AWARD

The issue in this dispute is the termination by the company of the claimant's services as a helicopter pilot with effect from 5 September 1998, which he claims was a dismissal without just cause and excuse in violation of the principles of natural justice and/or unlawful.

The episode that led to the termination was not disputed by the company. On 20 April 1998 whilst the claimant was flying the helicopter with Captain Lau Mon Tech from an off shore oilrig in Kerteh to the MHS base in Kota Bahru, he had experienced a heart problem. He was initially attended by the doctor on duty at the base, and immediately referred to the Hospital University Sains Malaysia in Kubang Kerian where he was admitted into the emergency ward and diagnosed as suffering from a heart attack. From 23 April 1998 he was admitted into the Kota Bahru medical centre where he underwent various tests and evaluation of his heart condition up to 27 April 1998, after which the claimant was on medical leave up to 31 May 1998.

When he was diagnosed with "acute inferior and posterior myocardial infarction" by the KB Medical Centre (COA15), the company under their regulations sent the claimant for a second medical examination and obtained a report (COA17) from Dr. Dalbir S. Sagoo who is a designated Senior Aviation Medical Examiner & General Medical Practitioner, recognised by the Civil Aviation Department of Malaysia - the regulation body which controls civil aviation and licensing of aircraft pilots generally. This report to the company states:

He is currently on medical leave and no flying duties for six to nine months with effect from April 1998 and a reassessment of his flying status after this period ... .

The company's reasons, indeed the only reason, is centred around Dr. Dalbin's report, and justified their termination by their averment in the pleadings to the effect that in accordance to the claimant's terms and conditions of service (exhibited CO1) coupled with the "serious medical condition which was likely to be permanent".

Consequently, in the company's written submission and arguments of 5 June 2001, in relation to the sole dispute whether the claimant's dismissal was with or without just cause and excuse, the company is relying on the doctrine of frustration of contract and/or force majeure , when the termination letter (COA18) qualified the termination notice by a condition subsequent:

The Company has received a letter form Mahkota Medical Centre (Dr. Sagoo) ... advising against flying duties for six (6) to nine (9) months ... .

Under the General Terms and Conditions of Service, it is with deep regret that we have to give you three (3) months notice to terminate your service with the Company with effect from 05 June 1998.

In the event that during any period of the three (3) months notice you regain your licence, the notice shall be withdrawn and your period of absence from duty shall be treated as medical leave or as unpaid leave if you have exhausted your medical leave eligibility for the calender year.

(emphasis supplied)

Application Of Goon Kwee Phoy v. J & P Coats (M) Bhd [1981] 2 MLJ 129

The test in Goon Kwee Phoy submitted by both parties about there being no material difference between a termination of a contract of employment by notice and a unilateral dismissal of a summary nature - that the effect is the same and the result must remain the same - the company is really not making an issue of it, as conceded by them.

The court need to only consider in so far as the termination notice is couched with a condition subsequent, what, if any, is the effect in law on such a qualification? Why was it so stated?

The court will, however, take the point that Goon Kwee Phoy is not only an authority for the proposition that the court is duty bound to enquire into the substantive - whether the dismissal was with or without just cause - but also as enunciating the principle prohibiting the court from looking into other reasons not advanced or provided by the employe