Sivabalah Nadarajah

Practice Areas

Employment & Industrial Relations

Career

Sivabalah has rich experience with trade disputes, collective bargaining, contracts of service, employment issues, industrial actions, judicial reviews, law on dismissals, mergers and acquisitions, minimum wage, occupational health and safety, reorganisations and retrenchment, statutory benefits, and union recognition. He has appeared extensively in the High Court, Court of Appeal, Federal Court and the then Supreme Court, principally for judicial review applications and appeals. The Employment Law Alliance (ELA), the world’s largest network of labour, employment and immigration attorneys, honoured Sivabalah as its “Sheldon N. Sandler Award” recipient in 2020.

Professional Memberships

•Member, Malaysian Bar

•Member, IBA

•Firm Representative, ELA

•Former Board Member and Former Chairman of the ELA’s APAC Regional Committee

Publications

• Law and Practice of Employment Law in Malaysia – Sweet and Maxwell, 2022 [contributor]

Languages Spoken

English, Malay

Experience

N. Sivabalah represented employers in many landmark decisions in the fields of Employment, Administrative & Constitutional Law. The following are a few of these decisions: –

• PP v. Syarikat Tekala Sdn Bhd [2007] 6 CLJ 43

This was a prosecution by the Employees’ Provident Fund (EPF) under Section 68 of the Act. It was successfully argued before the Court of Appeal that the EPF had no jurisdiction to commence and conduct criminal proceedings without the sanction of the Public Prosecutor. The Court of Appeal also ruled that Section 68 of the Act was ultra vires the Federal Constitution.

• Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & another

[1995] 2 MLJ 753

Appeared for the Company. The Federal Court ruled that notwithstanding an express provision in the employee’s contract to hold a domestic inquiry, the failure to hold a domestic inquiry did not render a dismissal automatically unfair.

• Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan & Anor [1996] 1 MLJ 481

This is a landmark decision in the field of administrative law and judicial review where the Court of Appeal broadened the scope of challenge of an exercise of discretion by the Minister under the Industrial Relations Act. Sivabalah appeared for the Company.

• Ranjit Kaur S Gopal Singh Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629

He successfully defended the setting aside of an Industrial Court’s decision in the Federal Court. The Federal Court ruled that the parties were bound by their pleadings in the Industrial Court and this extended to not only setting out facts but also arguments.

• Dr James Alfred v Koperasi Serbaguna Santa Bhd [2001] 3 CLJ 541 [1997] 2 MLJ 685

Appeared for the Company before the Federal Court which upheld the overturning of the long-standing practice of the Industrial Court to award full back wages, without taking into account the subsequent gainful employment of the dismissed employee. The Industrial Relations Act was amended to give effect to this ruling.

• JT International Tobacco Sdn Bhd v. Lau Thow Sin [2006] 4 MLJ 251

Appeared for the Company. The High Court ruled that although the Industrial Court had the power to award full back wages until the last day of hearing, it should not depart from the practice of limiting back wages to a maximum of 24 months unless there was sound reason for doing so. The Act was amended to limit the award of back wages to 24 months.

• British American Tobacco (M) Bhd Employees Union v. Director General of Trade Unions, Malaysia & others [2011] 7 CLJ 478

Successfully argued for the Company that In-house unions could only act for employees in one company and not all the companies in a group.

• Sarawak Shell Berhad v. Ismail Sahat & Ors [2002] 2 ILR 371

The Company departed from the established retrenchment principle of Last In First Out and used its own selection criteria in retrenching employees. The Industrial Court upheld the Company’s use of its own selection criteria. Sivabalah appeared for the Company.

• Supermix Concrete (M) Sdn Bhd v. Teoh Boon Beng [1987] 1 ILR 274

Section 20 of the Industrial Relations Act, 1967 previously provided that an employee, claiming that his dismissal was without just cause and excuse had to lodge his representations within one month of the dismissal. The employee was given notice of termination and had lodged his representations before the notice had expired. Successfully argued that the representation was premature and the Industrial Court had no jurisdiction to hear the matter. The Supreme Court upheld this decision and this led to the amendment of Section 20 of the Act to allow representations during the notice-period.

• Beatrice Fernandez v Sistem Penerbangan Malaysia & Anor [2004] 4 CLJ 403

Represented Malaysian Airlines System where the Court of Appeal ruled that the dismissal of a stewardess on the grounds of her pregnancy was not unconstitutional.

Education

Awards