Employment Law Legal Update: No Longer A Requirement To Plead Reinstatement

In March 2021, the Court of Appeal in the case of Sanbos (Malaysia) Sdn Bhd v Gan Soon Huat [2021] MLJU 498 held that it was no longer a mandatory requirement for an unfairly dismissed employee to plead reinstatement as a remedy, and held that a failure to do so was not fatal to a claim.

This appeal was filed after the High Court decided by way of Judicial Review to quash the Industrial Court’s Award. In summary, the Industrial Court had dismissed a claim for constructive dismissal on the following grounds:

a) That the Applicant did not plead reinstatement as a relief in his Statement of Case and as a result, the Industrial Court ceased to have jurisdiction to make an Award; and

b) That the Applicant had failed to prove that he was constructively dismissed.

Thereafter by way of Judicial Review, the High Court found that the Industrial Court had erred in law in ruling as it did.

As it stood, there were two (2) primary issues to be determined by the Court of Appeal, namely:

a) Whether the Industrial Court had the jurisdiction to hear an unfair dismissal claim where the Respondent had omitted to plead reinstatement as a relief in the Statement of Case; and

b) Whether the Respondent in this case was unfairly dismissed.

To this end, the Court of Appeal echoed the High Court’s decision. In fact, the Court of Appeal was of the view that the requirement to plead reinstatement as a remedy and/or relief was only material at the time when representations are made to the Director General of the Industrial Relation pursuant to Section 20(1) of the Industrial Relation Act 1967.

Thereafter, upon the case being referred to the Industrial Court by the Minister, the requirement to plead reinstatement was no longer a specific requirement.

Prior to this development, it was usually the case that an employee would have to plead reinstatement and maintain this position throughout the entire duration of trial in hopes that that the court will find the remedy of reinstatement impracticable and alternatively offer monetary compensation. 

Worst still, there have been numerous occasions where employers had used this “failure to plead reinstatement” argument as a means to defeat an employee’s valid case from a technical and/or procedural point of view. 

As such, taken as a whole, the Court of Appeal’s decision is indeed welcome for employees who have no intentions whatsoever of returning to his/her former position of employment, and/or for those who have gainfully found employment elsewhere, and/or for those who desire to be monetarily compensated instead.