Court throws out bid to recuse employer’s counsel in dismissal cases

 

The Industrial Court dismissed the applications of two claimants to recuse T Thavalingam from acting for Mara Corporation, saying he merely provided the company with privileged legal advice which could not be disclosed in evidence.(Facebook pic)

KUALA LUMPUR: 

The Industrial Court has dismissed a bid by Mara Corporation’s former chief executive officer Badlisyah Abdul Ghani and another ex-senior staff member to recuse the company’s lawyer from representing the investment holding company in their unlawful dismissal cases.

Industrial Court chairman Zalina Awang, in an interim award, said T Thavalingam had merely provided legal advice to the company.

She said there was no conflict of interest on the part of Thavalingam in acting for the company and that he was not a relevant and/or material witness in the two cases.

Zalina said the sole reason proffered by Badlisyah and ex-senior director of group investments (financial services) Ramlie Mohamat Kamsari in making the application was that Thavalingam might be called as a witness as he had provided legal advice to the company. 

The said legal advice is indeed privileged. His attendance (if at all) as a witness would therefore be superfluous as he would not be able to disclose his legal opinion,

 she said.

She said any communication between the company and lawyer was covered by legal professional privilege under Section 126 of the Evidence Act 1950.

She added that the legal advice, being privileged, was merely an opinion which the company was at liberty either to accept or reject.

In the current matter, the burden is on the company to prove just cause and excuse based on evidence and documents by the company’s witnesses,

 she said in the 28-page interim award delivered last week.

Zalina said the legal advice given in December 2020 was not at all material to the dispute before her and that Thavalingam was not a relevant or material witness.

The claimant’s preliminary objection under Section 29(g) of the Industrial Relations Act 1967 to disqualify the company’s counsel is therefore not allowed,

 she said.

The human resources minister had referred Badlisyah and Ramlie’s dismissals, allegedly for misconduct, to the Industrial Court.

On Nov 21 last year, the duo made the recusal application, arguing that Thavalingam could run afoul of Rule 28 of the Legal Profession (Practice and Etiquette) Rules 1978, made under the Legal Profession Act, 1976.

That provision states that a lawyer should not appear in a case where he is a witness.

Both men claimed that Thavalingam’s legal advice was contained in the disciplinary committee report issued by the company’s board which ultimately led to their dismissal.

Lawyer V K Raj represented Badlisyah and Ramlie, while Aida Yasmin acted for the company. - FMT