48 hours in one week…”

 

In the context of this dispute, the applicable provisions were section 60 A (1) (b) and (c).

 

As noted above, there was no dispute that he worked more than eight hours a day.

 

The Industrial Court held in this connection:

 

“Section 60A Employment Act 1955 does provide in subsection (1) (b) and (d) in particular that an employee shall not be required to work more than eight hours in a day or more than 40 hours a week. However, the Respondent contends that subsection (1) (c) it is a spread over period of 10 hours in one day which is the case of the Claimant where he was required by OGP to work the normal working hours for 10 hours a day and whatever work done in excess of 10

 

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hours would be his overtime. Subsection (3) (b) of section 60 A Employment Act 1955 defines “overtime” to mean the number of hours of work carried out in excess of the normal hours of work to date and subsection (3) (c) of the same section defines “normal hours of work” to mean the number of hours of work as agreed between an employer and an employee in the contract of service to be the usual hours work per day and shall not exceed the limits of hours prescribed in subsection (1). From the reading of subsection (1) to section 60A, this Court is of the view that subsection (1) (c) should be read independently for reason that it does not synchronise with the other subsections (1) (a), (1) (b) and (1) (d). To read it conjunctively or together with the other three subsections (1) (a), (1) (b) and (1) (d) would render these three subsections meaningless as it is contradictory to them. Therefore, the Claimant cannot claim that his working hours could not be more than eight hours in one day under subsection (1) (b) when the normal working hours as agreed between him and his employer in the contract of service was a normal working hours of OGP/the projects working hours. “Spread over period of 10 hours” is defined under section 2 of the Employment Act 1955 to mean “a period of 10 consecutive hours to be reckoned from the time the employee commences work for the day, inclusive of any period or period of leisure, rest or break within such period of 10 consecutive hours.” This Court, thus, finds that the normal hours of working or working hours are scheduled by OGP at its EE 1 project site at Kerteh to be from 8 a.m. to 6 p.m. of 10 hours per day to be within the meaning of “spread over period of 10 hours” as defined under section 2 above. This court holds that the claimant cannot rely on section 60 A (1) (b) and (d) of the Employment Act 1955 to construe that his working hours should not exceed eight hours a day

 

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40 hours in a week in the circumstances of this case.” (See pages 24 to 25 of the first award)

 

As can be seen from the above passage, the Industrial Court came to an express finding that the 10 hour period required by OGP constituted a “spread over period of 10 hours”. The Industrial Court referred to the definition of “spread over period” and applied it to the facts. It was contended by counsel for the Applicant this finding could not stand since it was based on “no evidence”. I agreed with the submission. There was no evidence before the Industrial Court to substantiate the underlying facts which would have allowed the court’s reading of “spread over period” to stand. On the contrary, it was an express term of the contract between the Applicant and the 2nd Respondent (in law his employer) that his working hours was a minimum of eight hours a day. There was no express reference to any “spread over period of 10 hours a day”, except a vague reference to an obligation to work for OGP which working hours “shall follow the regular working hours practised at the site/yard/Project you are assigned to for the duration of this project.”

 

It requires emphasis that this reference to regular working hours practised at the site came by way of the second addendum which was not accepted expressly by the Applicant.

 

In R Rama Chandran v The Industrial Court of Malaysia, supra, referred to the “no evidence” rule and explained it as follows:

 

“… Reliance upon an erroneous factual conclusion itself offend against the principles of illegality and irrationality in enunciated by Lord Diplock in Council of Civil Service

 

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Unions & Others v Minister for the Civil Service [1985] AC 374…

 

Where there is no evidence to support the conclusion, there is necessarily an error of law in the decision arrived at (see Edwards v Bairstow…)

 

… “No evidence” does not mean only a total dearth of evidence. It extends to any case where the evidence, taken as a whole, is not reasonably capable of supporting the finding (see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750.; Lee v The Showmen’s Guild of Great Britain [1952] QB 329.), Or where, in other words, no tribunal could reasonably reach that conclusion, on the evidence.. This “no evidence” principle clearly has something in common with the principle that perverse or unreasonable action is un-authorised and ultra vires.”

 

I found on the facts of this application that the evidence taken as a whole could not reasonably support the finding of the Industrial Court that the requirement of OGP related to a spread over period, or that it was a contractual term between the applicant and the 2nd Respondent that he shall comply with any spread over period required by OGP. In any event, whatever arrangement existed between OGP and the 2nd Respondent could not be regarded as immediately binding on the Applicant unless it was a contractual term of his contract of employment between the 2nd Respondent and himself. Otherwise, the principle of privity of contract would be offended. Further, the facts of this case disclosed when the Applicant was demobilised and his contract with the

 

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2nd Respondent terminated, the applicant was not served with any show cause letter and not subject to any domestic inquiry.

 

It was wrong for the Industrial Court to provide a reason for termination for the employer where none was offered. The proper inquiry of the Industrial Court would be the reason advanced by the employer. The Court could not go into another reason or find one for the employer. See Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 2 MLJ 129.

 

Quite clearly the applicant had been unjustly terminated in his employment, and had received an unreasonable treatment by the 2nd Respondent. He had continued to work diligently beyond the 8 hours minimum that he claimed, although for several months he had not been paid any salary. He had been unjustly kept out of pocket on what was essentially a legal technicality. Given the circumstances and the time his claim had taken to proceed through the Industrial Court process and this judicial review application, it would be inequitable and unjust to subject him to a further process before the Industrial Court to claim what was due to him. It was unnecessary to have the matter referred back to the Industrial Court for another decision on what would be the appropriate compensation to be paid to him. For this reason, I was of the view the further consequential order on compensation to be paid should be made by this Court to mould the relief granted.

 

This Court therefore allowed the application for judicial review for an order of certiorari to quash the two Industrial Court Awards No. 77 of 2007 and Award No. 315 of 2007, with costs to be taxed, unless agreed. A further consequential order was made directing a sum of RM 135,682.87 (the sum being arrived at with the consent of the parties) be

 

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paid by the 2nd Respondent to the Applicant within two weeks from the date of the order, together with interest thereon from 12.8.2009 at 8% per annum until date of full realisation.

 

Dated 15th December 2009

 

Sgd

 

( MOHAMAD ARIFF BIN MD YUSOF )

 

JUDGE

 

HIGH COURT MALAYA KUALA LUMPUR

 

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COUNSELS

 

For the applicant:

 

Marina Netto

 

Messrs Christy Marina & Associates.

 

For the 2nd respondent:

 

Idris Zaidel

 

Messrs Idris Zaidel & Partners.

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