Issue: Whether the award given by the Industrial Court is unreasonable.

Comments:

1. Anisminic errors could be errors of law (exhaustive definition), adoption of unfair procedure or
unreasonableness.
Examples: (1) decision-maker asked himself the wrong question
(2) decision-maker took irrelevant considerations
(3) decision-maker omitted to take relevant considerations
(4) misconstrued terms of relevant statues
(5) misapplied principles of general law

(See: Syarikat Kenderaan Melayu Kelantan Bhd. v Transport Workers Union [1995] 2 CLJ 748)

2. Wednesbury errors could be various heads of ultra vires. In narrow sense, it means the decision-
maker considered matter that is irrelevant or omitted to consider matters that is relevant. In wider
sense, it means the excess or lack of jurisdiction (the decision-maker has acted ultra vires).

Test: reasonable man test

(See: Associated Provincial Picture House Ltd v Wednesbury Corp [1948] 1 KB 223; Harpers Trading
(M) Sdn Bhd v National Union of Commercial Workers [1991] 1 MLJ 417)

3. The issues forwarded by the Applicant are that the 2nd Respondent has failed/omitted to take into
account on the matters pleaded by the Applicant and that the award by the 2nd Respondent is
unreasonable i.e. the 2nd Respondent failed/omitted to look into the question of whether the
salary is paid as well as the question on constructive dismissal.

4. In order for the 2nd Respondent to precisely and efficiently answer the question on salary and
constructive dismissal, the issue of ‘workman’ is essential:-

(1) One reasonable man would not dismiss or pay salary to a person who is not his employee.
(2) The 2nd Respondent is confined to hear matters that are within the meaning of ‘trade dispute’
otherwise acted ultra vires.

5. Further, the provisions clearly authorized the 2nd Respondent a wide discretion in determining all
or any issues related to the matter and that it is bound to act in equity and good conscience.

6. Looking back to the facts, the considerations made by the 2nd Respondent are neither any errors
of law nor any adoption of unfair procedure. In fact, they are to aid the 2nd Respondent to look
into the matter in a larger picture. Hence, there is no ultra vires by the 2nd Respondent and that
the award itself is reasonable.

Syarikat Kenderaan Melayu Kelantan Bhd. v Transport Workers Union [1995] 2 CLJ 748 (Court of
Appeal, Kuala Lumpur)

“In my judgment, the true principle may be stated as follows. An inferior tribunal or other decision
making authority, whether exercising a quasi-judicial function or purely an administrative function
has no jurisdiction to commit an error of law. Henceforth, it is no longer of concern whether the
error of law is jurisdictional or not. If an inferior tribunal or other public decision taker does make
such an error, then he exceeds his jurisdiction. So too is jurisdiction exceeded where resort is had to
an unfair procedure (see Raja Abdul Malek v. Setiausaha Suruhanjaya Pasukan Polis [1995] 1 CLJ
619), or where the decision reached is unreasonable, in the sense that no reasonable tribunal
similarly circumstanced would have arrived at the impugned decision.

It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error
of law for the categories of such an error are not closed. But it may be safely said that an error of
law would be disclosed if the decision-maker asks himself the wrong question or takes into account
irrelevant considerations or omits to take into account relevant considerations (what may be
conveniently termed an Anisminic error) or if he miscontrues the terms of any relevant statute, or
misapplies or mis-states a principle of the general law.

Since an inferior tribunal has no jurisdiction to make an error of law, its decisions will not be
immunized from judicial review by an ouster clause however widely drafted.”

Associated Provincial Picture House Ltd v Wednesbury Corp [1948] 1 KB 223

“It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable
authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but
to prove a case of that kind would require something overwhelming, and, in this case, the facts do
not come anywhere near anything of that kind.”

Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers [1991] 1 MLJ 417 (Supreme
Court, Kuala Lumpur)

“At first blush the second ground appears to be based on the unreasonableness of the finding of the
Industrial Court on the fifth and sixth charges. Unreasonableness here, in our view, was used in the
context of the broad sense of that term as expounded by Lord Greene MR in the case of Associated
Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. 'Reasonableness' here embraces
the various heads of ultra vires – such as misdirecting oneself in law, taking into account irrelevant
considerations or failing to take into account relevant considerations – which is now known as the
Wednesbury principles. See p 228 of the Wednesbury Corp case [1948] 1 KB 223.

The third ground is nothing more than a repetition of the second ground but in relation to all five
charges and worded so as to include all the incidents of the doctrine of ultra vires, ie cases of excess
or lack of jurisdiction and unreasonableness in the broad sense as expounded by Lord Greene in
Wednesbury Corp [1948] 1 KB 223, to give the appearance of a formidable ground. What it really
amounts to is that in arriving at its conclusion and decision on the five charges the Industrial Court
acted in excess of its jurisdiction or in other words ultra vires and therefore a nullity.”

S. 30 Industrial Relations Act 1967

(1) The Court shall have power in relation to a trade dispute referred to it or in relation to a
reference to it under subsection 20(3), to make an award (including an interim award) relating to
all or any of the issues.

(5) The Court shall act according to equity, good conscience and the substantial merits of the case
without regard to technicalities and legal form.