9/1-257/20

INDUSTRIAL COURT OF MALAYSIA

CASE NO. : 9/1-257/20

BETWEEN

DZULKIFLI BIN AHMAD

AND

KEDAH ISLAMIC ASSET MANAGEMENT BERHAD

AWARD NO. : 175 / 2023

CORAM :
Y.A. PUAN SURAIYA BINTI MUSTAFA KAMAL -CHAIRMAN
ENCIK BADRULMUNIR BIN BABOO -EMPLOYEES’ PANEL
ENCIK MOHD FAIZAL BIN ABD RAHIM -EMPLOYERS’ PANEL

VENUE : Industrial Court of Malaysia, Penang

FILING OF FORM S : 02.01.2020

DATES OF MENTION : 10.02.2020; 28.07.2020; 02.09.2020; 04.09.2020;

27.10.2020; 04.01.2021; 07.05.2021; 01.07.2021;
02.11.2021; 17.01.2022; 21.01.2022; 29.04.2022;
16.06.2022; 21.07.2022; 27.10.2022; 15.11.2022

DATES OF HEARING : 05.01.2023

REPRESENTATION : Ms Pravin Kaur Jessy (Messrs Jessy &

Associates) for the Complainant

Mr Mohamad Nizan Bin Azdahari (Messrs

Dasuki & Co) for the Respondent
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AWARD

[1] This is an application by Dzulkifli bin Ahmad (hereinafter referred

to as “the Complainant”) for an order of non-compliance in relation to

Award No. 3054/2019 dated 25 November 2019 (hereinafter referred to

as “the said Award”) is respect of the remedy component in it. The sole

issue that arose for determination by this Court is whether Kedah Islamic

Asset Management Berhad (hereinafter referred to as “the Company”)

had failed to comply with the terms of the said Award.

[2] This Court has considered the following cause papers and

documents in handing down this Award, namely:

(a) the Complainant’s Statement of Case dated 22 December 2022;

(b) the Company’s Jawapan Kepada Pernyataan Kes dated 3 January

2023;

(c) the Complainant’s Bundle of Documents marked as “CLB-1”; and

(d) the Company’s Ikatan Dokumen marked as “COB-1”.

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Brief Facts of the Case

[3] The Complainant lodged a complaint under subsection 56(1) of the

Industrial Relations Act 1967 (hereinafter referred to as “the IRA”) that the

Company had failed to comply with paragraph 50 of the said Award in

respect of the payment of the sum of RM231,240.00 of the said Award

(hereinafter referred to as “the Award Sum”).

[4] The relevant part of the said Award with regard to this complaint

reads:

It is hereby ordered that the whole amount of RM231,240.00 after

deducting the necessary statutory deduction, if any, is to be paid by
the Respondent to the Claimant through the Claimant’s Counsel
Messrs. Jessy & Associates within 30 days from the date of this
award.

The Complainant’s Case

[5] In his Statement of Case, the Complainant states that pursuant to

the said Award the Company was ordered to pay the Complainant through

his solicitors Messrs. Jessy & Associates, the sum of RM231,240.00 after

deducting the necessary statutory deduction, if any, within 30 days from

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25 November 2019.

[6] However, the Company had failed to comply with the said Award.

The Company’s Case

[7] In its Jawapan Kepada Pernyataan Kes, the Company states that

it had issued 12 cheques to the Claimant’s solicitors through a letter dated

27 October 2022 for the payment of the Award Sum and RM2,080.00 as

costs for the Judicial Review proceedings and allocator. The Company

avers that its current financial difficulties had forced the Company to

dispose of its assets in order to pay its operational costs and other

liabilities. The Company further avers that the issuance of the said 12

cheques shows that the Company intends to honestly settle the matter.

The Law on Non-Compliance

[8] The terms of reference of an issue under section 56 of the IRA was

addressed by the Supreme Court in Holiday In Kuala Lumpur v. The

National Union of Hotel, Bar and Restaurants Workers [1988] 1 CLJ 133

as follows:

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Now s. 56 is concerned with the enforcement in a summary manner

of an award made by the Industrial Court or of a collective agreement
which has been taken cognizance of by the court under s. 17 after a
complaint has been lodged as to its non-compliance. The non-
compliance of a term of the award or collective agreement must exist
as an antecedent fact before the Industrial Court can exercise its
powers contained in subsection (2) thereof. It is therefore a condition
precedent to the exercise of those powers that there should be in
existence a breach or non-observance of a term of the award or
collective agreement. This must be satisfactorily established by the
complainant.
(emphasis is this Court’s)

[9] Pursuant to subsection 56(1) of the IRA, a trade union or an

individual bound by any Award or Collective Agreement is allowed to file

a complaint that a term of any such Award or of any such Collective

Agreement has not been complied with.

[10] Subsection 56(2) of the IRA provides that upon the receipt of the

complaint, the court may–

(a) make an order directing any party–

(i) to comply with any term of the award or collective agreement;

or

(ii) to cease or desist from doing any act in contravention of any

term of the award or collective agreement;

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(b) make such order as it deems fit to make proper rectification or

restitution for any contravention of any term of such award or
collective agreement; or

(c) make such order as it considers desirable to vary or set aside upon
special circumstances any term of the award or collective
agreement.

Role and Function of the Industrial Court

[11] In a complaint of non-compliance with any term of a Collective

Agreement or an Award under section 56 of the IRA, the function of the

Industrial Court is a purely enforcement function, not an interpretative

one. In Dragon and Phoenix Berhad v. Kesatuan Pekerja-Pekerja

Perusahaan Membuat Tekstil dan Pakaian Pulau Pinang & Anor [1990] 2

ILR 515, His Lordship Harun Hashim, SCJ opined:

In a complaint of non-compliance with any term of a collective

agreement or award under section 56 of the Industrial Relation Act,
the Industrial Court should, as a general rule, look at the terms of the
contract by confining itself to within the four walls of the collective
agreement or award and decide whether the term has or has not been
complied with. It is a purely enforcement function. It should not embark
on an expedition to examine the provisions of the Employment Act,
1955 in order to determine the meaning of the term complained of
unless there is a specific reference to it because to do so would invoke
the interpretative function of the court under section 33 of the

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Industrial Relations Act which is an entirely different exercise from the

under section 56. It is important to recognise the difference between
these two functions of the Court because failure to comply with an
order under section 56 is an offence with penal provisions whereas
there are no such consequences in respect of a matter dealt with
under section 33.
(emphasis is this Court’s)

Evaluation of Evidence

[12] Pursuant to paragraph 50 of the said Award, the Company was

ordered as follows:

It is hereby ordered that the whole amount of RM231,240.00 after

deducting the necessary statutory deduction, if any, is to be paid by
the Respondent to the Claimant through the Claimant’s Counsel
Messrs. Jessy & Associates within 30 days from the date of this
award.

Admission as to Non-Compliance

[13] In the evidence of the Company’s Chief Executive Mr. Adi Harriman

bin Abdul Majid (hereinafter referred to as “COW1”), it is stated that the

Company does not deny that it had failed to make payment for the Award

Sum to the Claimant as ordered by the Industrial Court on 25 November

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2019. COW1 also agrees with the suggestions during cross-examination

that the Industrial Court had ordered for the Award Sum to be paid as a

whole sum and the said Award does not provide for the Award Sum to be

paid in instalment.

[14] During examination-in-chief, COW1 states that the Company has

no intention to avoid from its responsibility to honour the said Award.

COW1 explains that, however, the Company is unable to pay the whole

amount of the Award Sum in cash due to its current financial status as it

has no liquidated cash to honour the said Award in full. According to

COW1, the Company is currently able to pay RM70,000.00 only based on

the three cheques it had issued to the Complainant’s solicitors for the

months of October, November and December 2022. COW1 further

explains that subsequent to the High Court’s decision which dismissed its

application for Judicial Review, the Company had taken the initiative to

advertise the sale of its two buildings in August 2022 of which the deposit

of RM120,000.00 would be paid to the Company at the end of January

2023. COW1 also states that besides the sale of the two buildings, the

Company is currently obtaining a loan of RM470,000.00 from the Office

of Kedah Menteri Besar.

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Submissions by the learned counsels

[15] In her oral submissions, the learned counsel for the Complainant

submits that the Company did not file an appeal against the High Court’s

decision on 12 June 2022 which dismissed its application for Judicial

Review and the whole amount of the Award Sum thus becomes due and

payable to the Claimant forthwith. Reference is made by the learned

counsel to sub-subsection 56(2)(a)(i) of the IRA 1967 and the case of

Mohd Zia Rosli v. Ayamas Food Corporation Sdn Bhd [Award No. 2930 of

2018] which made reference to Dragon and Phoenix Berhad (supra). The

learned counsel also submits that the interests of 8% per annum be paid

by the Company to the Complainant as provided under the Rules.

[16] In his oral submissions, the learned counsel for the Company

submits that COW1’s testimony in court without any supporting

documents is valid to prove the Company’s current financial status as it is

a sworn evidence. It is further submitted that an order for the payment of

the whole amount of the Award Sum is impossible in this case as the

Company is only able to make payments of instalment only. The learned

counsel also submits that no order be made against the Company in

respect of the interests of 8% per annum.

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Decision

[17] Subsection 56(2) of the IRA provides this Court with a discretion

in dealing with a complaint of non-compliance under section 56 of the IRA,

such as in this case. As decided by the Supreme Court in Dragon and

Phoenix Berhad (supra), the nature of such discretion is “purely

enforcement function”. Thus, this Court must look at the terms of the said

Award and decide whether they had been complied with by the Company.

[18] As such, by referring to sub-subsection 56(2)(a)(i) of the IRA 1967,

the learned counsel for the Complainant is submitting that this Court make

an order to direct the Company to comply with the term of the said Award.

[19] The learned counsel for the Company, on the other hand, did not

make any reference to any of the provisions under subsection 56(2) of the

IRA in his submission. Therefore, it is not upon this Court to adjudicate on

which of the said provision is applicable to the Company in this case.

Conclusion

[20] As provided under subsection 30(5) of the IRA, this Court shall

decide this case according to equity, good conscience and its substantial

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merits without regard to technicalities and legal form.

[21] As such, having considered the totality of the facts of this case, the

evidence adduced by both parties and the established principles of

industrial relations as outlined above, this Court finds that the

Complainant had proved its case.

[22] This Court unanimously decide that the Complainant’s application

for an order of non-compliance of the said Award by the Company be

allowed together with interest at 8% per annum from 1 January 2021.

[23] Accordingly, this Court orders the Company to comply with the

terms of the said Award.

HANDED DOWN AND DATED THIS 16th DAY OF JANUARY 2023.

-signed-

(SURAIYA BINTI MUSTAFA KAMAL)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
PENANG

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