PUTRAJAYA (July 30): Malaysia’s top court has blocked the government's bid to appeal against a lower court decision which effectively compels the director general of industrial relations (DGIR) to refer to the industrial court for unresolved disputes over employee dismissals.

A three-judge bench at the Federal Court led by Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli dismissed the application for leave, or permission, brought by the government via its senior federal counsels.

“The decision on leave is unanimous. We don’t find any merit. The application for leave is dismissed. Without cost,” he said.

On Feb 29 this year, the COA had reversed a High Court decision that dismissed Shankarkumar Sanpathkumar’s judicial review application against the DGIR for closing his case file before referring it to the industrial court.

The unanimous decision by COA judges Datuk Lee Swee Seng, Datuk Che Mohd Ruzima Ghazali and Datuk Lim Chong Fong outlined that the Industrial Relations Act 1967 being a social beneficent legislation must be interpreted broadly.

This decision stemmed from a complaint referred by Shankarkumar to the DGIR against his former employer, who had terminated him for lobbying for a competitor loss adjusting firm and acting in direct conflict with the interest of the company. Shankarkumar sought reinstatement by the said company.

The employer initially refused reinstatement in a conciliation meeting, but later changed its mind.

However, Shankarkumar declined the reinstatement, since the employer earlier refused reinstatement in the conciliation stage.

He claimed that the reinstatement of work was without admission as to liability, and the memorandum of agreement prepared by the DGIR also stated that the reinstatement by the company was without admission as to liability.

His other reason for the refusal was that the company had given him instructions to report directly to its chief executive officer upon reinstatement.

Shankarkumar also refused reinstatement, as his wife, who was also an employee of the same company, was terminated one day after his reference to the DGIR.

On Tuesday, senior federal counsel Mohd Isa Mohamed argued that the application for leave to appeal at the Federal Court should be granted as it will deal with the interpretation of the law.

Isa and his colleague, federal counsel Jeevitha Raja, had stated that this will be the first time the Federal Court will interpret the law since an amendment was made to Section 20(3) of the Industrial Relations Act, which was amended via the Industrial Relations (Amendment) Act 2020.

The amendment stipulates that the human resources minister does not have the discretion to refer representations to the court, as the power to do so falls solely with the DGIR.

The DGIR may then refer the representations to the courts if satisfied that there is no likelihood of the representations being settled.

“Since this is the first case since the amendment of the act, it will also help the public understand this amendment and the interpretations of it,” Jeevitha said.

Isa added that the COA, in its decision, had only looked at the facts of the case without applying the law.

Shankarkumar’s lawyer Ranjan N Chandran had argued that there was no ambiguity to Section 20, as it’s abundantly clear that the DGIR shall refer the case to the industrial court.

“The COA has expressed the plight of the workman. This is a fit and proper case for the industrial court, that case will be better served there. The questions posed by the federal counsels do not satisfy the threshold of Section 96 of the Courts of Judicature act,” he told the bench before it made its decision.

Former human resources minister M Kulasegaran stated in 2018 that he wanted the power of the minister taken away, and that unsettled reconciliation will automatically be referred to the court.

Acting together with Ranjan were VK Raj, Rani Nadesan and Jayasri Nadarajan.