"...where the facts do not support the conclusion arrived at by the Industrial Court or the findings of the Industrial Court are arrived at by taking into consideration irrelevant matters, such findings are always amenable to judicial review."
Per Hashim Hamzah J
Quek Jian Long provides a commentary on a recent decision by the Court of Appeal on 15 July 2021 in Thomas Jothinayagam Harris v The Perak Chinese Maternity Association & Anor. Leong Wai Hong, Witter Yee, Quek Jian Long and Tommy Lim Ka Hui successfully represented The Perak Chinese Maternity Association.
The Industrial Court had held that the anaesthetist was a workman/ employee. This award was quashed by the Ipoh High Court ( 7 MLJ 726) on the ground that he was not a workman/ employee. The appeal by the anaesthetist was dismissed by the Court of Appeal.
- Hashim Hamzah J applied the Federal Court's decision in
Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn
Bhd  6 MLJ 1: -
"...Historically, judicial review was only concerned with the decision-making process where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroad into this field of administrative law. Rama Chandran is the mother of all those cases. The Federal Court in a landmark decision has held that the decision of inferior tribunal may be reviewed on the grounds of 'illegality', 'irrationality' and possibly 'proportionality' which permits the courts to scrutinise the decision not only for process but also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds."
- A representation on dismissal under s. 20 of the Industrial Relations Act 1967 ("the Act") is only applicable to a workman and not an independent contractor.
Thomas Jothinayagam was engaged as a resident consultant anaesthetist by The Perak Chinese Maternity Association ("PCMA") at the Perak Chinese Maternity Hospital ("Hospital").
PCMA and Thomas Jothinayagam had entered into an engagement agreement. Upon expiration of the term of employment, PCMA did not renew the engagement. Thomas Jothinayagam applied made a representation under s.20 of the Act for unfair dismissal which was referred to the Industrial Court.
At the Industrial Court
The Industrial Court found that Thomas Jothinayagam was a workman and awarded him a sum of RM905,511.32 for unfair dismissal.
At the High Court
Dissatisfied PCMA applied for judicial review of the Industrial Court's decision.
At the High Court, the learned Hashim Hamzah J quashed the Industrial Court award. His lordship held that a representation on dismissal pursuant to s. 20 of the Act was only applicable to a 'workman'.
His lordship in arriving at his decision held as follows:
" Although the determination of this issue is a question of fact which very much depends on the facts of each individual case, I am guided by these authorities in coming to my decision, namely:
(a) Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal  1 MLJ 685;  10 CLJ 529 (FC);
(b) Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal  3 MLJ 281;  3 CLJ 427 (FC)..."
Applying these two recent Federal Court decisions, his lordship said:
"Coming back to the facts in the present case, in order to ascertain firstly the nature of the relationship between the applicant and the first respondent, the salient terms of the second agreement must firstly be perused."
His lordship after reviewing all the clauses of the second agreement held that the relationship between PCMA and Thomas Jothinayagam did not fall within the definition of a workman under the Act.
At the Court of Appeal
On appeal by Thomas Jothinayagam, the Court of Appeal dismissed the appeal and held that the High Court neither erred in law nor facts and there was no need for appellate intervention.
This case emphasises the importance of the terms of a written agreement entered between a doctor and a hospital in determining whether the doctor is an independent contractor or an employee of the hospital.
Originally published 06 August 2021
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