Mr. Jan A. Oudendijk, the General Manager (GM) of Kuala Lumpur Hilton ("the Company") lodged compliant on 27 August 1988 that he saw Encik Mohd Hamzah Jumiran, a houseman, sitting on the counter of the Aviary Lounge toilet reading a newspaper.

Arising out of this compliant the Company framed four charges against the Claimant (Ex U.1.):

1. Reading a newspaper in your work area on 27 August 1988 atabout 9.45 a.m.

2. As an employee who is entrusted to clean toilets you haveabused the Company's trust in you.

3. Poor work attitude.

4. In doing so you have violated the rules and regulations ofthe Hotel.

The Company wrote to the Claimant on 27 August 1988 (Ex. U.1.) that it considered the charges a serious offence and misconduct and notified him that a domestic inquiry will be held on 1 September 1988, five days later. This institution of the domestic inquiry was obviously in compliance with s.14(1) of the Employment Act 1955 which stipulates that an employee may be dismissed without notice on the ground of misconduct after a due inquiry.

A due inquiry under s.14(1) ought to comply with the time honoured rules of natural justice. It ought to be a bona fide inquiry. It must be conducted in a fair and responsible manner. This Court has to take a look at the practical effect if any of any failure to observe a proper procedure in the Inquiry in order to decide whether the dismissal was procedurally fair as distinguished from the reason for the dismissal.

At this point it will be appropriate to refer to the Judgment of the House of Lords in the case of Polkey v. A.E. Dayton Services [1987] IRLR 481 where the learned editor of IRLR, (Industrial Relations Law Reports) states:

Goodbye to the British Labour Pump principle - and itscorrosive effect upon the right not be unfairly dismissed. In the most important unfair dismissal decision of the 1980's Polkey v. Dayton Services rules that in determining whether dismissal is fair or unfair, it is what the employer did that is to be judged, not what he might have done.

Although Polkey's case dealt with failure to consult the employee (Polkey) or warn him of impending redundancy, the Judgment is relevant in respect of procedural fairness before dismissing an employee.

At the Inquiry, the G.M. who lodged the complaint was not present. He was present in Kuala Lumpur Hilton but failed to come forward and state that he saw the Claimant reading a newspaper. He requested that a short note from him of what he saw on entering the toilet be used at the Inquiry.

The Claimant who was represented at the Inquiry by Encik Kamaruddin Othman and Encik S.Munion of the Union, strongly objected to this unfair procedure at the Inquiry. The Union's representative rightly contended that whoever makes a charge or complaint must attend the Inquiry and justify the charge. (Ex.Co-3).

S.102 of the Evidence Act 1950 states that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. The G.M. by absenting himself without reasonable excuse, from the Inquiry, failed to discharge the burden of proof that lay on him to establish that the Claimant was in fact reading a newspaper. On the failure of the G.M. to be present to give evidence and be cross-examined as to the truth of his complaint the Union representative at the Inquiry, said:

This is no natural justice.

On the use and reliance by the Board of Inquiry of a short note from the G.M. the Union representative said:

This is only a piece of paper.It cannot be used.

The Union representative felt strongly that the failure of the G.M. to be present would end in a miscarriage of justice and threatened to walk out of the Inquiry unless the G.M. was called to testify. The G.M. was not called however, and the Union representative walked out. It is clear from the evidence that the G.M. adopted an irresponsible attitude by wilfully refusing to attend the inquiry thereby depriving the Claimant or his Union representatives of hearing him and of c

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