JUDGE ERRED - A recent Media Report entitled 'Worker cannot sue employer after Perkeso payout, says court' ...... and the report also said 'However, the court said he had received RM46,978.66 in temporary disability payments from Perkeso between January 2020 and March 2021, preventing him from suing Great Piling over the same workplace injuries.' Media need to be careful in their reporting - this time it's report may also mislead people > because, the TRUTH is that a SOCSO/PERKESO benefit should NEVER prevent worker victims suing Employers..
In my opinion, also as a lawyer, this Sessions Court Judge ERRED or made a serious mistake. Judges and lawyers must never MISLEAD and must reasonably be aware of the law as is. The wordings of Section 31 may be 'misleading' but attention must be given by lawyers and judges to the development of the law.
there was no rhyme nor reason why the employer by contributing towards SOCSO compensation scheme would be immunised against all claims for aggravated and exemplary damages even if they were grossly negligent in providing a safe place of work for their employees. - Lee Swee Seng JCA,[2020] 9 CLJ 510
How many worker victims(some killed) have been DENIED Justice by reason of this badly worded MISLEADING provision in LAW, and lawyers/judges who simply failed to be keep themselves updated in the law including judgments of higher courts?
How many worker victims did not SUE or did not sue in time within 6 years or before Limitation BARs them from suing?
Sometimes, it may be case of a LAWYER giving bad advice - and mind you, in this case, the worker victim or deceased families can also commence legal actions against such lawyers for professional negligence... One expect better from Judges...
I do hope that in this case the victims APPEAL the decision to the HIGH COURT, or later to the Court of Appeal, as the HIGH COURT Judges also have made similar error that was pointed out by the Court of Appeal in the case of . RAJENDIRAN MANICKAM & ANOR v. PALMAMIDE SDN BHD & ANOR COURT OF APPEAL, PUTRAJAYA,[2020] 9 CLJ 510
On appeal, the learned High Court Judge was of the view that the single issue was whether a claim under the Socso Act debars any further claim under common law. The learned High Court Judge said that s. 31 of the Socso Act expressly bars an insured person from recovering any further compensation or damages under any law from the employer if he had already received compensation under the Act. ..
The COA appeal in this case set aside the High Courts decision, and sent the case back for continued hearing by the Sessions Court - the COA said,'...We unanimously agreed that the matter should be sent back to the Sessions Court for trial and that the order of the High Court striking out the plaintiffs' claim be set aside with costs in the cause.
An injured worker or the family of a DECEASED worker, even after he gets SOCSO/Perkeso benefits can and must be able to STILL sue his employer to get additional compensations and/or damages from the EMPLOYER especially if the said employer FAILED, by omission/action(and worse did not ensure compliance of standards required by law) to ensure the workplace was safe - and that no worker will be injured, suffer partial/permanent disabilities, or DIES.
To suggest that any INSURANCE and/or SOCSO/PERKESO pay outs BARS the victim from suing the EMPLOYER, selected staff, Directors,...for EXTRA compensation is ABSURD and totally UNJUST. It also 'ENCOURAGES'(Not Deters) bad employers to not do needed to ensure WORKPLACE safety - for even, if any accident, injury death happens by reason of employer's failings - they are PROTECTED because they simply will not be liable to COMPENSATE the victims - PERKESO payouts/benefits are there....well SO MUCH CHEAPER that doing all that is needed to ensure worker safety?
The Section 31 is BAD LAW, and can has a high tendency to DECEIVE worker victims, family of deceased workers from claiming their RIGHTS from Employers and others involved.
It can also MISLEAD 'bad' lawyers and judges, too....
Section 31 Liability of employer and his servant [EMPLOYEES' SOCIAL SECURITY ACT 1969]
An insured person or his dependants shall not be entitled to receive or recover from the employer of the insured person, or from any other person who is the servant of the employer, any compensation or damages under any other law for the time being in force in respect of an employment injury sustained as an employee under this Act:
Provided that the prohibition in this section shall not apply to any claim arising from motor vehicle accidents where the employer or the servant of the employer is required to be insured against Third Party Risks under Part IV of the Road Transport Act 1987 .
If anyone read this provision, they can be easily DECEIVED into believing, that for any industrial or workplace accident, the EMPLOYEE or their family(if the worker DIED) should just accept whatever is the PERKESO/SOCSO benefit - and HAVE no RIGHT to take further court action against the Employer or its Directors, employees,... for more COMPENSATION.
PARLIAMENT has failed to do the needed amendment/repeal even after the COURT of APPEAL has highlighted the flaw and injustice since 2020 or earlier...
THIS is FALSE because lawyers/judges that read Court Judgments(including Court of Appeal judgments would KNOW that injured or deceased workers still can SUE and get additional damages/compensations from their employer.
If the accident was caused by an Employer intentionally by way of OMISSION or Action - maybe not making the workplace safe - then should payouts of PERKESO benefits absolutely PROTECT such Employers.
The wordings of the law also may even encourage EMPLOYERS to not be bothered about keeping the WORKPLACE safe...after all, this Section 31, on the face of it, says that the injured or dead workers cannot SUE the Employer, the Manager, the Supervisor, the Directors ANYMORE - and the deceased or injured's claim is just LIMITED to whatever PERKESO/SOCSO gives you.
Is this NOT a PRO-EMPLOYER law, protecting even the 'BAD' employers that knowingly failed to ensure that workplace is SAFE...maybe to save 'money'.
So, does this LAW DETER workplace accidents or PROMOTE workplace accident - as EMPLOYERS are protected - all they have to do is that they and their worker make their monthly SOCSO/PERKESO contributions...
In other LAWS that provide for COMPENSATIONS - there is usually provisions like 'but the order for payment shall not prejudice any right to a civil remedy for the recovery of any property or for the recovery of damages beyond the amount of compensation paid under the order.'
SUGGESTION - Thus, for Section 31, it best be REPEALED - or if amended, then it should be amended as such.
Section 31 Liability of employer and his servant [EMPLOYEES' SOCIAL SECURITY ACT 1969]
An insured person or his dependants shall
notbe entitled to receive or recover from the employer of the insured person, or from any other person who is the servant of the employer, any compensation or damages under any other law for the time being in force in respect of an employment injury sustained as an employee under this Act:
Provided that the prohibition in this section shall not apply to any claim arising from motor vehicle accidents where the employer or the servant of the employer is required to be insured against Third Party Risks under Part IV of the Road Transport Act 1987 .
A clear provision could also be added to this SECTION must be added with wordings like 'insurance of SOCSO payouts shall not prejudice any right to a civil remedy for the recovery of any property or for the recovery of damages beyond the amount/benefits of SOCSO or any other insurance'
Parliament must also REPEAL, and or amend Sec.31 EMPLOYEES' SOCIAL SECURITY ACT 1969 - so that it is CLEAR about victim's rights to still sue and get more compensation/damages especially from employers who by way of omission/action failed to ensure safe working conditions/environment so that no worker will be killed/injured.
For information, see what Court of Appeal said when dealing with this bad Section 31...
The plaintiffs' claim was inextricably linked to the issue as to whether the plaintiffs, even if they be so barred, should be given the right to pursue a claim for aggravated and exemplary damages for gross negligence on the part of the defendants as employers. The SOCSO Act being a social piece of legislation, there was no rhyme nor reason why the employer by contributing towards SOCSO compensation scheme would be immunised against all claims for aggravated and exemplary damages even if they were grossly negligent in providing a safe place of work for their employees. Here it was alleged that instead of shutting down the operation of the factory whilst the contractor attended to the welding works, the defendants had wanted the employees to continue working to ensure that production was not adversely affected... (paras 16, 18 & 22) ...It appeared to be a double whammy when, because of no income arising from being hospitalised and not being able to work, one has to resort to a quick compensation for loss of income arising from such a disability, only to be told that just because some payments have been made under the SOCSO compensation scheme, the injured employees are now barred from claiming against their employer under common law for damages under negligence or occupier's liability.' - Lee Swee Seng JCA,[2020] 9 CLJ 510
In another case, where the Court struck off the injured worker's claim because of Sec.31, the Court of Appeal set aside the striking out order - and send the case back to the case to the first court...
[6] On appeal, the learned High Court Judge was of the view that the single issue was whether a claim under the Socso Act debars any further claim under common law. The learned High Court Judge said that s. 31 of the Socso Act expressly bars an insured person from recovering any further compensation or damages under any law from the employer if he had already received compensation under the Act. ..
[41] The plaintiffs' claim may be weak but that is no justification for striking out in limine when yet another attempt is made by testing the limits of the law where in a case of a social piece of legislation, any ambiguity has to be resolved in favour of the injured employee.
[42] We dare not say the plaintiffs' claims are completely hopeless and a total non-starter. This is certainly not a plain and obvious case where the plaintiffs' claim should be struck out. A smoldering wick should not be snuffed out at this stage in as much as a bruised reed may yet blossom in the days ahead.
[43] We unanimously agreed that the matter should be sent back to the Sessions Court for trial and that the order of the High Court striking out the plaintiffs' claim be set aside with costs in the cause. RAJENDIRAN MANICKAM & ANOR v. PALMAMIDE SDN BHD & ANOR COURT OF APPEAL, PUTRAJAYA,[2020] 9 CLJ 510
Additional NOTES
PERKESO/SOCSO is not an INSURANCE purchased by EMPLOYERS ONLY - but every worker also makes SOCSO/PERKESO contributions - so, this 'insurance' scheme is maintained by both workers and employers.
IF the Employer proves that he had followed the LAW and ensured that the workplace conditions were SAFE as required by Law > then maybe, the Courts may decide that the employer do not need to pay the worker victim any compensation...However, if the accident resulted by reason of the Employer's Actions/Ommissions or NEGLIGENCE, then justly the Court should order the EMPLOYER to pay the worker victim JUST Compensation/Damages.
It must be noted that the NORM is that the LAW provides ONLY Minimum Rights, including compensations,.. > thus, it MUST be a RIGHT of worker victims to be able to claim for more damages/compensations from Employers who has the DUTY and RESPONSIBILITY of ensuring that the WORKPLACE is safe...
LET us look at some laws that deal with COMPENSATION/Damages...'but the order for payment shall not prejudice any right to a civil remedy for the recovery of any property or for the recovery of damages beyond the amount of compensation paid under the order.' - YES, the VICTIM can still claim for additional damages/compensation from the CONVICTED > This is HOW IT MUST BE..
IN Section 426 Criminal Procedure CODE - the COURT has the power to '...make an order against the convicted accused for the payment by him, or where the convicted accused is a child, by his parent or guardian, of a sum to be fixed by the Court as compensation to a person who is the victim of the offence committed by the convicted accused in respect of the injury to his person or character, or loss of his income or property, as a result of the offence committed....' (Sec 426(1A)).. However note Section 426(4) which states
(4) To the extent of the amount which has been paid to a person, or to the representatives of a person, under an order for compensation, any claim of such person or representatives for damages sustained by reason of the offence shall be deemed to have been satisfied, but the order for payment shall not prejudice any right to a civil remedy for the recovery of any property or for the recovery of damages beyond the amount of compensation paid under the order.
WE DO NOT WANT A LAW THAT PROTECT EMPLOYERS - that prevents the VICTIMs from being able to SUE for Damages/Compensation from EMPLOYERS or the 'GUILTY' who had failed intentionally or negligently to ensure the workplace is SAFE and no worker will be injured/disabled/ or DIE.
INCREASE PERKESO disability pensions and survivor pensions,etc provided by SOCSO (as cost of living has certainly increased) - PM ANwar said pensions will be increased > thus reasonably PERKESO pensions should also be increased???
The government will increase the minimum monthly pension from RM1,000 to RM1,350, benefitting nearly 59,000 retirees, armed forces veterans, and recipients of derivative pensions. - FMT, 9/10/2026
Another issue is the COST award by the Sessions Court -He was ordered to pay RM5,000 in costs to Great Piling(the employer) - JUSTLY there should be no ORDER of cost to be paid by worker - and the cost award of RM5,000 is almost 3 MONTHS Minimum Wage...SUCH Cost ORDERS will DETER the poor worker or the poor from going to Court, or even filing Appeals to HIGH COURT (in this case) - It should heva been no COST order or just a nominal cost order of RM50 - RM100? Or is the COURTS trying to DETER the poor from going to COURT to get justice?
Worker cannot sue employer after Perkeso payout, says court
Sessions court dismisses crane operator’s suit against company and two others over a workplace accident, after he received nearly RM47,000 in temporary disability payments.
Sessions court judge Norzafirah Ali said Section 31 of the Employees’ Social Security Act 1969 prevented workers covered by the Social Security Organisation (Perkeso) from making a civil claim against their employers over injuries suffered at work.
Norzafirah issued the ruling over a suit filed by Ng Poh Guan, 63, who said he slipped and fell while climbing down a crane at a construction site in Seberang Perai Selatan on Jan 3, 2020.
Ng sued his employer, Great Piling Sdn Bhd, as well as Iconic Construction Sdn Bhd and Iconic Development Sdn Bhd, claiming the three companies were responsible for the accident.
However, the court said he had received RM46,978.66 in temporary disability payments from Perkeso between January 2020 and March 2021, preventing him from suing Great Piling over the same workplace injuries.
Norzafirah noted that the same rule did not automatically protect Iconic Construction and Iconic Development because they were not Ng’s employers, and that he could have succeeded against them had he proven they were responsible for the site or had contributed to the accident.
However, the court found that Iconic Construction only took over the site on Feb 18, 2020, more than a month after the incident, and that Iconic Development was not in charge of the site at the time.
The site was then under a different company, which had hired Great Piling to carry out piling work.
The court said neither Iconic Construction nor Iconic Development had direct control over Ng or the crane, and Ng had, therefore, failed to prove that either company was responsible for his injuries.
Ng’s suit against all three companies was dismissed. He was ordered to pay RM5,000 in costs to Great Piling and RM2,500 each to Iconic Construction and Iconic Development.
Lawyer Lim Ee Theng appeared for Ng, while P Paannimalar appeared for Great Piling, and S Parameswaran appeared for Iconic Construction and Iconic Development.
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