Mohamed Dzaiddin b. Hj. Abdullah J: The issues in this application for an order of certiorari to quash the decision of the Industrial Court ("the Court") Award No. 148/91 are quite straightforward, namely, whether the charge for which the Claimant was found guilty by the Applicant on 6 February 1988 was a misconduct known to industrial law, common law or statutory law and if so whether the Court had committed an error in jurisdiction when it held that the Claimant's dismissal was without just cause or excuse. Secondly, did the Court act in excess of its jurisdiction when it failed to properly consider the charge made out against the Claimant by the Applicant but instead relied on irrelevant matters which were not relied upon by the Applicant.

The facts of the case have been concisely set out in the Award of the Chairman dated 16 May 1991 (ARH-9) in lampiran 1). However, in order to answer the above posers, I need to highlight some of the material facts. The Claimant was an employee of the Applicant since 1968 and his last job was as a furnace labourer in the production department. On 7 February 1988, he was dismissed from his job because of excessive medical leave taken by him over a period of time between the years 1982 to 1987. The rate of his absences from work appeared in the charge. From the list of the types of medical problems of the Claimant, it appeared that most of the illnesses were minor in nature. It is noted that in 1987 the Claimant met with a motor accident and was hospitalized as a result of which he was given 43 days medical leave. The balance of 40 days was due to ordinary sickness. In August 1985 he was examined by the Applicant's doctor where he was certified fit for work. In view of his excessive medical leave in 1985, the Applicant issued a show-cause letter to the Claimant in January 1986 asking him to give a written explanation regarding his excessive medical leave in 1985. In 1986 he was also required to present himself before a counselling panel where he was advised not to abuse the medical facilities and that he should improve his attendances at work. Further counselling took place in 1987. However, despite such counselling, he continued to be absent on medical leave. He was further advised to adopt a positive attitude in his work.

The Applicant, being unhappy with the Claimant as he had not shown any improvement in his work, finally issued the show-cause letter requiring the Claimant to give a written explanation why a disciplinary action should not be taken against him. The Claimant responded and gave his reasons and maintained that no disciplinary action should be taken against him as he was entitled as of right to medical leave under Article 28 of the collective agreement and under the law. The Applicant was not satisfied with the Claimant's explanation and on 22 February 1988 held a domestic inquiry for the Claimant to answer the following charge:

1982 - 27% of available mandays per year;

1983 - 23% of available mandays per year;

1984 - 21% of available mandays per year;

1985 - 25% of available mandays per year; 1986 - 17% of available mandays per year;

1987 - 42% of available mandays per year;

At the end of the inquiry the Claimant was found guilty as charged and was recommended by the Board of Inquiry to be dismissed. By a letter dated 6 February 1988, he was informed of his dismissal with effect from 7 February 1988. In a reference to the Court under s 26(2) of the Industrial Relations Act 1967 , it found that the Claimant was dismissed without just cause or excuse.

Considering the above charge in