DECEMBER 11 — Have you ever wondered what happens to your Industrial Court case if you die before it’s completed?
Imagine fighting for months or years for your workplace rights, only for the claim to abruptly stop because you are no longer around.
Before the amendments to the Industrial Relations Act 1967 (‘IRA’) that took effect in 2021, this will actually happen.
Back then, if a workman passes away, his case in the Industrial Court would basically end.
The 2020 amendments to the IRA completely changed this.
Claims can now continue after a workman’s death, allowing family members to claim the awards and compensation in lieu of reinstatement the deceased would have been entitled to, protecting both the workman’s rights and the family’s financial well-being.
When justice continues after death
Section 30(6B) of the IRA is a key 2020 amendment allowing the Industrial Court to award backwages and compensation in lieu of reinstatement to the next-of-kin of a deceased workman, even if the workman passed on during proceedings, giving the Court power to continue the case for financial remedy, a significant change to protect workmen’ claims even after death.
A good example is the recent Industrial Court case of Muhammad Nazifi Kusnun v. Pengurusan Air Selangor Sdn Bhd.
In that case, the workman passed away before the trial started and, leaving only an unsigned list of questions and answers, which could not be considered as a proper witness statement.
His widow, the only witness, admitted she didn’t know the details firsthand and could only repeat what her husband had told her.
Most of her testimony was hearsay and was therefore not accepted by the Court.
The hearsay problem: Challenges for families
The Industrial Court pointed out that hearsay from family members is a big issue under Section 29(ea) of the IRA, which allows cases to continue after the workman dies.
Before this, the Court could simply dismiss the case if the workman passed away.
Usually, the employer must prove the dismissal was fair and adduce admissible evidence.
Workman often is his own main witness; if he passes on, family members may take over the case.
Courts must carefully check what evidence is admissible to keep the process fair.
Even though the Evidence Act 1950 doesn’t fully apply in the Industrial Court, the Court still needs to watch out for hearsay evidence.
Timing matters: Before vs after testimony
One important factor to determine is at what stage of the trial proceeding when the workman passed away.
If a workman passes on before giving testimony, the Court must rely on family members to present the case, often through hearsay or second-hand evidence, or unsigned statements.
As seen in Muhammad Nazifi Kusnun, this makes it almost impossible to prove the deceased’s claim.
In such cases, remedies for the family may likely come to an end.
If a workman passes on after giving testimony, much of his evidence is already recorded.
Family members can continue the case using first-hand admissible evidence, which makes the case credible and improves the chances of a positive outcome.
Cases like Muhammad Nazifi Kusnun show how tricky it can be to deal with evidence when a workman passes on during a case.
Industrial Court wrongful dismissal claims, usually rely on the workman’s own account of what happened.
When the workman is no longer alive, the Court must rely on second-hand or hearsay evidence from family members or solely based on documentary evidence, which may be incomplete or inadmissible — making it harder to win the case.
Start early, secure evidence
The practical solution: start the trial promptly and conclude it as early as possible while the workman can give testimony, so that key evidence is properly recorded and the case is more likely to succeed.
* Leonard Yeoh is a partner and Pua Jun Wen a senior associate with the law firm, Tay & Partners.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
