The Federal Court has dismissed an application by former Grab driver, Loh Guet Ching, seeking leave to appeal against a Court of Appeal decision that upheld the Human Resources Minister’s refusal to refer her alleged unfair dismissal case to the Industrial Court.
Panel and Decision
The three-member panel, comprising Chief Justice Tengku Maimun Tuan Mat, Justice Nallini Pathmanathan, and Justice Rhodzariah Bujang, found that the questions of law presented did not meet the requirements under Section 96 of the Courts of Judicature Act 1964. The decision was delivered in online proceedings, with no order as to costs.
Questions of Law
Loh’s lawyer, Ng Kian Nam, sought the court’s determination on six legal questions concerning whether e-hailing drivers and gig economy workers should pursue unfair dismissal disputes in the industrial or civil courts. However, the Senior Federal Counsel, Nik Noor Nik Kar, and lawyer T Thavalingam, representing MyTeksi Sdn Bhd (operating under Grab), contended that the questions were not novel and thus did not justify the appeal.
Legal Requirements for Federal Court Appeal
For an appeal to be heard by the Federal Court, the applicant must demonstrate that the proposed appeal raises new legal or constitutional questions of public importance that have not been addressed previously and require further arguments.
Case Background
Loh had filed a claim with the Industrial Relations Department seeking reinstatement with MyTeksi. The Human Resources Minister, exercising his discretion, declined to refer the case to the Industrial Court. Loh subsequently filed a judicial review application, which was dismissed by the Kuala Lumpur High Court on July 9, 2021, a decision affirmed by the Court of Appeal on November 27, 2023.
The Court of Appeal ruled that Grab drivers do not fall within the category of “workmen” as defined under Section 2 of the Industrial Relations Act 1967, and therefore, cannot file representations for unfair dismissal at the Industrial Court.
Incident Leading to the Case
In early 2019, Loh reported Grab to the Industrial Relations Department, alleging unfair removal from the platform following a dispute with a passenger at Senai International Airport, Johor, in November 2018.
This ruling highlights the ongoing legal debate regarding the classification and rights of gig economy workers in Malaysia.