Unfair dismissal: Pleading reinstatement but hoping for monetary compensation

COMMENT | The distinctive feature of Section 20(1) of the Industrial Relations Act 1967 (IRA) is the provision requiring the unfairly dismissed claimant to pray for reinstatement into his former position before the grievance may be adjudicated. 

The above section is reproduced below:

"Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the director-general to be reinstated in his former employment; the representations may be filed at the office of the director-general nearest to the place of employment from which the workman was dismissed."

The key words are "make representations in writing to the Director-General to be reinstated in his former employment". Whether the Industrial Court should seize, with jurisdiction, to adjudicate a grievance when the claimant does not plead for reinstatement or desires reinstatement, has remained an unresolved issue and sadly, the recently tabled amendments to the IRA in Parliament failed to address this pertinent procedural issue.

It is common for the company's counsel to raise the issue that since the claimant did not plead reinstatement, the Industrial Court lacks jurisdiction to determine the matter.

It is interesting to note that there are numerous conflicting awards of the Industrial Court on this issue. In some cases, the courts have held that where reinstatement is not pleaded or desired, the Industrial Court shall cease to have any jurisdiction to determine the representation. While in other cases, it was held that the omission to plead reinstatement does not preclude the Industrial Court from hearing and determining the case.

The confusion was caused by the two conflicting High Court’s decision in Holiday Inn, Kuching v Lee Chai Siok Elizabeth (1992) and The Borneo Post Sdn Bhd v Margaret Wong (2001). In Holiday Inn, Kuching’s case it was held that "the legislature intended that recourse to the Industrial Court is only in respect of reinstatement and once reinstatement is no longer applied for, the Industrial Court ceases to have any more jurisdiction". However, in The Borneo Post’s case, the High Court expressed an opposite view where it was stated inter alia, that the failure of the claimant to plead reinstatement in the statement of case did not affect the threshold jurisdiction of the Industrial Court.

The Court of Appeal had, on two separate occasions - Malayan Banking Bhd v Mohd Bahari bin Mohd Jamli @ Mohd Jamal (2003) and in Lim Eye Thun v Majlis Peguam Malaysia & Anor (2010) - the opportunity to express its opinion on this issue, but left it without any opinion simply because in both these cases the concern before the court was not about the issue of reinstatement under Section 20(1).

Hence, this issue remains unresolved and the problem lies mainly because Section 20(1), as noted above, only mentioned reinstatement as the remedy with no provision for an alternative remedy of monetary compensation.

As this important issue had been "overlooked" by the legislature in its recent proposed amendment to the act, the hope now is with the superior courts to state its opinion on this matter, even by way of an obiter.

Unless and until the above is resolved, the claimant who desires monetary compensation instead of reinstatement, must plead reinstatement and maintain this claim during trial in the court, but hope for monetary compensation when the court finds reinstatement impracticable in his case.

This is not to encourage the claimant to be untruthful or dishonest in his claim but just to ensure that his representations under Section 20(1) are not objected to or struck off on mere procedural technicalities. This would certainly make nonsense of the dictum that "he who comes to equity must come with clean hands".

Common sense and logic would dictate that it would be unfair to compel a claimant who had settled comfortably in his new employment, to resign and return to his previous position in the event the court finds his dismissal to be unfair.

In fact, the law requires the claimant not to remain idle, but to seek employment elsewhere while his case is pending adjudication in the court. Hence, in most cases, the claimant would desire monetary compensation and not reinstatement for unfair dismissal.

However, the above conflicting authorities of the court is encouraging the claimant to be untruthful in his claim, i.e. to plead reinstatement, but hope for monetary compensation simply to avoid his claim being objected to or struck out on a procedural technicality.

ASHGAR ALI ALI MOHAMED is a law professor at the International Islamic University Malaysia.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.