DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
(BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS)
PERMOHONAN SEMAKAN KEHAKIMAN NO.R1-25-408-2010
ANTARA
TEH SENG KAY … PEMOHON
DAN
UNITED COATINGS TECHNOLOGY SDN BHD … RESPONDEN
JUDGMENT
Aziah Ali, J :
The Applicant applies for judicial review for an order of certiorari under Order 53 of the Rules of the High Court 1980 to quash the Award of the Industrial Court No.905 of 2010 dismissing the Applicant’s application to add Adora Paints (M) Sdn Bhd as a party to the proceedings before the Industrial Court. I dismissed the application with costs of RM1,000.00 to the Respondent.
Background
[2] The Applicant was dismissed by the Respondent in August 2006. The Honourable Minister referred his claim of unfair dismissal to the Industrial Court for adjudication. Hearing before the Industrial Court has commenced.
According to the Applicant during cross examination of the Respondent’s witness COW-1, a director of the Respondent, the following transpired –
(a) the Respondent is dormant since 1.1.2007 and has ceased operation completely and has no place of business;
(b) in 2007 a new company, Adora Paint Sdn Bhd (“Adora”) was set up on 1.1.2007with the same objectives as the Respondent;
(c) Adora was formed to acquire the Respondent company;
(d) all the directors and shareholders of the Respondent and Adora are the same;
(e) Adora absorped all the staff of the Respondent on the same terms and conditions of employment with no change in their seniority;
(f) had the Applicant not left the Respondent, he would have been absorped into Adora.
Pursuant to the abovementioned evidence the Applicant applied to the Industrial Court under section 29(a) of the Industrial Relations Act 1967 to add Adora as a party to the proceedings.
[3] In the Award based on the documents and authorities cited and the submissions the Industrial Court found –
(a) that from the corporate information obtained from the Companies Commission of Malaysia, that Adora and the Respondent are two separate entities;
(b) having common directors and shareholders is not sufficient to prove a nexus between Adora and the Respondent;
(c) Adora has not acquired nor taken over the Respondent;
(d) the Respondent is not made a subsidiary of Adora;
(e) Adora and the Respondent are not part of a group enterprise;
(f) it has not been shown that the Respondent company has ceased operations or is no longer in existence;
(g) it has not been shown why the Respondent would not be able to reinstate or compensate the Applicant the event the award is in the Applicant’s favour.
Consequently the Industrial Court dismissed the Applicant’s application.
Submissions
[4] Counsel for the Applicant submits that the findings of the Industrial Court is contrary to the evidence of COW-1. It is submitted that based on the evidence of COW-1, it is clear that the Respondent and Adora have the same shareholders and directors. All of the Respondent’s staff have been absorped into Adora and COW-1 agreed that had the Applicant not left the Respondent, he too would have been absorbed into Adora. Further Adora through its web site had advertised to the world at large as follows –
Adora Paints (M) Sdn Bhd, formerly known as United Coatings Technology Sdn Bhd, established in 1989 in Malaysia….
Thus counsel submits that both the Respondent and Adora are the same business entity. It is submitted that it is beyond doubt that Adora has acquired the business of the Respondent and the Respondent’s interest is now fully represented by Adora (Harris Solid State (M) Sdn Bhd & Ors v Bruno Gentil Pereira & Ors [1996] 4 CLJ 747). Counsel submits that the corporate veil of the Respondent and Adora ought to be lifted (Hotel Jaya Puri Bhd v National Union of Hotel, Bar & Restaurant Workers & Anor [1979] 1 LNS 32). Counsel submits that the Industrial Court made its Award –
(a) based on findings of facts unsupported by evidence;
(b) acted without any sufficient or reasonable grounds and/or taken into account irrelevant consideration and/or reached his findings in a manner that is irrational and/or contrary to the clear evidence in court; and
(c) failed to exercise his discretion and/or erred in law when he failed to apply his mind to the facts and evidence adduced at trial before making the Award.
[5] For the Respondent counsel raised objection to the application on the ground that Adora has not been made a party to this application. Therefore it is submitted that Adora has been deprived of the right to be heard.
Decision
[6] On the objection raised, I am of the view that counsel for the Respondent ought to have raised the objection early in the proceedings. The notes in the court file show that on 12.10.2010 counsel appeared purportedly on behalf of Adora. The Applicant’s counsel objected on the ground that counsel has no locus since Adora is not a party. No objection was taken by the Respondent to the fact that Adora was not made a party. The Form 111B was served on the Respondent’s solicitors on 15.10.2010. No application was made by the Respondent for an order that the application ought to be served on Adora or for Adora to be joined in the present proceedings. In any event I am of the view that a decision on this application is primarily based on the evidence tendered before the Industrial Court and the same evidence and submissions would be considered in the present proceedings. Hence the absence of Adora would not hamper this court from making a decision.
[7] Counsel for the Applicant submits that the Industrial Court erred in not accepting the evidence of COW-1. It ought to be borne in mind that assessment of evidence and credibility of witnesses are matters for the Industrial Court. In the case of Airspace Management Services Sdn Bhd v Col (B) Harbans Singh Chingar Singh [2000] 4 CLJ 77 Gopal Sri Ram JCA (as he then was) said
….where the Industrial Court has accepted or rejected the evidence of a particular witness and gone on to make a finding based on such acceptance or rejection, the High Court is bound to accept such finding.
[8] The Industrial Court made its decision upon hearing witnesses and on the evidence tendered. In the Award the Industrial Court found after considering the documents that the Applicant has failed to prove a nexus between the Respondent and Adora. Thus despite the evidence of COW-1 the Industrial Court chose to accept the documentary evidence. I find that the Industrial Court has considered all relevant matters in making its decision. It cannot be said that there is no evidence to support the decision. The Industrial Court has not committed any error of law in its decision-making process to merit intervention. The application is therefore dismissed with costs of RM1,000.00 to the Respondent.
Dated 7.2.1011
AZIAH BINTI ALI
JUDGE
HIGH COURT MALAYA
KUALA LUMPUR
Counsel :
For the Applicant : LK Teh
(Messrs Teh, Kiu & Partners)
For the Respondent : LC Loh
(Messrs L.C. Loh & Co.)
