KC Vohrah J:

When a workman (irrespective of whether he is a member of a trade union of workmen or otherwise) considers that he has been dismissed without just cause or excuse by his employer he may make representations in writing to the Director General of Industrial Relations to be re-instated in his former employment. This is provided under s. 20(1) of the Industrial Relations Act 1967 (the Act).

In the instant case the applicant, Booi Kim Lee, who was Chief Security Officer, Golden Plus Granite Sdn Bhd (the company), was dismissed by the company, the said respondent, and he made representation in writing to the Director General within the time stipulated under s. 20(1A).

As required under s. 20(2), the Director General conducted conciliation proceeding. There being no likelihood of the representations being settled he notified the Minister accordingly under the same provision of the Act.

Under s. 20(3), upon "receiving the notification ..., the Minister may, if he thinks fit, refer the representations "to the Industrial Court for an award." The word "award" under s. 2 means "an award made by the Industrial Court in respect of any trade dispute or matter referred to it or any decision or order made by it under the Act."

The Minister declined to refer the representations to the Industrial Court for an award. A letter dated 28 October 1996 to that effect was sent to Booi.

In applying for an order of certiorari to quash the decision of the Minister and for an order of mandamus to require the Menteri to refer the matter of Booi's dismissal to the Industrial Court Booi complains that the Minister wrongly exercised his discretion. The complainant gives 4 grounds:

(a) Parliament conferred discretion to the Minister with the intention that it should be used to promote the policy and objects of the Industrial Relations Act 1967, but the Minister had, by reason of having misconstrued the Act, or for some other reason, exercised his discretion in a manner which runs contrary to the policy and objects of the Act. The Minister had thus exceeded his jurisdiction and had acted ultra vires.

(b) In reaching his decision that was unfavourable to the applicant the Minister had not directed himself properly in law as determined by the Federal Court in Goon Kwee Phoy v. J.P. Coats (M) Sdn. Bhd. [1981] 2 MLJ 129, and had in consequence excluded from his consideration matters which he ought to have considered and had taken into consideration matters that ought not to have been considered. The Minister had therefore not asked himself the right questions.

(c) The Minister had breached the principle of procedural fairness in not giving any reasons for his decision to refer the matter to the Industrial Court.

(d) The Minister had acted unreasonably in exercising his discretion not to refer the applicant's representations to the Industrial Court for an award.

Judicial Review Is Not An Appeal

Before I deal with the issue whether the discretion was rightly exercised it is necessary to be reminded of a few principles relating to the role of the High Court in dealing with matters relating to the exercise of discretion by a public body. One of the foremost principles is this - the court does not act as an appeal court in such matters. This is clear from the decision of the Supreme Court in Minister of Labour, Malaysia v. Lie Seng Fatt [1990] 2 MLJ 9 at 11 relying on Lord Greene's observation in Associated Provisional Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223, that the power of the court to interfere in each case is "not as an appellate authority to override a decision of the local authority, but as a judicial authority to see whether the local authority have contravened the law ..." In other words the High Court should not act as a court hearing appeals from subordinate courts.

In Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155 at 1174 Lord Brightman said:

Judicial review, as the words imply, is not