EMPLOYMENT LAW
Indian Nationals – Employee – Failure to provide proper accommodation – Failure to pay wages – Complaint – Department of Labour – Forego Complaint – Appeal
Poosai Pandian Gunasekaran & 47 Ors v. AJN Energy (M) Sdn Bhd
Civil Appeal No.:C-04(A)-82-03/2021 | Court of Appeal
- see the grounds of judgment here
Facts Poosai Pandian and the 47 others (the
'Appellants') are Indian nationals
formerly employed by AJN Energy (M) Sdn Bhd (the
'Respondent') to undertake work in
relation to high electrical voltage towers in Bentong, Pahang Darul
Makmur. During the course of their employment, the Respondent
failed to provide the proper and appropriate accommodation and
medical facilities as well as personal protection equipment to the
Appellants. In addition, the Respondent also failed to pay the
Appellants' full wages for the months of September and October
2018. The Appellants than fled the workplace and subsequently
lodged their complaint to the Department of Labour. The initial
hearing of the Complaints at the Labour Court was adjourned at the
request of the Respondent to have a settlement discussion, which
was however, not fruitful. The hearing resumed and during the
course of the hearing, several Appellants stated that they wished
to return to their home country expeditiously and accordingly
forego their respective complaint. The Presiding Officer proceeded
with the inquiry and ultimately ordered the Respondent to pay the
sum of RM95,617.00 to all 48 Appellants being their unpaid wages.
The Respondent was dissatisfied and appealed to the High Court. At
the High Court, the learned judge allowed the appeal. Hence this
appeal at the Court of Appeal.
Issues 1. Whether Section 69 of the EA confers
full discretion to the Presiding Officer of the Labour Department
and/or Labour Court to further investigate and decide on a
complaint despite the statements by the Complainant that they
wanted to withdraw the complaint during the course of proceedings;
and
2. Whether the Presiding Officer of the Labour Department and/or
Labour Court is right in deciding the Respondent has a duty to pay
wages to the Applicants under the Employment Contract and EA,
regardless of statements made by the Applicants that they wanted to
withdraw the complaint.
Held In allowing the appeal, Court of Appeal Judge
Lim Chong Fong held that the Director General of Labour's
exercise of discretion to inquire into a dispute on matters such as
the non-payment of wages need not be premised on a complaint being
made but rather on whether the dispute on wages have been resolved
by way of a settlement or payment and hence, even if there had been
a withdrawal of the complaint, the Director General of Labour may
still proceed with his inquiry and made the necessary order. The
Court of Appeal further held that, jurisdiction and power are only
forfeited if there was a negotiated settlement or prior payment of
the unpaid wages, however in this situation there wasn't any as
a matter of fact. In addition, the Court of Appeal held that the
statements made by several Appellants are equivocal in the sense
that they were concerned with prioritised returning to India
soonest rather than being bogged down in the Labour Court inquiry.
There was however no unmistakable and unequivocal expression by
them of waiving or foregoing their unpaid wages by the Respondent.
The Court also stated that the Employment Act is a social
legislation and must therefore be interpreted liberally and
equitably in favour of the weaker party who are the poor and likely
illiterate Appellants in this case. Hence, the appeal was allowed
and the judgement of the High Court was set aside.
Zul Rafique & Partners
{28 February 2023}
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