Extension Of Time For Judicial Review In Cases Of Unfair Dismissal By Statutory Bodies And Authorities: A Stringent Exercise

A.           INTRODUCTION

The term “unfair dismissal”, putting it simply, means the termination of employees by an employer without “just cause and excuse”. In the private sector, an employee who believes he has been unfairly dismissed by his employer may lodge a representation at the Industrial Relations Department (‘IRD’), or in some cases, may bring an action in the civil courts – albeit the damages and the nature of remedies may differ.

But what about the case of an employee who works for statutory authorities, such as those employed under local councils like Majlis Bandaraya Pulau Pinang (‘MBPP’) established under the Local Government Act 1976 (‘Act 171’)?

Such individuals are not regarded as public servants per sae because they do not fall under the prescribed definitions of members of public service under Article 132 of the Federal Constitution. Interestingly, they are also not regarded as private sector employees either, as they are employed by statutory bodies or authorities and perform 'public' functions.

This puts such workers in a very unique position. Section 52(1) Industrial Relations Act 1967 (‘Act 177’) expressly provides that they cannot file claims for remedies in the Industrial Court. As such, the only available remedy for an employee of a statutory authority is to apply for Judicial Review in the High Court (usually for a remedy of certiorari) to challenge the decision for dismissal and to quash the said decision.

B.       ORDER 53 RULES OF COURT 2012

When applying for Judicial Review, the relevant provisions of the law is found in Order 53 Rules of Court (‘ROC’) 2012.

In the private sector, employees have 60 days from the date of dismissal to file a complaint to the IRD. But this is different for an application for Judicial Review.

Order 53 Rule 3 (6) ROC 2012 provides that an application for Judicial Review shall be made promptly and in any event within three months from the following: -

a)   the date when the grounds of application first arose; or

b)   when the decision is first communicated to the applicant.

The three-month’s time limit above is rigid, fundamental and observed strictly by the Courts in Malaysia (See the Court of Appeal cases of Abdul Rahman bin Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur & Anor [2008] 6 MLJ 704 at para. 68 and Menteri Besar Negeri Pahang Darul Makmur v Seruan Gemilang Makmur Sdn Bhd [2010] 4 MLJ 360 at para. 16 and 60). Hence, failure to comply with such requirement can be deemed fatal.

However, the Court may, upon an application, extend the time if it considers that there is a good reason for doing so. This is provided for under Order 53 Rule 3 (7) ROC 2012.

If the employee is out of time in applying for Judicial Review, he will need to apply for Extension of Time under Order 53 Rule 3 (7) ROC 2012 before the leave application for Judicial Review can be heard.

In other words, there are two stages in an application for Judicial Review – (i) the leave stage and (ii) the substantive application. If the leave of Court for Extension of Time is refused, the Court will have no jurisdiction to hear the application for leave for Judicial Review no matter how strong (or not) the merits (see the Federal Court case of Ravindran v. Malaysia Examinations Council [1984] 1 MLJ 168 at 169).

This principle was aptly illustrated by the Federal Court in Wong Kin Hoong & Anor (Suing for Themselves and on Behalf All of the Occupants of Kampung Bukit Koman, Raub, Pahang) v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161 where Raus Sharif PCA held as follows: -

 “(4) The time frame in applying for judicial review prescribed by the Rules was fundamental. It goes to jurisdiction and once the trial judge had rejected the explanation for the delay for extension of time to apply for judicial review, the court no longer has the jurisdiction to hear the application for leave for judicial review. Whether the application has merits or not was irrelevant...”

C.       PURPOSE OF SUCH STRINGENT CONDITIONS

In Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145 at para. 16, James Foong FCJ in the Federal Court held that the basic objective of these conditions is to protect those entrusted with the enforcement of public duties against groundless, unmeritorious or tardy harassment that were accorded to statutory tribunals or decision making public authorities.

Secondly, there is a need to reduce the delay in resolving such applications in the interest of good administration. Lord Diplock in O’Reilly v Mackman [1982] 3 All ER 1124 had observed that: -

‘the public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.’

D.       GROUNDS THAT THE COURT DO NOT REGARD AS ‘GOOD REASONS’

Order 53 Rule 3 (7) ROC 2012 confers a discretion upon the Court to extend time “if there is good reason for doing so” and the burden is on the applicant to provide ‘good reasons’ for extending time.

In Seruan Gemilang Makmur Sdn Bhd v Pegawai Kewangan Negeri Pahang [2016] 3 CLJ 1, Mohd Yazid bin Haji Mustafa J held as follows: -

"[35] ... The court would not grant the application for extension unless positively satisfied it is proper to do so. The judicial rulings indicate that what explanations for delay will be acceptable may vary according to the circumstances of each case."

So this begs the question, what are ‘good reasons’? This will be explored below.

(a)      Ignorance of the Law is No Excuse

All employees of statutory bodies or authorities are deemed to know the law, i.e., that if a decision for dismissal is challenged, it shall be by way of an application for Judicial Review which is subject to a time frame of three months. Ignorance of the law, however bona fide, cannot amount to a defence.

In Sayid Alwi bin Syed Ahmad v ACP Wan Hassan bin Wan Ahmad & Ors [2018] MLJU 1299, the applicant contends that as a corporal in the police force his knowledge of civil law was limited. In this case, the applicant had engaged counsel for a criminal charge against him in the Magistrates Court. The High Court held as follows: -

 “[27] He also states that he had limited knowledge of the law and that would invite the court to infer that he did not know that there was a time limit to file the leave application three months after the respective decisions. On this point I note that the applicant fully understood the nature of the sentence and consequences of being sentenced for the charges preferred against him at the magistrate’s court to the extent that he engaged counsel to ensure that the sentences imposed would not jeopardise his position in the police force. In such circumstances it would also be reasonable to conclude that he would also realise that consequences of inaction after the “Perintah Tahan Kerja” and “Perintah Buang Kerja” had been communicated to him.”

(b)      Inability to Find a Lawyer and Work Commitment

Difficulty in obtaining legal advice or services have been rejected in the past as a good reason to extend time.

In Mohd Ismail Bin Abd Ghani (Yang Ingin Dikenali Di Dalam Kad Pengenalannya Sebagai Saravanan A/L Balakrishnan) v Ketua Pengarah Pendaftaran Negara & Anor [2012] 1 MLJ 707, the applicant applied for extension of time to file an application for judicial review. There was a delay of six (6) months in filing the application.

The reason for the delay, according to the applicant, was due to his inability to find a lawyer and his work commitments that made it difficult for him to obtain leave to meet up with his lawyer. The applicant further stated that the delay caused no prejudice to any party as the matter of his religion was personal to him.

The High Court dismissed the application and held that the applicant’s explanation that he needed time to find a lawyer and his lawyer needed time to check his matter and his difficulty in getting leave from work to meet with his solicitor are not satisfactory to account for the delay and further held as follows: -

“(3) …It is immaterial whether the delay does not occasion any prejudice to the respondent or a third party. The submission of no prejudice caused was not a satisfactory explanation for delay in filing for judicial review. The applicant had failed to satisfactorily explain the reason for the approximately six months' delay in making this application. On this ground alone the application for extension of time ought to be dismissed…”

 If an applicant is truly not able to appoint a lawyer in due time, evidence must be shown to support such a contention. This is part of the applicant’s duty to make full and frank disclosure in his application.

In Sayid Alwi bin Syed Ahmad (supra.), the applicant failed to adduce evidence in support of his grounds for delay in appointing a lawyer and the High Court observed as follows: -

“[26] The applicant is now being represented by counsel. There was however no indication as to when counsel was appointed to represent the applicant. Nor is there information as to how soon after the appointment was this application filed. This information would help the court deliberate as to the efforts made to file this application without delay. Regrettably, such information is not before this court.”

(c)      Inadequate Finances to Engage a Lawyer

If an applicant’s reason for delay in filing an application for judicial review is because he did not have the necessary funds to engage a lawyer, he must again fulfil his duty to make full and frank disclosure in convincing the Court of such reasoning.

In Sayid Alwi bin Syed Ahmad (supra.), the applicant contends that he did not have enough funds to engage a lawyer but evidence suggests that he had a business that was generating income. The High Court observed as follows: -

“[25] The crux of the applicant’s reason for the delay was that the applicant did not have enough funds to engage a counsel. He had however previously engaged a counsel in the magistrate court proceedings where he had pleaded guilty to the charges against him. At paragraph 5 of his affidavit he had also stated that the helped his wife run a business selling, upgrading and supplying computers and mobile telephones. The business was also involved in recycling of goods and was also into the catering business. He stated that he helped his wife in the business outside office hours. There is therefore evidence that he and his wife was running a business involved in various activities which would generate income. There was no indication that the business had ceased.”

Such an argument is often weak unless the applicant genuinely falls under exceptional circumstances. The Court will not grant Extension of Time if it is not convinced.

(d)      Someone Else Had Caused the Applicant’s Delay

 It is also often an uphill battle for an applicant who has not brought a Judicial Review application within time to point their finger at others for their delay. In Ketua Pengarah Kastam dan Eksais v Coach Malaysia Sdn Bhd [2019] 2 MLJ 716, the Court of Appeal held that it was the duty of the respondent to monitor its own Taxpayer Access Point (TAP) account and not to blame its own auditor for missing the deadline.

The Court further held that in any event, the delay cause by the auditor, even if true, was the respondent’s internal problem and had nothing to do with the appellant. The appellant should not be put at a disadvantage due to the respondent’s lack of care in managing its TAP account. In the circumstances, the learned judge was wrong in accepting the reason as a ‘good reason’ to justify an extension of time.

(e)      Length of Delay is a Material Factor to be Considered

In Ong Guan Teck v Hijjas Kasturi [1982] 1 MLJ 105, the High Court held that there must be some material on which the court can exercise its discretion in favour of the applicant. Otherwise, the party in breach of the rules would have an unfettered right to extension of time which would defeat the very purpose and object of the rules of limitation of period.

The High Court also stated that in considering whether to grant or refuse extension of time the length of time that has lapsed is always a material factor to be considered by the court exercising the discretion.

E.       CONCLUSION

In closing, the exercise of Extension of Time is purely at the discretion of the Court. There is no hard and fast rule. However, in protecting the good administration of public authorities, case laws show that the Court is strict and conservative when considering whether to grant Extension of Time in Judicial Review applications.

Furthermore, as an application for Judicial Review in cases of unfair dismissal usually only affects the individual aggrieved and not a class of persons such as those found in public interest litigations, it is difficult to establish what ‘good reasons’ would be and under what circumstances the Court would grant Extension of Time.

Long story short, applicants must always be mindful of bringing their action promptly and, in any event, within time – this does not apply to Judicial Review proceedings only.

Authored by Yap Tsu Sheng. Advocate & Solicitor.

DISCLAIMER:

The views, thoughts, and opinions expressed in the text belong solely to the author, and not necessarily to the author's employer, organisation or other group or individual.

The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.