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TitleSEK 20 AWARD 18257
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Page 1

INDUSTRIAL COURT OF MALAYSIA

CASE NO. 12/4-1849/05

BETWEEN

ENCIK ALBERT LIM TOW SUN

AND

LYSAGHT MARKETING SDN. BHD.

AWARD NO. 140 OF 2013

Before :



Y.A. TUAN GULAM MUHIADDEEN
BIN ABDUL AZIZ

-



CHAIRMAN

Venue : Industrial Court, Malaysia
Kuala Lumpur

Date of Reference : 24.11.2005

Dates of Mention : 21.02.2006; 21.06.2006; 07.08.2006;
07.02.2007; 06.08.2007; 08.10.2007;
25.10.2007; 07.04.2009; 28.05.2009;
17.08.2009; 25.08.2009; 07.09.2009;
25.01.2010; 25.02.2010; 16.03.2010;
20.04.2010; 25.05.2010; 14.06.2010;
29.06.2010; 29.07.2010; 11.08.2010;
08.102010; 01.11.2010; 15.11.2010;
29.11.2010; 10.01.2011; 17.02.2011;
22.07.2011; 13.02.2012; 13.03.2012;
17.04.2012; 24.04.2012; 23.05.2012;
06.06.2012

Date of Hearing : 09.01.2012

Representation :

:

Ms. Kamini from Messrs Bodipalar Ponnudurai
Nathan, Counsel for the Claimant

Ms. Kavitha from Messrs Ramadass &
Associates, Counsel for the Company



Page 2

Reference:

This is a reference made under section 20(3) of the
Industrial Relations Act 1967 arising out of the dismissal of
ENCIK ALBERT LIM TOW SUN (“the Claimant”) by LYSAGHT
MARKETING SDN. BHD. (“the Company”).

AWARD


Introduction

This case was referred by the Honourable Minister of Human

Resources to the Industrial Court regarding the dismissal of Albert

Lim Tow Sun (“the Claimant”) by Lysaght Marketing Sdn. Bhd.

(“the Company”) on 29 January 2003. The reference was

made under Section 20(3) of the Industrial Relation Act 1967

(“IRA 1967”)was dated 24 November 2005 and was received by the

Court on 23 December 2005.

Brief Facts of the Case

The Claimant commenced employment with Lysaght

Galvanising Services Sdn. Bhd. as an Engineer with effect from

1 August 1988 vide a letter of appointment dated 28 July 1988.

Prior to 1 August 1991 and before becoming a public listed

Company, Lysaght Galvanising Services Sdn. Bhd. undertook

restructuring exercise and in that process the Claimant and some

other staff within the group were transferred to Lysaght Marketing

Sdn. Bhd., its Sales and Marketing arm.



Page 8

The Claimant then wrote to the Industrial Relations

Department on 30th April 2003, copied to Mr. Chew Kar Heing,

Director, Lysaght Galvanized Steel Berhad, raising questions of law

and requesting that the representation be referred to the Court to

decide on the representation.

The Claimant's representation under Section 20 of the

Industrial Relations Act was then referred to this Honourable Court

for a decision.

Before the commencement of the Hearing, the Claimant's

Counsel made an application on the 25th February 2010 to join

Lysaght Galvanized Steel Bhd. to the Industrial Court proceedings

and the Company objected to the said Joinder Application due to the

fact that the Claimant was intentionally delaying and abusing the

court process. Following submissions made by respective Counsels,

this Court vide Award 167 of 2011 dated 8th February 2011

dismissed the Claimant's application to join Lysaght Galvanized as a

party to the proceedings. The matter then proceeded in the Court

by way of hearing.

The Issue

In the course of the hearing on 9th and 10th of January 2012

during the cross-examination of the Claimant, the Claimant was

questioned to which Company he was seeking to reinstatement. The

questions and answers are as follows;

Q3 : Refer to paragraph 10 [of the Statement of Case], which

Company are you asking to be reinstated to?

A : To the Company which pays my salary, Lysaght Galvanized

Steel.



Page 9

Q4 : Refer to paragraph 1 of Statement of Case, please read to

the Court.

A : Read by the Claimant.

Q5 : Which is the Company stated here?

A : Lysaght Marketing Sdn. Bhd.

Q6 : Refer to page 1 of COB-1; who is the employer who

dismissed you as per this heading?

A : Lysaght Marketing Sdn. Bhd.

Q7 : You agree with me that you are applying for reinstatement

to a Company which is different from the Company stated in

the Minister's reference.

A : Yes.

Q8 : P; There is no basis for you to apply for reinstatement to

Lysaght Galvanized Steel as it is not your employer.

A : I disagree.

Q9 : You are still maintaining reinstatement to Lysaght

Galvanized Steel Sdn. Bhd.?

A : Yes.

The Learned Counsel for the Company, Mr. Ramadass was of

the view that as the position taken by the Claimant during the cross-

examination that he was seeking reinstatement to a position he was

not holding at Lysaght Galvanized Steel Bhd., it was found no longer

relevant to continue with the cross-examination since the Claimant

was seeking a remedy which this Court would not have the power to

grant.

Page 16

“Reinstatement is the primary remedy in industrial law and

an acceptance of it or an unreasonable rejection of it by the

workman must be treated as having put an end to the

dispute.”

On the issue that the Industrial Court has to apply equity and

good conscience, this Court is bound by the rules of pleading as

stated by the Federal Court in Ranjit Kaur S. Gopal Singh v Hotel

Excelsior (M) Sdn. Bhd. [2001] 8 CLJ 629 where it was held as

follows;

��...... However, as rightly pointed out by Learned Counsel
for the respondent s.30(5) of the Act cannot be used to

override or circumvent the basic rules of pleading. The

Industrial Court, like the civil courts must confine itself to

the four corners of the pleading. This had been held to be

so by this court in Rama Chandran which are as follows:

It is trite law that a party is bound by its pleadings. The

Industrial Court must scrutinise the pleadings and identify

the issue, take evidence, hear the parties' arguments and

finally pronounce its judgment having strict regards to the

issues.”

Based on the above authority, it is clear that the phrase

“equity and good conscience” relates only to application of rules and

procedures and does not give powers to act outside the four corners

of the IRA. As such, the fact that the Claimant is claiming for

reinstatement against a company not named in the proceeding will

be giving the Court the jurisdiction to act outside the four corners of

the Act which jurisdiction the Court does not have.

��

Page 17

Conclusion

From the facts of this case, the Claimant has clearly stated

that he is seeking for reinstatement to a Company which is not a

party to this proceedings and therefore the Industrial Court has no

jurisdiction to grant the Claimant the remedy that he is claiming. As

such the Claimant has abandoned his claim for reinstatement and

therefore the Court has ceased to have jurisdiction over the matter.

For these reasons, there is no necessity for this Court to inquire and

decide on the Claimant's claim of constructive dismissal.

The claim is hereby dismissed.

HANDED DOWN AND DATED 16 JANUARY 2013.

( GULAM MUHIADDEEN BIN ABDUL AZIZ )
CHAIRMAN

INDUSTRIAL COURT
KUALA LUMPUR

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