Previously, the Minister of Human Resources had the discretion whether to refer unfair dismissal complaints to the Industrial Court. This process is intended for the Minister of Human Resources to act as a filtering mechanism to rule out frivolous or vexatious complaints.
However, under the Industrial Relations (Amendment) Act 2020, the power and discretion of the minister is removed. The referral power is now vested in the Director General of Industrial Relations who is required to automatically refer the unfair dismissal complaint to the Industrial Court if there is no settlement reached during the reconciliation meeting.
The particular sub-sections in Section 20 of the old and new Industrial Relations Act are as follows:-
The old Act
(Section 20 of the Industrial Relations Act 1967)
(2) Upon receipt of the representations the Director General shall take such steps as he may consider necessary or expedient so that an expeditious settlement thereof is arrived at; where the Director General is satisfied that there is no likelihood of the representations being settled, he shall notify the Minister accordingly.
(3) Upon receiving the notification of the Director General under subsection (2), the Minister may, if he thinks fit, refer the representations to the Court for an award.
The new Act
(Section 20 of the Industrial Relations (Amendment) Act 2020)
(2) Upon receipt of the representations the Director General shall take such steps as he may consider necessary or expedient so that an expeditious settlement thereof is arrived at.
(3) Where the Director General is satisfied that there is no likelihood of the representations being settled under subsection (2), the Director General shall refer the representations to the Court for an award.
It is undeniable that this amendment may expedite the overall process of representations on dismissals. As the claimant no longer needs to wait for the Minister’s decision for referral (the Minister’s decision on referral usually takes about 3 - 6 months after the reconciliation meeting). The amendment also able to reduce the number of judicial review cases in the Court. As there will be no judicial review cases in respect of the Minister’s decision to refer or not to refer the matter to the Industrial Court. However, on the other hand, the amendment raises the concern of whether the Industrial Court will be swarmed by frivolous or vexatious complaints in absence of the filtering mechanism of the Minister.
After all, this amendment has the most significant impact on the employer in that when there is a representation for unfair dismissal filed by an employee, unless the parties able to reach a settlement during the conciliation meeting, it is inevitable that the matter will go for time-consuming and costly trial proceeding in the Industrial Court despite the complaint is frivolous or vexatious.
As such, the employer should ensure that the dismissal is done right and in compliance with the settled rules and regulations to avoid unnecessary employment disputes.