AWARD

Franklin Goonting:

[1] This is a reference pursuant to s. 20(3) of the Industrial Relations Act 1967 requiring the court to hear and determine the claimant's complaint concerning his dismissal by the respondent on 24 August 2001.

Q : What remedy are you seeking from the court?

A : Compensation.

Q : Apart from compensation, are you seeking only compensation?

A : Yes.

[3] Clearly, the claimant did not want his job back. In consequence the court ceases to have jurisdiction over the matter and cannot grant compensation in lieu of reinstatement. This is the legal position and the authority for it is Holiday Inn Kuching, Sarawak v. Elizabeth Lee Chai Siok , a case which is factually indistinguishable from the present case. I quote the words of Mr. Justice Haidar Mohd Noor J. (as then was):

.... As stated by me earlier the respondent in her representations initially wanted reinstatement which is in accordance with s. 20(1) of IRA but subsequently in the hearing before the Industrial court she changed her stand and instead asked for damages in lieu of reinstatement. In such a situation can the Industrial court consider this aspect of her claim? 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 resource 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. According to the case of Dr. A. Dutt:

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

In the case here the issue in representations for reinstatement no longer arises as the respondent clearly abandoned reinstatement in the course of the hearing before the Industrial court. According to Chang Min Tat FJ in Dr. A. Dutt's case at p. 304:

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

(Emphasis added).

[4] In other words, for compensation for reinstatement to arise:

(i) the workman must "want his job back"; and

(ii) although the workman wants his job back, the Industrial court would not order reinstatement.

[5] The claimant's counsel drew the court's attention to the later case of The Borneo Post Sdn. Bhd. v. Margeret Wong, [2001] 8 CLJ 758 where the Industrial court had ruled that it had jurisdiction although in her statement of case the claimant had omitted to pray for reinstatement. The employer's application to the High court for certiorari was dismissed by Mr. Justice Denis Ong J (as he then was) who held that on a fair reading of the claimant's statement of case, it was correct to say that she would have liked to be reinstated and would have specifically prayed for it, but in view of her past experience i.e the victimization and humiliation she had suffered at the hands of the employer, reinstatement would be inappropriate or expedient.

[6] With due respect to the claimant's counsel, the facts in the Margaret Wong case and the factors that called for consideration there are at variance from those in the case at hand. Here, the claimant's statement that he wants only compensation is absolute and unqualified. His answers in re-examination could not be any clearer; he does not want reinstatement. In these circumstances the court does not have the jurisdiction to adjudicate the claimant's claim for compensation. His claim f