Q. I have just received a notice of mention from the Industrial Court. What is the Industrial Court?
A. The Industrial Court is a statutory tribunal established under the S.21 of the Industrial Relations Act 1967. It was set up to hear disputes between employees and their employers over rights and obligations that arise from the employment relationship and from the provisions of the Industrial Relations Act 1967. Most of the cases heard by the Industrial Court are claims by individual employees that the employee had been unjustly dismissed by his or her employer. The Industrial Court also hears cases where the grievance of the individual employee is taken up by his or her trade union against the employer and disputes over collective agreements.
Q. What is the difference between the Industrial Court and the Labour Court?
A. While the Industrial Court deals with individual disputes arising from the employer-employee relationship (such as dismissals) and trade disputes between trade unions and employers (such as transfers, collective agreements) and breaches of rights and obligations imposed under the Industrial Relations Act 1967, the Labour Court deals mainly with recovery of wages and other monies and employment benefits provided to employees under the Employment Act 1955 such as overtime pay, maternity allowance, salary in lieu of notice of termination and termination benefits. The “Labour Court” is not a statutory tribunal like the Industrial Court but refers to the hearing conducted by a Labour Officer of the Labour Department into complaints by employees. Employees whose monthly wages are RM1, 500 and below and other categories of employees who are entitled to the benefits in the Employment Act 1955 can file their claims in the Labour Court. Employees who fall outside the scope of the Employment Act 1955 but whose monthly salary does not exceed RM5, 000 may also seek the assistance of the Labour Court for recovery of salary or other monies due and payable by their employers under their individual contracts of service.
Q. I have been dismissed. How do I make a claim against my employer in the Industrial Court?
A. An employee does not lodge a claim directly with the Industrial Court. If the employee believes that he or she had been dismissed unlawfully or without just cause or excuse he or she has to personally go to the office of the Industrial Relations Department (which is under the Ministry of Human Resources) nearest his workplace where the employee would be asked to make his or her representations. At the Industrial Relations Office, the employee would be asked to fill up a form, “Borang S.20” giving all particulars of the dismissal. The Industrial Relations Office would arrange for a conciliation meeting at the Industrial Relations Office to be attended by the employee and employer to explore an amicable settlement. If there is no settlement, the dispute would be escalated to the Minister of Human Resources for his decision on whether the case should or should not be referred to the Industrial Court for a hearing.
Q. Is there a time limit for making an unjust dismissal representation to the Industrial Relations Department?
A. The time limit for making an unjust dismissal representation to the Industrial Relations Department is 60 days from the date of dismissal. In a case where notice of termination is served, the 60 days period begins to run from the date of expiry of the notice period. For example, Mr. X is given one month's notice of termination on 1.1.2008. The notice would expire on 1.2.2008 and the 60 days period begins to run from 1.2..2008.
Q. How long do I have to wait before I am called for the conciliation meeting?
A. This depends very much on the Industrial Relations Department but normally parties will be called to attend a conciliation meeting within 1 to 3 months from the date the representation is lodged.
Q. Can I be represented by a lawyer at the conciliation meeting?
A. Lawyers are not allowed at conciliation meetings. A Company may be represented by its employee or by an officer or employee of a trade union of employers or by a registered organization of employers. The employee may represent himself or, if he is a member of a trade union, by an officer or employee of the trade union or an official of any other registered organization of workmen.
Q. If a matter is not settled, how long does it take for the matter to reach the Industrial Court?
A. Reference to the Industrial Court is dependent upon the Minister being satisfied that there is a “fit and proper case” for reference. The Industrial Relations Department will notify the parties of the outcome of the Minister's decision, generally, within 6 to 12 months of the representation being made.
Q. How will I know if my matter is referred to the Industrial Court or not?
A. You will receive a letter from the Industrial Relations Department informing you of the outcome. If the letter states that your case is “wajar untuk dirujuk” then it means that your case has been referred to the Industrial Court and you may expect to receive a notice of mention from the Industrial Court soon after that requiring your attendance for mention.
Q. What can I do if my case is not referred to the Industrial Court?
A. If you receive a letter stating that your case is “tidak wajar untuk dirujuk” this means that the Minister has decided not to refer your case to the Industrial Court. The decision of the Minister may be challenged in the High Court by judicial review. An application for judicial review must be filed within 40 days from the date the applicant employer or applicant employee, as the case may be, is informed of the decision.
Q. What happens at the mention of the case in the Industrial Court?
A. You are required to be present in the Industrial Court for the mention of the case. At the mention, the Industrial Court normally directs the Statement of Case to be filed by the Claimant (the individual making the claim) by a certain date to be followed by the Statement in Reply to be filed by the employer. Subsequent mention dates may be fixed by the Court for management of the case before trial.
Q. Do I have to pay any fees for the filing of documents in the Industrial Court?
A. No. There are no filing fees in the Industrial Court.
Q. Can I be represented at the Industrial Court?
A. Yes. The employer and the employees may seek representation at the Industrial Court. They may represent themselves or be represented by officers of a trade union of employees or employers. They may also be represented by Advocates & Solicitors. However, representation by an Advocate & Solicitor is only with the permission of the President of the Industrial Court. Parties desiring representation by Advocates & Solicitors are required to fill up Forms A and B to apply for permission from the President. Normally permission is not refused unless there are valid objections from the opposing party.
Q. Do I need to be represented?
A. Although the Industrial Court is not a court of law, there are practices and procedures similar to a court of law and rules of evidence that have to be followed and these can be overwhelming for the lay person who has no comprehensive knowledge or training in conducting a trial.
Q. Where is the Industrial Court?
A. The Industrial Court is centralized in Kuala Lumpur at Jalan Mahkamah Persekutuan (opposite Dataran Merdeka). The courtrooms are in the Industrial Court building and the adjacent Straits Trading Building. The Industrial Court also has courts in Johor Bahru, Penang, Ipoh, Kota Kinabalu, Kuching and Kuala Terengganu. For the court numbers and the presiding President/Chairpersons please refer to the Industrial Court's website at http://www.mp.gov.my/.
Q. How do I know which Court will hear my case?
A. The case registration number contains information on the case and the first digit indicates the courtroom. For example the Case number “3/4-2468/2008”
shows as follows:--
3 - Court 3
4 - Nature of Case.
2468 - Case Number
2008 - Year Case is registered
Q. What will I get if I win my case of unjust dismissal against my employer in the Industrial Court?
A. If the employee wins the case, the Court has the power to order that the claimant be given the job he had at the time he was dismissed or a similar job on the terms and conditions he enjoyed before the dismissal otherwise known as “reinstatement”. The employer will also be ordered to pay to the employee is entitled to be paid his wages from the date of his dismissal until the date of reinstatement. This is known as backwages. Recent amendments to the Industrial Relations Act 1967 has introduced a cap of 24 months on the backwages. In some cases, the Industrial Court may decide not to order reinstatement and in place of reinstatement, it would, together with the backwages, order compensation, generally at the rate of 1 month's salary for each year of past service. The Industrial Court has power to make orders for costs and expenses of witnesses appearing at the trial but generally does not make such orders. The Court has no power to award interest on the compensation.
Q. What happens if I lose my case against my employer in the Industrial Court?
A. The Court will dismiss the claimant's claim The claimant will not be ordered to pay costs to the employer and will also not be awarded any payments of any kind for the loss of the job.
Q. If I win the case, will my employer be ordered to pay costs in the Industrial Court?
A. In the Industrial Court, the losing party is not liable to pay the winning party's costs.
Q. If I lose the case in the Industrial Court, can I appeal?
A. An award of the Industrial Court is not appealable. However, as the Industrial Court is an administrative tribunal and a public decision-maker, you may apply to the High Court for Judicial Review of the award.
Q. Is there a time limit for applying for Judicial Review?
A. Yes. The time limit is 40 days from the date the decision of the Industrial Court is communicated to you. It is important to note that the Industrial Court does not normally pronounce judgment in open court. The decision of the Industrial Court is in writing and the award is handed down after the parties have made their submissions. The award is normally sent by post and the 40 days will start to run from the day the award is received.
