Dismissal without proper warnings constitutes unjust termination, necessitating reinstatement and compensation.

Table of Content
1. jurisdiction established through ministerial reference. (Para 11 , 17)
2. dismissal requires sufficient warning for performance issues. (Para 12 , 13 , 14 , 15)

"20(3) Upon receiving the notification of the Director General under subsection (2), the Minister may, if he thinks fit, refer the representations to the Court for an award."

[Emphasis Added]

[11] Unlike the civil courts where monetary compensation is often the main remedy for the aggrieved party, the principal remedy in the Industrial Court is reinstatement. The workman makes representations in writing to the Director General of Industrial Relations to be reinstated to his former employment under s 20(1) of IRA . The Minister then if he thinks fit refer the aforesaid representations to the Industrial Court pursuant to s 20(3) of . Therefore, the representations referred to the Industrial Court must necessarily be confined to the representations for reinstatement made by the workman.

[12] The Learned Counsel for the Company made reference to the High Court's decision in Holiday Inn Kuching v. Elizabeth Lee Chai Siok , [1992] 1 MLJ 230 where the claimant in her representation initially wanted reinstatement but subsequently in the hearing before the Industrial Court had changed her stand and instead asked for damages in lieu of reinstatement. The Learned Judge, Haidar Mohd Noor held as follows:

"In my view the respondent clearly could not come within the provisions of s 20(1) and (3) of IRA as the legislature intended that recourse to the Industrial Court is only in respect of reinstatement and once reinstatement is no longer applied for the Industrial Court ceases to have any more jurisdiction."

[13] On the issue of right to compensation, the Learned High Court Judge made reference to Dr A Dutt v. Assunta Hospital , [1981] 1 MLJ 304 where Chang Min Tat FJ stated as follows:

"The right to compensation must be an issue in representations for reinstatement and necessarily arises where the Court would not order reinstatement..."

"The Court shall not be restricted to the specific relief claimed" must, in the case of representations for reinstatement under s 20(1), which we have observed is the logical claim to be made by the workman, mean an award not only in addition to the order for reinstatement, but also in compensation for the reinstatement that the Court would not award."

"If a workman complains he has been dismissed without just cause of excuse, it does mean that he is dissatisfied with his dismissal or termination of service and he want his job back. However, there may exist circumstances and reasons why reinstatement should not be ordered."

[14] The Federal Court has stated that the right to compensation must be an issue in the representations for reinstatement. It must have arisen from and/or in connection with and/or in relation to the representations for reinstatement. It cannot be sought devoid of the remedy of reinstatement under s 20 of IRA .

[15] In The Borneo Post Sdn Bhd v. Margaret Wong , [2001] 8 CLJ 758, the Claimant specifically requested that the Court not to order reinstatement to her previous employment because she feared being humiliated and victimised again by the management, even though she was, at the date of the hearing, gainfully employed with a lower salary. The Learned Judge, Denis Ong as he then was, held as follows:

"On a fair reading of that section, it would be correct to say that the respondent would have liked to be reinstated and would have specifically prayed for it but if her past experience was any guide, reinstatement would be inappropriate or inexpedient."

The High Court in The Borneo Post's case took into consideration of the intention of the claimant and the constraints imposed upon the claimant by her circumstances.

[16] Bearing in mind the facts of The Borneo Post's case and the similarities with our present case, I am of the opinion that the decision of The Borneo Post's case is the preferred decision to apply to

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