In breach of employment cases, dismissal does not preclude claims for damages.

[1] There are three appeals before us arising from a judgment of the High Court. We heard all the three appeals on 15 August 2017 and reserved judgment.

[2] The main appeal is appeal No W-02(W)- 1453-08/2016. In this appeal, the appellant/plaintiff complains that inter alia its claim for breach of employment contract as well as claim related to secret profits made by the employees ie the 1st and 2nd defendants ought to have been allowed.

[3] The 1st and 2nd defendants had filed appeal W-02(W)- 1802-09/2016 and No W-02(W)- 1796-09/2016 respectively complaining that the learned judge having dismissed the plaintiffs claim had ordered the defendants to pay the costs of RM100,000.00 to the plaintiff.

[4] In the instant case, it is not in dispute that the (i) defendants were dismissed from employment, for the misconduct related to breach of employment contract and claims related to secret profits; (ii) the defendants then proceeded to seek relief for unfair dismissal through the Industrial Court; (iii) before the hearing in the Industrial Court, the defendants withdrew their claim; (iv) the plaintiff had filed a notice of motion Encl 5(a) to admit the document related to the Industrial Court for the purpose of the appeal; (v) we allowed the notice of motion and directed the plaintiff to file a supplementary record consisting of the documents stated in Encl 5(a).

[5] In addition, it is also not in dispute that (i) the documents which the plaintiff had substantially relied on to establish its claim for breach of contract and the secret profits were recovered from the computer of the 1st defendant as was stated by PW3 in his witness statement; (ii) notwithstanding that the 1st defendant had filed a witness statement and was present in Court during the hearing to instruct solicitors to cross- examine the witnesses of the plaintiff; the 1st defendant himself did not enter in the witness box to give evidence; (iii) the documents retrieved from the 1st defendant was placed in bundle B and subsequently marked as exhibit, thereby establishing a strong prima facie case against the 1st defendant as it was not controverted by the 1st defendant himself.

[6] The learned trial judge has set out the facts and evidence in an articulate manner. On the first reading of the judgment it was quite obvious that the judgment suffered from grave error of law on the face of record as well as it was contradictory and in consequence warrants the judgment to be set aside in limine. [See Sidambaram Torosamy v. Lok Bee Yeong ]. Briefly there are three reasons for saying so. They are as follows:-

(i) The learned judge makes a finding that there was breach of contract but says the plaintiff is not entitled to damages as they have obtained a relief by dismissing the defendants for misconduct. This proposition in our view by the learned judge was not supported by any authorities. The proposition in our view is flawed. The act of dismissing the employee for misconduct and the employee seeking relief in the Industrial Court is a separate cause of action per se. It has nothing to do with the right to sue for breach of contract and claiming damages. That part of the judgment reads as follows:

"39. Accordingly, having regard to the analysis set out in the preceding paragraphs, I found that the joint property purchases amounted to a contravention of the Purchasing Policies, and consequently a breach of the defendants terms of employment with the plaintiff.

Remedy available to the plaintiff for breach of terms of employment

40. In my judgment, the plaintiff had already availed itself of its remedy for breach of the employment terms when it dismissed the defendants."

(ii) In the instant case, the 1st defendant did not give evidence and the documents tendered and marked as exhibits as well as the oral evidence prima facie incriminates him. However, the learned judge chose to ignore well established principles as well as cases inclusive of s 114(g) of the Evidence Act 1950 ( EA 1950

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