Sivabalah Nadarajah

Partner
Head, Employment & Administrative Law

Key Practices

Qualifications

  • LL.B (Hons), University of Malaya
  • Advocate & Solicitor, High Court of Malaya

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.

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 v. 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.
  • Kathiravelu Ganesan & Anor v. Kojasa Holdings Berhad [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.

Asialaw Leading Lawyers (2014 – 2016)

Labour and Employment – Leading Lawyer

Leading employment lawyer Sivabalah Nadarajah is described by a client as “highly reliable, very swift and efficient” – Asialaw Profiles 2014

Sivabalah Nadarajah, a partner within the team has been singled out for praise: “We maintain a long-standing relationship with certain partners, and appreciate their good reputation and professionalism. I would particularly highlight their labour and employment practice with Sivabalah Nadarajah.” – Asialaw Profiles 2016

Asialaw Leading Lawyers (2017 – 2019)

Labour and Employment – Market Leading Lawyer

Efficient, professional & patience” Sivabalah Nadarajah, practice head and market-leading lawyer. - Asialaw Profiles 2018

Asialaw Leading Lawyers (2020 and 2021)

Labour and Employment – Elite Practitioner

Benchmark Litigation Asia-Pacific (2019 and 2020)

Identified as a Litigation Star in Commercial and Transactions, Dispute Resolution and Labor and Employment

Chambers Asia-Pacific (2010 – 2020)

Employment and Industrial Relations – Leaders in their Field

He heads the firm's employment group and sources observe that they have "nothing but the greatest things to say about him." - Chambers Asia-Pacific 2013

"Top-notch lawyer" Sivabalah Nadarajah is the firm's leading employment and industrial relations expert. He is admired by clients for his wealth of experience and for his quick and decisive ability "to put his legal advice within the context of our business." - Chambers Asia-Pacific 2014

Clients report: "He has been in this field for a long time and has acted for multinationals - that experience is very useful." - Chambers Asia-Pacific 2015

He is commended by clients for his "sound, prudent advice" and is "very well respected" among his peers. - Chambers Asia-Pacific 2016

Clients describe him as "very humble - one of the leading lawyers, offering very sound and practical advice".- Chambers Asia-Pacific 2017

Described by sources as a "key player in the market," he acted for Bank Muamalat in a case brought by NUBE, which sought an injunction over the branch transfer of three employees.” - Chambers Asia-Pacific 2018

Clients report that he possesses "in-depth knowledge of employment law" and offers "an easy approach, providing practical solutions." Chambers Asia-Pacific 2019

The Legal 500 Asia-Pacific (2019 and 2020)

Labour and Employment – Leading Individual

The Legal 500 Asia-Pacific (2016 – 2018)

Labour and Employment – Recommended Lawyer

Expert Guides (2018 and 2019)

Labour and Employment – Leading Practitioner

Who’s Who Legal (2015 – 2018)

Recognised as an Expert in Labour, Employment & Benefits

Who’s Who Legal (2019)

Recognised as a Global Leader in Labour, Employment & Benefits

  • Member, Malaysian Bar
  • Member, International Bar Association (IBA)
  • Firm Representative, Employment Law Alliance (ELA)
  • Former Board Member and Former Chairman of the ELA’s APAC Regional Committee