INDUSTRIAL DISPUTE SETTLEMENT VIDE MEDIATION - DOC by tjl20588

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									MEDIATION THE WAY FORWARD IN RESOLVING BACKLOG OF LABOUR
                       DISPUTES

                                                     By

                                ASHGAR ALI BIN ALI MOHAMED
                                           Associate Professor
                                    Ahmad Ibrahim Faculty of Laws
                           International Islamic University Malaysia (IIUM)
                  LL.B (Hons); M.C.L. (IIUM); LL.M (Hons) (NZ); PhD (Business Law)
                                         Advocate and Solicitor



Abstract

There is currently, serious problems faced by the courts in Malaysia involving unsolved or backlog of cases.
One of the main reasons identified as causing the backlog of cases is the lengthy and complicated court
procedures. With the insufficient number of chairmen, and growing number of cases, a concerted effort
must be considered to eliminate the problem. Industrial disputes involving the employer and employee or
between the employer’s Federation and the trade union ought to be settled speedily as this would ensure
industrial harmony to prevail which will inevitable lead to increase in the productivity and competitiveness
of labour force. It would not be far fetch to state that the employer/employee relationship is comparable with
matrimonial relationship in that what matters between the parties is not who is right but what is right for
their harmonious relationship to continue and flourish. Therefore, in a bid to overcome backlog of cases in
the Industrial Court, which is hindering justice for workers and employers, this paper will focus on the
amicable settlement of the labour disputes vide mediation rather than the traditional litigation which in
humble opinion of the researcher does more harm than good in maintaining a harmonious relationship
between the parties. Apart from the speedy settlement, mediation can assist the disputing parties to re-
establish trust and respect and further, help to prevent damage to an ongoing relationship. When industrial
disputes are effectively and efficiently resolved, it would certain provide a tremendous savings of scarce
resources and further, the countries competitiveness would improve and productivity would therefore
increased.



Introduction

In Dovechem Terminals Sdn Bhd v Mohd Irfan Ejam,1 Chairman of the Industrial Court
Tan Yeak Hui observed: “The parties were then reminded that the Industrial Court is a
court for social justice. Litigation has been the normal process in which disputes of
parties were resolved but in recent times parties have been reminded that litigation is
only one of the available processes and should only be use as a last resort. Negotiations
conciliations and mediations should be used wherever possible. Although a hearing date


  This paper is prepared for the presentation at the 45 th Annual Conference of the Canadian Industrial
Relations Association, at the University of British Columbia, Vancouver, Canada on the 4th – 6th June 2008.
1
  [2006] 2 LNS 1728.


                                                      1
has been fixed the disputants and their respective representatives were encouraged and
directed to explore a settlement they could live with”.

Again, in Kien Sinar Sdn Bhd v Salina Ahmad,2 the Industrial Court noted: “When the
IRA 1967 was enacted about 40 years, it was not unrealistic to imagine that a dispute
upon reference by the Minister of Human Resources to the Industrial Court could be
disposed of within 3 months. Hence section 30(3) provides "the Court shall make an
award without delay and where practicable within 30 days from date of reference". But
over the years, as this country develop away from an agro based economy to a more
industrialized economy the number of industrial disputes increases to the extend not
envisaged by the legislators. It is not the intention of Parliament to inflict financial
punishment on delinquent employers rather it is to compensate the employees in so far as
monetary compensation can do. When the formula was applied to compute the amount of
back wages from the date of dismissal to the date of completion of hearing, it was
assumed that the interregnum period would only be a matter of months. The reality of the
situation today is that it is not a matter of months but rather years before a case for
alleged unfair dismissal is disposed of. However with the introduction of mediation in the
IRD and the Industrial Court the possibility of disposing a case within months may be
realizable. But if the case is adjudicated then a different scenario arises”.

The above merely illustrates the courage made by the learned chairmen of the Industrial
Court for the parties in the labour disputes to use the alternative mode of dispute
resolution rather than the tradition litigation, which inevitable result in the delay in
dispute resolution process.

Undue delay in the settlement of disputes is the common reason for public dissatisfaction.
Invariably, delay causes various hardship and losses to the disputants. For example, in
Hazlinda bte Hamzah v Kumon Method of Learning Centre,3 the Court of Appeal had
considered the rational for the creation of the Tribunal for Consumer Claims. Gopal Sri
Ram JCA stated: “formerly…where a consumer complains of defective products or
services…would have…filed in the magistrate’s court. The disposal of the case would
take ages”. Again, in Khairul Faezah bt Haji Abdul Majid v Muhamad Salleh bin Bidin4,
the Court expressed concern over the delay in the settlement of the dispute which had
taken approximately four years. The learned judge reminded the counsel of both parties
to be serious in settling the dispute, without unnecessary request for adjournment, as the
parties and the general public would place the blame of any delay on the court.

The table below, which is self explanatory, provides the statistics of the number of cases
referred to and settle by Industrial Court vide its adjudicated mode from year 2000 to
2007 and further, the total number of cases pending adjudication in the Court.

           SUBJECT                                    YEARS


2
  [2006] 2 LNS 1503.
3
  [2006] 3 MLJ 124, at p 127 (CA).
4
  [2004] 1 Sh.LR (Shairah Subordinate Court).


                                                2
                               2000   2001    2002   2003    2004    2005   2006    2007
     Total Cases Carried
                               1524   2017    2074   2098    2331    4143   3723    4566
           Forward
     Total Cases Referred      1050   1056    1092   1085    3406    1859   2990    2346
   Total Cases Heard / Given
                               726    1026    1081   1026    1911    2403   2432    2599
            Award
     Total Cases Pending       1788   1881    2015   2212    3830    3652   4566    4612

(Industrial Court Malaysia: http://www.mp.gov.my/mp_baru/biver/Itemid68bi.htm)

As from the above table, backlog of cases in Industrial Court is increasing. Complaints
are often levelled against the Court for being overly legalistic, the presentation of the
trials being adversarial in character, and cases being decided judiciously, which is often
time consuming. There is formality of proceedings, and the procedural rules and evidence
with which lawyers are accustomed to, are freely used in the Court. The law on procedure
and evidence commonly used in civil trials are freely followed in the Court, such as
subjecting parties to pleadings, requiring parties to submit bundles of documents,
examination of witnesses and submission of the case, among others.

Mediation is therefore, considered as an effective and affordable alternative to litigation.
The word „mediation‟ is derived from the Latin word medium which means middle. It
refers to a process involving an intermediary who will mediate the dispute between the
conflicting parties. Mediation is principally aimed at exploring options for settlement,
and to facilitate negotiations between the parties for an amicable settlement of the
dispute. It is conducted in private setting by a neutral third party who is a skilled or
trained mediator.

Apart from providing for the speedy settlement of the disputes, mediation is an excellent
tool for the resolution of conflicts and for solutions that are invested in the parties who
take part in that process. With its speedy mode of dispute settlement or resolution, it
could ease the substantial part of the judiciary workload, streamline the judicial process
and ultimately preserve the quality and the integrity of the judicial system. Further, the
backlog of cases would be able to reduce substantially.

Mediation may be opted in a wide rage of subject matters such as in civil and commercial
disputes, matrimonial and labour disputes, among others. In certain situations however,
mediation might not be suitable. For example, where the parties desires another to judge
who is right or wrong, or where there are serious allegations that require investigation
and possible disciplinary action.

On matters relating to employer/employee relationship, mediation is highly commended
because it can assist the parties to re-establish trust and respect and further, help the
parties to prevent damage to an ongoing relationship. It must be emphasised that the
employer/employee relationship is “comparable with matrimonial relationship in that




                                             3
what matters between the parties is not who is right but what is right for their harmonious
relationship to continue”5.

In the mediation process, the disputing parties are able to speak for themselves and work
together to find a lasting solution to their conflict, under the guidance of the mediator.
The mediator will explore the strength of the parties‟ case with a view of reconciling the
parties positions to the extent possible and assisting them in reaching a consensus on the
resolution of the dispute. The mediator may offer suggestions, recommendations and
alternatives for consideration by the parties as a means of resolving the dispute.

Having said the above, recently, the Minister of Human Resources and Manpower, YB
Datuk Seri Dr Fong Chan Onn, has proposed mediation in the Industrial Court with a
view of expediting the settlement of labour disputes, apart from alleviating backlog of
cases. Mediation would be considered as a condition precedent before the dispute could
be listed for adjudication in the Court. Thus, if the conciliation conducted by the IRD
fails to bring about an amicable resolution to the dispute, mediation could then be used as
the second step of the alternative dispute resolution process. The disputants will be
required to mediate their dispute and the mediation assistance will be provided either by
the chairman of the Court or other officers of the Court. Accordingly to the Hon.
Minister: “for every case referred to the Department, the Industrial Court chairman will
first convene the case as a mediator. As a mediator, he will be able to tell the parties
involved the merits of the case. Hopefully, the parties will pick up the hints and resolve
the case themselves”6.


Mediation: The benefits

Before venturing into the settlement of labour disputes vide mediation in the Industrial
Court it would be worthwhile considering the merits or benefits of mediation as oppose to
litigation. As noted earlier, mediation is a form of alternative dispute resolution. It is
intended to resolve the disputes between the disputants so as to find a resolution
expeditiously and economically and without the expense and delay which is common in
the formal investigation and litigation process.

In this process, a neutral third party – the mediator – will assist the parties in reaching a
settlement. The mediator will listen to the arguments forwarded by the parties. He may
ask questions to help the disputant and the other person clarify and understand the issues.
Further, he will guide the parties through a process to develop a mutually acceptable
solution. He will also maintain a safe and respectful atmosphere. If desired, he will assist
the parties in preparing a written agreement that works for everyone involved.

The mediator however, has no power to compel or even recommend a resolution or
settlement. The process works because the parties are given the power and obligation to
seek solutions that meet their own needs and interests. A successful mediation results in a

5
    Per K.Somasundram, in “Settlement of Trade Dispute” [1981] 1 MLJ lxxiv, at p. lxxxvii.
6
    „Mediation first for Industrial Court cases‟, The Star, 20 May 2004, at p. 12.


                                                      4
binding agreement between the parties. If mediation is unsuccessful and an agreement
cannot be reached, parties may pursue their case in court for the same to be adjudicated
by the chairman.

Te primary advantages of mediation are as follows:

(i) Flexibility of outcome: The parties retain the control of the dispute as well as its
outcome. They seek their own outcome which can be very different from the result
ordered by a court. Mediation provides opportunity for the parties to be more flexible so
as to preserve and enhance their relationship rather than creating a sour relationship. This
is unlike, if the dispute is litigated in court where the relationship between the parties will
undoubted become bitter, there will be feelings in the sense of betrayal, hatred and hurt
among others.

(b) Flexibility of process: Mediator can design a process that suits the needs of the
parties. Mediator generally seeks to find a solution which is workable and acceptable to
the parties. Further, there being no formality nor technicality involved and is most likely
to lead to a quick and acceptable result. This is unlike in the common law system, where
litigation normally occurs within an adversarial system where the parties or their
representatives gathers evidence, present arguments, challenge any conflicting evidence
or arguments so as to persuade the judge to make a decision in their favour. Decisions are
made based on the strength of evidence and arguments forwarded by the parties.

 (c) Speedy and cheaper process: For many people, going to court is combative and time-
consuming. Mediation, by contrast, is an informal process which emphasise conversation
and understanding. Any solution is the result of both parties arriving at a mutual
agreement. Further, unlike litigation in court which is full of technicality and procedural
rules, where a dispute may take years before it is finally resolved and further, it is an
expensive affair in that the parties will incur a substantial payout to their advocates,
mediation process is usually less formal and structured . It takes a fraction of the time of a
trial or hearing and an average mediation will cost the parties a small fraction of the
same.

(d) Preservation of relationship: Mediation can be resorted to immediately so as to
address issues before there is breakdown of relationship. The mediator encourages the
parties to discuss their concerns and consider options for resolving their conflicts. Often
times this improves relationship and/or keeps the conflict out of the court system, which
is, as noted earlier, time-consuming and costly. Resolutions are based on the voluntary
choice of the parties - the mediator does not impose terms of the resolutions or force the
parties to agree. If the parties reach an agreement, they can document their agreement in
writing and decide whether or not the agreement will be confidential.

(e) Confidentiality Information transpired during the mediation process is confidential. It
thus, encourages the full and frank disclosure of information. The mediator and the
parties are required to maintain confidentiality of the information. Commercial secrets of
the other party which became known to them in the result of their participation in the



                                              5
mediation procedure must be preserved. The requirement of confidentiality shall also
extend to the content of the settlement agreement.

(f) Impartiality: Impartiality demands that the mediator must not show favouritism over
either party to the dispute and this is required to remain throughout the process. In other
words, a mediator must have a commitment to serve both the disputing parties. Mediator
must not takes sides, assess blame, or tell disputant what to do or force the disputant to
settle the matter. The decision to settle the dispute is solely up to the choice of the parties.
The mediator shall base his proposals or advice on the existing legislations and case laws.
If at any point of time, there is any conflict of interest, mediator must decline from
mediating the dispute or refrain from continuing with the mediation process because of
the potential biasness.

A successful mediation shall result in a binding agreement between the parties. The
parties have the option to decide whether to put their agreement in writing or otherwise, it
is always desired to have the agreed terms reduced into writing so as to avoid any future
problems. The mediator shall prepare the draft settlement agreement on his own.
Alternatively, the parties themselves may prepare the agreement and the mediator may
assist them in the preparation, whenever so requested by the parties.

If the agreement is prepared by the mediator, he will submit the draft agreement for the
consideration of the parties. Its terms may then be subject to change or adjustment,
having regard to the comments or requests of the parties. The agreement shall, when duly
executed, bind the parties and every participant will receive a copy of the agreement. By
signing the settlement agreement the parties shall terminate the dispute and the
obligations undertaken by them shall henceforth become binding upon them. However, if
mediation was unsuccessful and an agreement cannot be reached, parties may pursue
their dispute in open court, before a different chairman, who would convene the case as a
hearing.

Mediation in the Industrial Court

As stated earlier, in order to expedite the settlement of labour disputes and further, to
alleviate backlog of cases which is hindering justice for workers and employers, the
Ministry [of Human Resources and Manpower] had proposed fostering disputants to use
the mediation process, to be conducted by chairman or other officers of the Court, as a
means of resolving their disputes instead of the traditional litigation process. The
proposal to introduce mediation in the Industrial Court before the case is listed for
adjudication is highly commended in settling labour disputes.

Unfortunately, however, mediation of labour dispute has not been made compulsory. It is
merely being practiced on a voluntary basis, with the consent of the parties. Being
voluntary, the parties seldom resort to mediation. Instead, the parties preferred the
traditional litigation process. Following are the decided cases, to serve as an illustration,
which had been successfully mediated by a mediator nominated either by the Industrial
Court or by the parties themselves.



                                               6
In Radin Likom v Telekom Malaysia Bhd, 7 the mediation process was held on 12 January
2007 and through the process, the parties had amicably resolved the matter by way
payment of an agreed sum of RM 5,000.00 by the company as full and final settlement of
the claim, and without any admission of liability on either of the parties. The claimant
agreed to accept the settled sum and accordingly, the case was deemed struck off.

In Manulife Insurance Malaysia Bhd v Yeo Chin Soon,8 half way during the hearing, the
parties indicated to the chairman their desire to have the matter mediated and named Y.A.
Puan Yeoh Wee Siam of Court 12 as their chosen mediator. It was agreed upon by the
parties that if mediation fail to bear fruit, the case will be continued from where it had
stopped and the date for the hearing was also fixed by the Court. Unfortunately, however,
the claimant had failed to turn up for the mediation session and further, he had failed to
turn up on the date fixed for continued hearing. Since the claimant was no longer
interested in pursuing his case, the Court had decided to strike out the case.

In Foo Kee Seng & 2 Ors v WMM Holdings Sdn Bhd,9 the parties had requested the Court
to assist in the settlement of the dispute through mediation. Accordingly, mediation was
arranged before the Assistant Registrar of the Industrial Court. Thereafter, the parties
informed the Court that they had arrived at an amicable settlement and the terms of
settlement reached was records by the Court. In Leonardo Altamarino v Karamunsing
Hotel Sdn Bhd,10 through the process of mediation, the parties had arrived at an amicable
settlement without any admission of liability on either of the parties. The terms agreed by
the parties were, that the company had agreed to pay the claimant a sum of RM 30,000.00
as full and final settlement of the claim and that the claimant had agreed to accept the
settlement sum.

In Mok Mun Pong v O & W Tax Consultant Sdn Bhd,11 while awaiting trial of the case,
the parties had informed the Court that they would desire to resolve the dispute through
mediation and will advise the Court in due course. They had arrived at an amicable
resolution of the dispute and the claimant desired to withdraw the case. The Court
allowed the claimant to withdraw and accordingly, the case was struck out without liberty
for the Claimant to file afresh. In Amiluddin Amsani v Felda Palm Industries Sdn Bhd,12
through the process of mediation, the parties had amicably resolved the dispute. The
company had agreed to pay the claimant a sum of RM11,000.00 as full and final
settlement of the claim without any admission of liability on either of the parties and that
the claimant had agreed to accept the settlement sum. It was further agreed that the
claimant shall have no further claims against the company hereafter in respect of this
matter.



7
  [2007] 2 LNS 0096.
8
  [2007] 2 LNS 0147.
9
  [2007] 2 LNS 0154.
10
   [2007] 2 LNS 0167.
11
   [2007] 2 LNS 0221.
12
   [2007] 2 LNS 0329.


                                             7
In Goh Keat Hin v SAP Malaysia Sdn Bhd, 13 at the request of the counsels for the
claimant and the company, the said matter was fixed for mediation. As the parties were
unable to reach a settlement the said matter was transferred to Court 27 for the full
hearing. However, before the hearing the claimant had passed away. But due to the
efforts of the company's counsel, the company had settled the matter with the family of
the deceased claimant. Accordingly, the case was struck off. In Kinnet Kassim v
Malaysian Airline System Berhad,14 during the mediation session, the company had made
the offer to the claimant for the sum of RM6,000.00 as compensation for full and final
settlement of the claim. The claimant however decided to close his case without wanting
to accept the said offer of settlement sum. In the circumstances, the Court had struck off
the case.

In Yahaya Mohd Tap v Borneo Samudera Sdn Bhd,15 through the process of mediation,
the parties had amicably resolved the dispute. The company had agreed to pay the
claimant a sum of RM70,000.00 as full and final settlement of the claim without any
admission of liability on either of the parties. The claimant had agreed to accept the
settlement sum and the case were accordingly deemed struck off. It was agreed by the
parties that the claimant shall have no further claims against the company hereafter in
respect of this matter.

In The City Bayview Hotel Penang v Mohd Tahir Ibrahim,16 mediation was held and the
Court was informed that the parties had settled the case amicably. The terms of
settlement were as follows:- (i) that the respondent, without any admission of liability
shall pay the claimant a sum of RM50,000.00 and the claimant agrees to accept the said
sum as compensation in full and final settlement of this case; (ii) that the claimant will
not raise any other claim against the respondent in respect of the period of his
employment arising out of his dismissal. The claimant confirms the terms of the
settlement as a consent award.

In Wong Thien Bin v AB Plantations Sdn Bhd,17 the parties had amicably resolved the
dispute through the process of mediation. The company had agreed to pay the claimant a
sum of RM900.00 as full and final settlement of the claim. The claimant had agreed to
accept the settlement sum and the case was accordingly struck off. In Lim Cheng Loke v
Hoko Sdn Bhd,18 through the process of mediation the parties had reached an amicable
settlement of the dispute. The company had agreed to pay the claimant a sum of
RM16,200.00 being an equivalent to 2 months of his last drawn salary. The claimant had
accepted the settlement sum as full and final settlement of his claim and accordingly the
case was struck off.




13
   [2007] 2 LNS 0607
14
   [2007] 2 LNS 0623.
15
   [2007] 2 LNS 0629.
16
   [2007] 2 LNS 0741.
17
   [2007] 2 LNS 0851.
18
   [2007] 2 LNS 0912.


                                            8
In Ahmad Nizam Ibrahim v Swiss Garden Hotel,19 the parties informed the Court that
they were still discussing on the possibility of settling the matter. They also indicated that
they wished the matter to be mediated by the President of the Industrial Court. After the
mediation was held, the parties informed the Court that they have agreed to settle the
matter. The claimant informed the Court that he wished to withdraw the matter as the
matter had been settled amicably and an ex gratia payment had been made to the
claimant. In the circumstances, the matter was struck off by the Court.

In Nggal Jahar v Selat Tebrau Security Service Sdn Bhd,20 through the mediation process,
the parties had amicably resolved the matter. The company had agreed to pay the
claimant a sum of RM4,000.00 as full and final settlement of the claim and that the
claimant had agreed to accept the settlement sum. Accordingly, the case was struck off.
In Omar Sani v Penerbangan Malaysia,21 through the mediation process the parties had
amicably resolved the matter. The company has agreed to pay the claimant a sum of
RM10,637.36 as full and final settlement of the claim, without any admission of liability
on either of the parties and that the claimant had agreed to accept the settlement sum.
Accordingly, the case was struck off and that the claimant shall have no further claims
against the company.

In Inguh Miut & 4 Ors v Jaya Tiasa Playwood Sdn Bhd,22 the case was set down for
mediation before the Assistant Registrar of the Industrial Court. Upon completion of the
mediation, parties amicable resolve the dispute. The Memorandum of Agreement
provides as follows: "We, Inguh ak Miut and George Jimbun ak Rangkang, hereby
agreed to be given a sum of RM3,000.00 (Malaysian Ringgit three thousand only) each as
ex-gratia payment, and further agreed that we will have no further claim from Jaya Tiasa
Holdings Berhad pertaining to the Industrial Court Case No. 8/4-90/05. This sum is final
and full settlement”. Accordingly, the claim was struck off by the Court.

Last but not least is the case of Chua Lai Peng@ Andrew v EM Shipping Sdn Bhd23. In
the above case, through the process of mediation the parties had amicably resolved the
matter. In this regard the parties had agreed to enter into a „consent award‟. The terms of
the award provides that the company has agreed to pay the claimant a sum of
RM16,500.00 as full and final settlement of the claim without any admission of liability.
The claimant agreed to accept the settlement sum. It was agreed by the parties, that upon
receipt and clearance of the said cheque by the claimant's solicitors' firm, the claimant
shall have no further claims in respect of this matter. Accordingly, the case was deemed
struck off.

Effective implementation of mediation in Industrial Court



19
   [2007] 2 LNS 1083.
20
   [2007] 2 LNS 1191.
21
   [2007] 2 LNS 1323.
22
   [2006] 2 LNS 0019.
23
   [2006] 2 LNS 0038.


                                              9
One of the apparent obstacles in the effective implementation of mediation in the
Industrial Court is that the Court has limited jurisdiction and powers. The Court, as noted
earlier, derives its jurisdiction from the reference of the dispute by the Minister and the
law does not require the Minister to refer every matter to the Industrial Court. Further, the
Court‟s contempt power is also very limited and with no power to order payment of cost
of the proceedings. Therefore, for its effective implementation in the industrial justice
system, the suggestion made below may be considered;

(i) Mediation be made an integral part of the Industrial Court system: If the backlog in
the Industrial Court is to be reduced and made manageable and if the alleged injustice by
the Malaysian Employers Federation (MEF) over the formula for calculating back wages
is to be overcome24, it is submitted that the IRA be amended with a view of making
mediation an integral part of the court system. The Industrial Court is an appropriate
place to provide mediation assistance because the Court is a place where, apart from
handing out an award, has the overriding functions of maintaining workplace harmony
and promoting industrial peace. It would be a sad day for the Industrial Court to be turned
into a place to make a small fortune through the adversarial mode. It is therefore,
suggested that section 20 of the IRA be amended by making mediation process a
prerequisite to adjudication by the Industrial Court. Before a disputes could be listed for
adjudication in the Industrial Court the parties has first referred the dispute to a mediator
nominated by the Court and the mediator has certified that it has failed to reconcile the
parties.

The disputants must go through mediation before the case may be listed for adjudication
in the court. The chairman of the Industrial Court will first convene the case as a
mediator. As a mediator, he will be able to tell the parties involved the merits of the case.
Hopefully, the parties will pick up the hints and resolve the case themselves. If the
mediation fails, another chairman would convene the case as a hearing. The same
chairman cannot hear the case because there will be allegations of prejudice and bias.

(ii) Practice direction to refer disputes for mediation: Alternatively, mediation may also
be introduced in the Industrial Court vide a practice direction that requires the parties to
refer their disputes to mediation before the case may be listed for adjudication in the
Industrial Court. The directive must encourage the disputants to embrace mediation and
to appreciate its true value especially in the areas of industrial dispute with the upper
most objective of maintaining industrial harmony.

(iii) Period within which mediation to be conducted be ascertained: It is further
suggested that the mediation among the disputing parties ought to be done as early as
possible. The longer the parties are distant, the more difficult it is to bring them together.
24
  The current practice of the Industrial Court is the assessment of backwages is that, it is assessed from the
date of dismissal to the last date of the hearing subject to the maximum of 24 months. However, since the
Federal Court‟s decision in R RamaChandran v The Industrial Court of Malaysia and Anor, it has been
observed from numerous awards of the Industrial Court, that the scale of backwages has exceeded the
maximum of 24 months. It is humbly submitted that to allow claims exceeding 24 months due to delays
disposal of the dispute for which no party is responsible would be contrary to section 30(5) of the Industrial
Relations Act 1967.


                                                     10
Therefore, there should be a fixed period for mediation, for example between three to six
months from the date of reference for mediation, which may be extended only in cases
where the mediator considers that a settlement is very likely within a short additional
timeframe.

(iv) Industrial Court to be vested with contempt power: Further, it has been suggested by
some quarters that the Industrial Court, in its judicial capacity, should be allowed to hold
the parties in contempt for non-appearance, without reasonable cause, for any mediation
session arranged by the Court. In other words, if a party has been served notice to appear
for mediation and without reasonable cause fails to appear on the date fixed, such non-
appearance shall be treated as a contempt of court and the Court should be able to
commence proceedings for contempt of court. The Court may, in such proceedings, make
an order of committal or impose appropriate fine. The Court may exercise the power so
long as the contemnor is given the opportunity of being heard, and the proceeding has
complied with the procedural tenets of natural justice.

The above is currently being adopted in the Syariah Courts. For example, the Syariah
Court Civil Procedure (Sulh) (Federal Territories) Rules 2004, provides that where any
party, to whom a notice for sulh (or conciliation) has been served fails to appear on the
date fixed for sulh, without reasonable cause, such non-appearance shall be treated as a
contempt of court and the court may commence proceedings for contempt of court in
accordance with section 229 of the Syariah Civil Procedure (Federal Territories) Act
199825. The court may, in such proceedings, make an order of committal for a period not
exceeding six months or may impose a fine not exceeding RM2,000. The same is also
being practiced in some western countries.

Although the power of holding parties in contempt for non-appearance in the mediation
session might sound harsh at the outset, it is submitted that with the inclusion of the
above, it would be transparent to the parties that the Court is taking mediation seriously
and thus it requires full commitment and co-operation from the parties. Mediation should
be encouraged and not forced upon the parties through the penal provision as above. The
positive values of mediation should be made known to the disputants themselves without
influence from their representative or counsels

(v) Industrial Court to be conferred the power to award costs: Another school of
thought had submitted that the Court should also be conferred the power to order such
cost as the Court thinks reasonable. It is suggested that if the mediator, after evaluating
the substantive complaint, were to find that either of the disputing parties are in the
wrong, he should advise the defaulting party to amicably settle the dispute. If however,
the defaulting party objects or refuses to settle, the mediator shall make a note that should
at the trial of the proceedings an award be made against him the defaulting party shall be
liable to pay the other party the cost of the proceedings. This is the practice currently in


25
  Section 229(1) of the said Act provides; “The Court shall have the jurisdiction to commence proceedings
against any person for contempt of Court and may, in such proceedings, make an order of committal for a
period not exceeding six months or may impose a fine not exceeding two thousand ringgit”.


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vogue in some States in Australia and Singapore and the settlement rate has been found
to be excellent. The representatives of the disputants have accepted this practice.

(vi) Adversarial 'hired-gun' mindset to be corrected: Apart from the above, the
adversarial 'hired-gun' mindset has to be corrected. The law school curriculum must move
away from the adversarial nature of teaching and training lawyers by integrating
alternative dispute resolution systems. The law school curriculum must stress on lawyers‟
problem-solving (instead of problem-making) skills i.e., emphasis on dispute settlement
as opposed to litigation. The law students ought to be taught the basic concept of the
alternative dispute resolution at the earliest stage of their legal education. The
mediation/conciliation skills should be integrated into substantive law subjects and to be
reflected in the curriculum, teaching and examination. By having such a programme it is
hoped that the would-be lawyers should be imbued with a mindset of problem solving
and not just acquiring the skill of advocacy in litigation.

(vii) Members of the legal fraternity to promote mediation: Legal advisers must also
play an important role in encouraging parties in dispute to consider the mediation option
at the preliminary stages of a suit, as this would reduce the workload on the courts.
Members of legal fraternity has to place clients‟ interests ahead of their own and have to
discard their litigation mindset and promote mediation though it may lead to less revenue.
Individual lawyers who earn living from the fee he/she charges the client may not be
receptive of mediation because there will be a lesser role for them if mediation is
implemented. The reduced role of lawyers if cases are resolved through mediation is not
entirely correct. The „avant-garde‟ approach today is that the court is the place where
solutions to legal disputes are being found not necessarily through the traditional
adversarial approach but through negotiation and mediation. Through this process more
disputes can be resolved in lesser time and hence productivity increases.

(viii) Public awareness and knowledge of mediation: Also to note is that mediation
would be more effective if disputants could be made more aware of the better value that
mediation can offer such as cost savings of mediation and its potential for repairing
relationships, among others. Therefore, necessary steps should be taken at the grassroots
to increase public awareness and knowledge of mediation. This may be done through
writing in the mass media or specific programmes organised by the legal fraternity.
Through this mode, the disputants would be self-empowered to find better ways to deal
with their dissatisfaction and needs.

(ix) Mediator ought to have the requisite skill and knowledge: Last but not least, in
ensuring the success of mediation, the role of the mediator must be emphasised. The
mediator must guide the negotiation process, advising, listening, and helping parties to
reach a win-win solution or one that all parties can live with. A mediator has to have the
requisite skill and knowledge in terms of understanding the parties desire, collecting
information, facilitating communication, facilitating agreement and ability to manage
cases and documents, among others. His ability to be creative, to be able to deal with
strong emotion, sensitivity, reasoning, emotional stability, analytical skills, interviewing




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techniques, and a sense of commitment to the whole exercise of mediation is equally
important.

Conclusion

Mediation as prerequisite for adjudication of unfair dismissal claim in the Industrial
Court is timely because of its potential of speedy settlement of disputes apart from
reducing the backlog of cases. It is an effective and affordable complement to litigation.
Unlike in a lawsuit, where there would be a winner and a looser, mediation helps the
disputants to find mutually acceptable solution. Only if the parties are unable to resolve
the matter, will the dispute be referred to the Industrial Court for adjudication. Mediation
however, is not and should never be assumed to be a substitute for the judicial system. It
is only an alternative mode of dispute resolution and where mediation fails to bring about
an amicable resolution of the dispute, the case may then be adjudicated in the Court.
Mediation should be emphasised as a mode of labour dispute settlement because of its
potential of assisting the parties to re-establish trust and respect and prevent damage to an
ongoing relationship. The longer the parties are distant, the more difficult it is to bring
them together.




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