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©The Sun (Used by permission)
by Daniel Chandranayagam

THE courts and the judiciary have come under scrutiny recently. Allegations of corruption and political inculcation in boot camps have taken up many column inches in both the print and online media. Another ill plaguing the courts, undue delay in resolving cases, has also been highlighted through Irene Fernandez’s decade-long “false news” case.

Industrial courts, running parallel to our civil courts, have also been criticised for delays.

The Federal Court expressed disapproval in September that the wrongful dismissal case of a civil servant, M. Senthivelu, took 26 years and six months to be resolved. During this period, Senthivelu had died, and his daughter was substituted as the respondent. Unfortunately for Senthivelu and his family, he lost his case.

Among other delayed cases reported this year, the Industrial Court awarded a salesman back wages and reinstatement for his dismissal in 2004. And the High Court compensated a production manager for his wrongful dismissal in 2001.

It comes then as no surprise that the Bar Council’s Industrial Court Practice Committee has called for an employment appeals tribunal to speed up the process.

According to current practice, an employee who feels he or she has been unjustly dismissed has to complain to the Industrial Relations Department within 60 days. An industrial relations officer will then attempt to conciliate between employer and employee. If this fails, the case is passed on to the human resources minister, who would then refer it to the Industrial Court. This can take up to two years, and another two years for the case to be settled at the Industrial Court (before appeal).

Interestingly, Human Resources Minister Datuk Dr S. Subramaniam was reported to have said recently that his ministry has only referred 512 cases to the Industrial Court this year, compared with 3,200 cases last year.

This vast reduction is lauded. However, according to R. Ravindra Kumar, chairman of the Bar Council’s Industrial Court Practice Committee, the greater delay occurs when the case is on appeal. He explains that a case is appealed on the basis of judicial review to the High Court. Thereafter, there is right of appeal to the Court of Appeal, then to the Federal Court. He says that a case can take close to ten years to reach the Federal Court, the final appeal avenue.

I understand that delays might be compounded when a case moves from the Industrial Court to the High Court. Unlike the Industrial Court, papers need to be fi led at the High Court and extracted with its seal. This in itself can take weeks if not months. Aside from that, there are problems with lost files and non-listings.

However, according to Anand Ponnudurai, the deputy chairman of the Bar Council’s Industrial Court Practice Committee, the real issue for the delays in the High Court judicial review process is that it is heard in the appellate and special powers division, which has too few courts and too much work. Anand adds, “An employment appeals tribunal will be more focused than a ‘miscellaneous’ appellate court. The tribunal will also be able to hear cases coming from the labour court.”

According to news reports, out of the 26 years and six months it took to dispose of Senthivelu’s case, 22 years were spent in the civil courts. Considering this, the Bar Council’s Industrial Court Practice Committee’s call for an employment appeals tribunal appears to be justified.

As the legal adage goes, justice delayed is justice denied. If the current practice continues, an employee close to retirement, who was wrongfully dismissed, might never see any form of redress in his or her lifetime.

Daniel freelances in writing and publishing, and has a deep passion for sleeping, eating and labour law.

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