Industrial Court disputes sometimes involve procedural applications about where a case should be heard. These applications are made where one party believes that another venue would be more appropriate, whether for reasons of convenience, fairness, cost, or the location of witnesses and evidence. Although such applications may appear administrative, they can have practical implications for how efficiently a dispute proceeds and the costs incurred by the parties.
This issue arose in Gunalan a/l Batumalai v Miri Marriott Resort & Spa (Award No. 228 of 2026) [2026] MELRU 228, where an employee applied to transfer his case from Kuala Lumpur to Miri, Sarawak.
Brief Facts
When he was employed by the Company, the Claimant was based in Miri. However, by the time his unfair dismissal representation was referred to the Industrial Court, he had moved back to Kuala Lumpur. His matter was referred to the Kuala Lumpur Industrial Court.
The Claimant applied to transfer his unfair dismissal proceedings from the Kuala Lumpur Industrial Court to Miri, arguing that Miri was the more appropriate forum because:
- His lawyer was based in Miri.
- His last place of employment was in Miri
- His complaint was first lodged with the Miri Labour Office
- Some witnesses were likely to be based in Miri
The Company opposed the application because the Claimant was already residing in Kuala Lumpur – transferring the matter to Miri would result in more costs for the Claimant. Further, the Company had appointed lawyers in Kuala Lumpur, who could not represent the Company if the case was referred to Miri. A transfer to Miri would deprive the Company of their counsel of choice.
Court’s Findings
Transfer of Proceedings
Under Section 29(g) of the Industrial Relations Act 1967, the Industrial Court can transfer cases to locations where necessary for expeditiously determining the dispute.
However, such applications are not automatic. The applicant must provide convincing reasons why the case should be heard elsewhere.
There is no one overriding factor that will determine whether a case should be transferred, but relevant considerations can include:
- Location of the parties and witnesses
- Travel and logistical costs
- Inconvenience or hardship
- Whether the transfer would prejudice either party
Right to Counsel of Choice
The Court considered the parties’ ability to retain their chosen lawyers. The Claimant’s Sarawak lawyer could appear in the Kuala Lumpur Industrial Court with the Court’s permission under Section 38(1)(i) of the Legal Profession Act 1976 (which provides that the Industrial Court is exempt from the prohibition against non-qualified persons performing the roles of an advocate and solicitor) and Rule 3(1) of the Industrial Court Rules 1967.
However, if the case were transferred to Sarawak, Section 8 of the Sarawak Advocates Ordinance would restrict representation to only lawyers admitted to practise in Sarawak. There is no equivalent exemption for the Industrial Court as in the Legal Profession Act 1976. This effectively prevents the employer’s Peninsular Malaysia lawyers from appearing, causing prejudice to the employer.
Balancing Competing Interests
The Court also rejected the Claimant’s hardship argument, noting that he was already residing in Kuala Lumpur. There was no need for the Claimant to incur expenses to travel to Miri for his case, if the case is maintained in Kuala Lumpur.
The Court emphasised that it functions as a court of equity and good conscience for both employee and employer, and must balance the interests of both parties:
“…[the Claimant views] any prejudice to the Company as something that can fairly be disregarded simply because the employer is a corporate entity that has more money than an individual employee. This Court finds that this is against the fundamental principle that the Industrial Court functions as a court of equity and good conscience for both employee and employee…
Allowing the Application and effectively barring the Company from its chosen legal representation would cause prejudice, disrupt continuity, and increase costs. The Claimant has not demonstrated that his alleged hardship outweighs the Company’s legal disadvantage.
This Court finds that even though the Application was framed as a procedural request, in substance marauds as an attempt to cause unnecessary difficulty and hurdles to the Company, such as compelling the Company to relinquish its Counsel of choice. Such a consequence goes beyond mere inconvenience and would cause substantive prejudice to the Company.”
Since the Claimant’s lawyer could appear in Kuala Lumpur but the employer’s lawyers could not appear in Sarawak, the balance of convenience favoured maintaining the proceedings in Kuala Lumpur.
Key Takeaway
An application to transfer venue under Section 29(g) of the Industrial Relations Act 1967 is not a rubber stamp exercise. The party seeking the transfer must demonstrate clear and persuasive reasons why the case should be heard at another location. The Industrial Court will assess the totality of the circumstances, including the location of the parties and witnesses, the potential costs and logistical implications, and whether the transfer would cause prejudice or procedural disadvantage to either side.
This case demonstrates that a party’s right to retain its chosen legal representation may also be a relevant consideration. As illustrated in this case, where differing legal practice rights apply between Peninsular Malaysia and Sarawak, transferring venue may effectively prevent one party’s lawyers from appearing. Where this would occur, the Court can consider this as a factor to determine whether a transfer should be ordered.
The Industrial Court will approach such applications through its guiding principle of equity and good conscience. The Court will not favour one party’s convenience over the other’s, particularly where the requested transfer would create substantive prejudice or strategic disadvantage. Parties should therefore be mindful that venue transfer applications must be grounded in genuine necessity rather than tactical considerations.
Employees may occasionally have to attend court, whether as parties to a dispute, as an accused in criminal proceedings, or witness. In more serious situations, an employee may even be remanded in custody or sentenced to imprisonment.
In such situations, the employee’s attendance at court is usually mandatory. Must the employee be paid their salary for the days spent in detention or attending court?
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This article was written by Nalina Santhiran (Associate) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation.
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