Facts of the Case

Claimant commenced employment with the Respondent initially as Marketing Inspector on temporary basis effective from 2.4.1986 on a payment of advance commission and allowance totally RM600.00 per month. Vide the Respondent's letter dated 27.10.1987, he was appointed as Marketing Inspector with the salary of RM400.00 and other allowance of RM200.00 per month effective from 5.10.1987 and was subsequently confirmed in his service. Effective from 1.11.1996, Claimant was appointed as Officer and at the time of his dismissal on 1.11.1997, his last position was Manager of Business Development with the last drawn salary which the Claimant pleaded to be RM3,015.00 per month while the Respondent said it was RM2,515.00.

Sometime between May to June 1997, the Respondent came to know from an article appearing in Tamil Nesan on 15.5.1997 which carried a photograph of the Claimant referring him as the Managing Director of a trading company known as Mata Trade which was dealing with teak planting scheme for investment. The Respondent also discovered that the Claimant had utilised its telephone number in connection with the business carried out by Mata Trade and the said telephone number was also published in the aforesaid article. A show cause letter dated 19.6.1997 was issued to the Claimant for these allegations of misconduct. The Claimant gave his written explanationvide his letter dated 20.6.1997. Vide its second show cause letter dated 25.7.1997, the Respondent required the Claimant to furnish an explanation on his usage of the Respondent's facsimile facility for purpose of the business of Mata Trade. Claimant responded by his letter dated 30.7.1997. The Respondent was not satisfied with the Claimant's explanations to both notices to show cause and issued a notice of inquiry dated 17.9.1997 instructing the Claimant to attend a domestic inquiry (D.I.) on 29.9.1997 on 3 charges namely 1. Breaching Claimant's contract of employment and Clause 5(i)(c) of the Guidelines on the Code of Conduct for the General Insurance Industry which requires employees to discuss and obtain written approval for any part-time employment or other business activities outside the general insurance company's working hours; 2. Misusing the Respondent's direct telephone line provided to the Claimant by conducting business in connection with the trading company, Mata Trade; and 3. Misusing the Respondent's fax facility to fax and receive letters pertaining to the business of the trading company, Mata Trade. The D.I. was conducted as scheduled and the Claimant had duly attended. At the end of the D.I. Claimant was found guilty of all the 3 charges and was consequently dismissed by the Respondent vide its letter of dismissal dated 29.10.1997 effective from 1.11.2007.

Claimant contended that his termination was motivated by bad faith and/or without just cause or excuse.

The Issues

Since dismissal is not in dispute, the sole issue before this Court is whether the dismissal of the Claimant was with or without just cause or excuse.

The Law

In the often quoted case of Goon Kwee Phoy v. J & P Coats (M) Bhd., the Federal Court has formulated the role or duty of the Industrial Court in determining whether the dismissal of an employee was with or without just cause or excuse in the following words:-

"Where representations are made and are referred to the Industrial Court for inquiry, it is the duty of that Court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to inquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper inquiry of the court is the reason advanced by it and that court or the High Court cannot go into anot