On 11th November 1986 the four Claimants signed similarly worded letters of resignation together with three other employees. The latter three have not participated in this claim for reinstatement. In respect of the four Claimants, the Union contended that they were -

"dismissed from employment on 12th November 1986 without just cause or excuse and by obtaining signature of the employees concerned through intimidation and duress in prepared letters with selected words to reflect voluntary resignation."

The letter of resignation reads as follows:

Date: November 11, 1986

The Division Manager

Vijay Rajadurai

Harpers Trading (M) Sdn. Bhd.,

Petaling Jaya.

Dear sir,

I . . . . . . . . . . I/C Number . . . . . . . . . . . address . . . . . . . . . . . . . . . . . . . . . . . . . . employed as . . . . . . . . . . . . Butterworth Warehouse at Heap Seong Chan Godown A/B. I admit that I have jointly with other staff stolen from Harpers Trading during my employment with the Company. I am willing to return the cash amount . . . . . . . . . I received in payment for stolen stock. I wish to tender my resignation from 11th November 1986.

Yours faithfully,

( Sgd.)

Koh Ah Heng ....sgd.... (witness)

Lim Teong Seng .... sgd.... (witness)

Moey Hock Seng .... sgd.... (witness)

2.Looking at the resignations of the four Claimants, which they admitted having signed, the natural presumption would be that they resigned because they admitted having stolen goods from their employer - an admission of a criminal offence. The Court therefore agreed with the preliminary argument by the Company that in the circumstances "the burden of proof to establish the allegations (of the resignations having been obtained by intimidation and duress) was on the Union.

4.However, it must be emphasised that even in cases where it is proven technically that a dismissal exists, the substantive issue of whether that dismissal was with just cause or excuse must still be adjudicated. The burden of proof in the event shifts to the employer.

5.The brief facts of the case as believed by the Court are these. The Company having ascertained that is own employees were sneaking goods out of its godown in Butterworth to the tune of about $80,000.00 over a period of less than a year, sent its Divisional Manager, Encik Vijay Rajadurai (Vijay) from Petaling Jaya to investigate.

6.Vijay arrived in Butterworth on 10th November 1986. Through his investigation he established that goods were removed from the godown dishonestly by a gang of the Company's employees. The modus operandi would appear to be this:

a) Credit notes were issued to dealers for purported "bad" goods which were never returned or destroyed, but resold.

b) Overloading of outgoing consignments of goods onto lorries and vans from the godown.

c) Using the same consignment documents for double deliveries.

7.The two main culprits were one named Mohamed Nor, the godown clerk, and Zubaidah his assistant. They confessed, signed, a similar letter as the four Claimants did, and agreed to refund some $49,000.00 in cash, which they did subsequently, and left the Company.

8.Vijay testified that he interviewed all the seven, one by one, on 10th November 1986. He first interviewed Mohamed N