Mohd. Jemuri Serjan SCJ:

Tang Seng Khow joined Harpers Trading (M) Sdn. Bhd., the appellant company, as a grade 3 clerk on or about 5 January 1956. He was promoted as grade 1 clerk with effect from 15 October 1976 and at the time of his dismissal he was earning RM1,170 per month with RM40 per month as cost of living allowance thus making a total of all-in salary of RM1,210 per month. He had been performing his duties of a payroll clerk and was in charge of preparation and payment of non-executive staff salaries and related matters, administration of car loans and the preparation of Kuala Lumpur bank reconciliation and issuing of cheques.

The company by a letter dated 17 December 1985, addressed to Tang Seng Khow preferred six charges against him and suspended him from duty on half pay from 17 to 26 December 1985. The suspension was subsequently extended to 31 December 1985. By the same letter Tang Seng Khow was required to attend a domestic inquiry on 23 December 1985. The six charges are as follows:

Charge 1: That you failed to submit the SOCSO Returns (Borang8A/B) as and when due in respect of our employees in the following branches of the company:

Branches Period Involved

(a) Kuantan Since May 1984

(b) Kota Bharu Since May 1985

(c) Johore Bharu Since May 1983

(d) Penang Since September 1982

(e) Malacca Since November 1978

(f) Ipoh Since November 1979

By reasons of your said acts and/or omission on your part in the performance of your duties and responsibilities, you have exposed the company for prosecution.

Charge 2: That you failed to pay staff salaries in respect of outstation branches for the month of November 1985 by cheque in the normal way on time and caused undue delay by postponing to 2 December instead of 26 November 1985, whereby you exposed the company to embarrassment and adverse criticism.

Charge 3: That you failed to exercise due care and attention in the payment of overtime pay to Mr. Nicholas s/o Anthony Samy, though you prepared the source documents, resulting in excess payments from July to November 1985 and loss to the company. You failed to check the source documents and computer print-out before effecting payments and were thus negligent in your duty.

Charge 4: That you as a clerk in charge of payroll have paid out to yourself overtime pay in excess of what was due to you in the month of November 1985 when you knew or ought to have known that the payment you received was much in excess.

Charge 5: That you failed to submit to the Income Tax Department our employees' tax deductions for October and November 1985 on time and unduly delayed them whereby you exposed the company to penalty and embarrassment.

Charge 6: That you failed to remit to National Union of Commercial Workers members' subscriptions deducted from their monthly salary during October and November 1985 on time in breach of the standing instructions and accepted past practice causing embarrassment to the company.

The domestic inquiry which was conducted on 23 December 1985 found Tang Seng Khow guilty on all except the 3rd charge and he was accordingly dismissed with effect from 31 December 1985. The respondent union took issue on his behalf in the matter of the dismissal and thereafter a trade dispute ensued which was referred to the Director-General for Industrial Relations under s. 18 of the Industrial Relations Act 1967. As there was no likelihood of the dispute being settled, the Minister was notified accordingly who then referred the dispute to the Industrial Court under s. 20(2) of the Act on or about 19 August 1986.

The Industrial Court commenced proceedings to hear the dispute on 16 March 1987 and after several intermittent adjournments, completed the proceedings on 24 February 1988. Both the company and the union were represented by Counsel at the hearing. The Industrial Court found that none of the charges had been proved against Tang Seng Khow and therefore held that the dismissal was without just cause or excuse. As it w