I am a lawyer practicing at the Industrial Court and have been following with concern the statement by the Minister of Human Resources and the reaction to his announcement that he has managed to reduce cases referred to the Industrial Court to 500 from the previous figure of 3,500.

Whilst statistics may appear attractive and reflect his ministry’s apparent efficiency, this is far from the truth as the drastic reduction has been at the expense of justice to the dismissed workman.

What avenue does the dismissed workman have now? He has to file an appeal to the High Court to reverse the decision of the minister, which cost money and time. If the High Court upholds the decision of the minister, the dismissed workman will end up paying both legal fees and cost.

He is in a ‘no win’ situation. Now, was that the intention of parliament - to deny justice to the dismissed workman and/or clear the backlog of cases?

Lest we forget the intention of parliament in enacting the Industrial Relations Act, let me cite what an eminent Chief Justice. His Lordship Justice Raja Azlan Shah said in the case of Non-Metalic Mineral Products Mfg Employee’s Union & Ors v South East Asia Firebricks Sdn Bhd [1976] 2 MLJ said:

‘The Act (Industrial Relations Act 1967) seeks to achieve social justice. Social justice is something more than mere legal justice. It is a social philosophy imposed on the legal system.

'Industrial Courts and tribunals are not only not bound by the contracts of the parties, they can make new contracts and revise old contracts.

‘They are not strictly bound by the law of master and servant. Otherwise there would be no point in creating such industrial tribunals. It is to free workers from contracts and obligations that were unfair and inequitable’.

In Hong Leong Equipment Sdn. Bhd. [1997] 1 CLJ 671, Court of Appeal, Kuala Lumpur, His Lordship, Gopal Sri Ram said:

‘Parliament has created three separate and distinct powers in respect of the subject-matter and conferred each of them upon separate authorities. First, there is the conciliatory power vested in the director-general whose sole function is to mediate and attempt to settle disputes as early as possible.

‘It is no part of his function to ascertain the law or the facts or to make any determination upon either. If his attempt to reconcile the parties fails, he merely notifies the minister of this fact. If he is found in any case to have done more than what the law permits, his action will be liable to be quashed on the grounds that it is ultra vires the Act.

‘Second, there is power vested in the minister to refer representations made under s. 20(1). It is a power he must, by reason of the combined operation of the provisions of Arts. 5(1) and 8(1) of the federal constitution, exercise fairly.

‘Third, there is the power to adjudicate upon the same representation vested in the Industrial Court which, by the terms of the Act, is enjoined to act, inter alia , according to equity and good conscience when making its award.

‘The way in which the Act is constructed makes it clear that it is only the Industrial Court which is conferred with an adjudicatory function. The two preceding powers, namely, the director-general and the minister cannot therefore assume a function expressly reserved to the third. It follows that prima facie, considerations that are irrelevant to the Industrial Court's decision-making process cannot be, and are not relevant, vis-a-vis the referring authority.

‘Quite apart from being a proprietary right, the right to livelihood is one of those fundamental liberties guaranteed under Part II of the Federal Constitution. Suffice to say that the expression ‘life’ appearing in Article 5(1) of the Federal Constitution is wide enough to encompass the right to livelihood.

‘The desire of Parliament to protect the nation's work-force from the harshness of an unbending and inveterate common law and doctrines of equity, as expressed by the passing of the Act, may thus be seen to be entirely in harmony with the terms of the supreme law of the Federation.

‘The high standards of social justice so carefully established by the legislature and by the framers of the federal constitution ought not, in my judgment, to be consciously lowered by any decision of this court’.

In light of the above expressed intentions of parliament, I would like to know from the minister, can the need to reduce the backlog of cases at the Industrial Court, justify non-reference? We must also not lose sight of another vital fact ie, the government has, prior to the minister taking charge of the ministry in 2008, over the last few years, increased the number of Industrial Courts to 28, so that more cases can be heard and be disposed off.

The present president of the Industrial Court, in order to expedite hearings, has made it compulsory that each chairperson hears and disposes of a certain number of cases each month and that more than one case needs to be set for hearing per day, in order to ensure that at least one matter will be heard, if another cannot proceed.

This has resulted in the courts disposing of the accumulated backlog. Matters referred as recently as in the year 2007 are presently being heard.

This being the case, I am of the view that the minister needs to review his decision to drastically reduce references, in order to avoid injustice to the workman dismissed without just cause or excuse and to up hold the intention of parliament.