Loh Guet Ching v. Menteri Sumber Manusia & Ors
KL High Court Judicial Review Application No. WA-25-296-10/2020
This morning, the High Court dismissed an e-hailing driver's judicial review application seeking the right to be heard before the Industrial Court.
The Applicant, Loh Guet Ching, worked as an Grabcar driver until November 2019, when her account was suspended due to purported breaches of Grabcar's terms and conditions of service. She had subsequently filed a representation for unfair dismissal at the Industrial Relations Department seeking for reinstatement. The Minister of Human Resources (“the Minister”), in exercising his discretion under section 20 of the Industrial Relations Act 1967, had declined to refer the matter to the Industrial Court.
Dissatisfied with the outcome, the Applicant proceeded to file a judicial review application seeking to quash the decision of the Minister and to compel him to refer her claim to the Industrial Court.
At the High Court, the Applicant essentially contended that she had a right of recourse to the Industrial Court and the Minister should have referred her claim for adjudication.
In responding to her application, Grab asserted, among others, that e-hailing drivers were not employees/workmen within the strict parameters of the Industrial Relations Act 1967 and the contract between Grab and its drivers was essentially a commercial agreement. For these reasons, Grab contended that the Minister was correct in not referring the matter to the Industrial Court.
Grab had also sought to distinguish the recent UK Supreme Court case of Uber BV and others (Appellants) v Aslam and others (Respondents) [2021] UKSC 5 and highlighted the fact that in Arachchige v Rasier New Zealand Ltd & Uber B.V. [2020] NZEmpC 230, the New Zealand Employment Court had ruled that an e-hailing driver was not an employee.
The Minister, represented at the High Court by Federal Counsel, Adiba Iman Md Hassan from the Attorney General’s Chambers, took the position that having examined the material placed before him, the Applicant’s case did not satisfy the threshold requirements for the same to be referred to the Industrial Court.
Justice Dato’ Ahmad Kamal bin Md Shahid, after hearing prior submissions from all parties, dismissed the Applicant’s judicial review application.
Grab (named as MyTeksi Sdn Bhd) was represented by our Managing Partner, Dato' Thavalingam C. Thavarajah and Associate, Rebecca Sonali Alfred.