Speech by Dato' Jalaldin b Hussain (Chairman Industrial Court, Malaysia (Rtd)) & Tuan Mohd Khalid Atan (President, MTUC), given in Labour Law Seminar held by Legal Plus Sdn. Bhd (www.legalplus.com.my) on Apr 10, 2015

2.  NORMAL PROCEDURE complaint – investigate – DI – Dismiss
 Complaint & investigation – as per part 2.
 DOMESTIC INQUIRY (DI)
 See section 14(1) EA 1955.
 - earning not more than RM 2000.
 - conduct inconsistent with the fulfilment of express or
implied condition of his service.
 See-Holiday Inn’ case (Award no 255 0f 1990 )
 And Said Dharmalingam v Malayan Breweries
 (Malaya) Sdn Bhd [1997] 1 CLJ 646.
 See also Article 41 Code of conduct for Industrial Harmony.
 If no DI company can still adduce evidence at trial in
Industrial Court to show dismissal was with just cause and
 excuse-Milan Auto Sdn Bhd v Wong Sen Yen [1995] 4 CLJ
449 and Wong Chee Hong v Cathay Organisation (M) Sdn
Bhd [1988] 1 CLJ (Rep ) 298.

3.  Requirements;
 Hj Ali Hj Othman v Telekom Malaysia Berhad
 [2003] 3 CLJ 310 not rigit as a formal trial.
 a Sufficient notice given-Awd no 124 of 2011
 b .CREU –Awd no 64 of 2011.
 c .Charge not defective –Awd no 1687 /2006.
 d .Plea – unequivocal – Awd no 856 /2011.
 e .Right to cross examine-Awd no 1312/2012.
 f . Impartial Panel=Awd no 1875 / 2008.
 g .Notes accurate- Plaintree Wood Products v
Mahkamah Perusahaan Malaysia and Muhammad
Safarudin Chew no R1-25-42-2005.
 h .Decision not perverse-Awd no 64 /2010.

4.  When to start ;
 Upon receiving reference letter ;
 1.get/open file
 2.ascertain reason for dismissal
 3.who decide to dismiss
 4.who recommended (any DI )
 5.parties and documents involved
 6.compliance with company’s procedure
 7.availability of witnesses/documents
 8.related issues
 9 .assessment

5. 1.Ascertain facts not in dispute
2.Compliance with legal requirement
3.Claimant committed misconduct
4.Claimant’s explanation unacceptable
5.Misconduct serious / grave
6.How misconduct affected company
7.Finacial loss if any.

6.  Decide whether to challenge ministerial
reference based on available documents
 No legal issues /abuse of proses
 No challenge – refer MEF / counsel
 Get file and enter appearance at Industrial
Ct.
 File forms A and B
 Court informs mention / hearing date

7.  SOC must contain comprehensive and relevant
facts and arguments of claimant’s case.
 It forms the basis of claimant’s case
 It binds the claimant to issues pleaded
- see: R Ramachanran [1997] 1 MLJ145; and
Ranjit Kaur S Gopal Singh [2010]8 CLJ 629
 Must confine to four corners of pleading
 Claimant will later engage / change counsel and
apply to amend pleading after your reply

8.  Form J –to reply within stipulated time.
 Study SOC
 Reply to issues raised
 First establish disputed /undisputed facts
 Whether complaint made within 60 days
 Prepare documentation and statement of
persons named in SOC and person in support
thereof / related documents to be filed
later.

9.  Judicial discretion to grant or refuse leave to amend
SOC / SIR
 Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors
[1983] 1 MLJ213- Federal Ct
 Whether application bona fide
 Whether it prejudice the other party
 Whether it changed the character of the claim
 See the following cases
i. Dr Soo Fook Meng [2001] 2 MLJ 193
ii. Matsui Sdn BHd [2003] 1 ILR 658
iii. Poovan Sinnasamy [2012] 2 LNS 1430
iv. Jasbir Singh v UMW Toyota [2013] 2 ILR 342
 See Practice Note no 2 of 2010 application to amend
pleadings
 SOC /SIR /Rejounder under section 29 (g) IRA 1967

10. * Claimant may or not file a rejoinder
Rule 11(1) Industrial Court Rules
* It must relate to SIR only –Rule 11(2)
*see-Malayan Banking Berhad v Gavin Ong
Chen Hung [2003] ILR 127
application allowed as no new issues raised
* If new issues raised object or request to be
allowed to reply.
* Objection on same grounds as amendment to SIR
see Biopro (M) Sdn Bhd [2003] 1 CLJ 191.

11.  Practice Note No : 1 of 2003 –guidelines
 Preparation : should be done when complaint
made /as soon as possible/investigation:
1. identify role of witness
2. what claimant alleged
3. chronology of events (date/ time)
4. relate with others to support
5. documents to produce / identify
6. Get to attest in case cannot be
found
7. what to disclose ?

12.  Try to relate in a Chronological order
 When ,who did what ,claimant’s role
 Why is it wrong so to do
 Were you a participant in the misconduct
 Refer to witness statement
 Additional question – make sure answer
 Get witness to explain / clarify

13.  Will go into detail / technicalities- CL
counsel
 Make sure witness able to understand
 Guess what will be asked
 Consistency - documents/ other witness
 Request to clarify question – buy time
 Do not answer / commit if not sure
 Inconsistencies there will always be
 Must justify decision

14.  Whether need to clarify
 Contradiction need be clarified
 Inconsistencies need not
 Cannot leave open to 2 or more
interpretations
 Must clarify that cl and cl alone responsible
 Must explain inconsistencies / contradiction

15.  Refer notes earlier;
 Points to note ; avilability of witness and
1. procedural requirement
2.notes verbatim and maker available.
3.decision making proses- findings
4.perverse decision – it must be based on
evidence adduced at DI
5.format for decision grounds.
6.recomendation – on finding of guilt only
7.See Federal Court decision 10.12.2014
MAS v Wan Sa’adi b Wan Mustafa.