industrial court malaysia - Malaysian Legal and Tax Information Centre
industrial court malaysia - Malaysian Legal and Tax Information Centre industrial court malaysia - Malaysian Legal and Tax Information Centre
employee on the one hand, and interest of the employer including the consideration of discipline in the establishment, on the other, require to be duly safeguarded. This is necessary in the interest of both security of tenure of the employee and smooth and harmonious working of the establishment. Legitimate interest of both of them have to be kept in view, if the order is expected to promote the desired objectives of industrial peace and maximum possible production. Proper balance has to be maintained between the conflicting claims of the employer and the employee without jeopardising the larger interests of industrial peace and progress”. The Court at this juncture would like to reiterate what it observed in the case of Teh Cheng Hock v Lilly Industries Sdn Bhd, Award 209 of 2010, that in making its decision “the Court has to bear in mind the need to maintain this proper balance between the conflicting claims. The reality of the present day situation is that whilst it is true that it was intended that the primary remedy for unjust dismissal is reinstatement, it cannot be denied that the reality is that it is no longer the usual remedy”. In the oft quoted case of Nestle Food Storage (Sabah) Sdn. Bhd. v. Terrence Tan Nyang Yin [2002] 1 ILR page 283 (Nestle case) the Industrial Court (Y.A. Lim Heng Seng, since retired) made a pertinent observation that reinstatement though being the primary remedy under the law, was no longer the usual remedy and that there were valid reasons for this. Making reference to the Court of Appeal decision of Koperasi Serbaguna (quoted above) in which the Court of 20
Appeal had observed that in industrial jurisprudence, reinstatement is the usual or primary remedy, Y.A. Lim Heng Seng (at that time) made the observation that the principle that reinstatement is the primary remedy must “be seen in the context of the statutory emphasis on expedition in the conciliation process and the stipulation of the statutory aspiration for the conclusion of the adjudication without delays and where practicable within 30 days of the reference to the Court. It cannot be gainsaid that Parliament did not contemplate that the whole process will take too much time, and that hence the expediency of the remedy of reinstatement would not be negated by long delays in the dispute resolution processes provided by the Act”. He went on to observe that “in practice, reinstatement in industrial adjudication is no longer the normal, or the usual and the general remedy regularly granted by the Court”. Hence in making its decision the Court has to bear in mind the need to maintain this proper balance between the conflicting claims. The reality of the present day situation is that whilst the primary remedy for unjust dismissal is reinstatement, it cannot be denied that it is no longer the usual remedy. As observed by this Court in the case of Teh Cheng Hock v Lilly Industries Sdn Bhd, Award 209 of 2010: 21
- Page 1 and 2: INDUSTRIAL COURT MALAYSIA CASE NO:
- Page 3 and 4: The Pleadings The Pleadings in this
- Page 5 and 6: Bjorn Magnus Kopperud to him (page
- Page 7 and 8: We wish you well in your further un
- Page 9 and 10: 'misbehaviour', 'inappropriate beha
- Page 11 and 12: Decision on the First Issue The bur
- Page 13 and 14: It was argued on behalf of the Clai
- Page 15 and 16: The principle in Han Chiang appears
- Page 17 and 18: Third Issue: If the dismissal was w
- Page 19: the relevant factors into considera
- Page 23 and 24: gainsaid that this is a very senior
- Page 25 and 26: In Robert John Reeves v Southern Ba
- Page 27 and 28: was only reasonable that the first
employee on the one h<strong>and</strong>, <strong>and</strong> interest of the employer including the<br />
consideration of discipline in the establishment, on the other, require to be duly<br />
safeguarded. This is necessary in the interest of both security of tenure of the<br />
employee <strong>and</strong> smooth <strong>and</strong> harmonious working of the establishment. Legitimate<br />
interest of both of them have to be kept in view, if the order is expected to<br />
promote the desired objectives of <strong>industrial</strong> peace <strong>and</strong> maximum possible<br />
production. Proper balance has to be maintained between the conflicting claims<br />
of the employer <strong>and</strong> the employee without jeopardising the larger interests of<br />
<strong>industrial</strong> peace <strong>and</strong> progress”.<br />
The Court at this juncture would like to reiterate what it observed in the case of<br />
Teh Cheng Hock v Lilly Industries Sdn Bhd, Award 209 of 2010, that in<br />
making its decision “the Court has to bear in mind the need to maintain this<br />
proper balance between the conflicting claims. The reality of the present day<br />
situation is that whilst it is true that it was intended that the primary remedy for<br />
unjust dismissal is reinstatement, it cannot be denied that the reality is that it is<br />
no longer the usual remedy”.<br />
In the oft quoted case of Nestle Food Storage (Sabah) Sdn. Bhd. v. Terrence<br />
Tan Nyang Yin [2002] 1 ILR page 283 (Nestle case) the Industrial Court (Y.A.<br />
Lim Heng Seng, since retired) made a pertinent observation that reinstatement<br />
though being the primary remedy under the law, was no longer the usual remedy<br />
<strong>and</strong> that there were valid reasons for this. Making reference to the Court of<br />
Appeal decision of Koperasi Serbaguna (quoted above) in which the Court of<br />
20
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