Raus Sharif J:

Application

This is an application by the applicant for an order of certiorari to quash the Industrial Court Award No 530 of 2001 handed down on 14 July 2001. In this case the applicant' s claim for constructive dismissal was rejected by the Industrial Court.

Facts

The relevant facts leading to this application are these. The applicant joined the services of the respondent as a cadet pilot on 1 March 1982. In 1995, he was promoted with the rank of captain for Boeing B 737 - 300 / 400 1500 aircraft.

On 9 November 1995, the applicant operated a flight MH 1436 from Kuala Lumpur to Langkawi without a load sheet. A load sheet is a flight document which contains flight data or information. It is a mandatory requirement under international and domestic law, that every flight must have a load sheet on board while in flight.

Resulting from the incident, the respondent by a letter dated 16 November 1995, suspended the applicant from his flying duties and was asked to attend a non-technical inquiry on 20 November 1995. In response to the notice, the applicant on 19 November 1995 wrote to the Chairman of the Board of Inquiry stating as follows:

Re: MH 436 KUL/LGK dated 9.11.1995 Departure without Load sheet

With reference to the above, which I fully accept that I am totally in the wrong. I have been fully counseled by Captain Yusof Nasir and I promise never to repeat the same big mistake. I repent of my big mistake and will ensure that legal aspects of flight operation and management will not be overlooked.

At the non-technical inquiry held on 20 November 1995, the applicant again admitted that he operated the MH 1436 on 9 November 1995 without a load sheet. The matter was then reported by the respondent to the Department of Civil Aviation (DCA).

The DCA by a letter dated 13 December 1995, requested the applicant to give a written explanation. The applicant gave his explanation vide his letter dated 15 December 1995, once again admitting to flying without a load sheet and apologizing for the mistake.

The DCA by a letter dated 22 December 1995, which was copied to the Director of Flight Operation of the respondent, suspended the applicant' s air transport pilot license for a period of 30 days with immediate effect. Following his suspension the respondent decided to reduce the applicant' s salary for one month and downgraded him to the rank of First Officer.

On 8 February 1996, the respondent wrote to the applicant stating that as the applicant had not met the required standards and requirements to be reinstated as Captain following the suspension of his license, his reassignment as First Officer would be extended for an indefinite duration. The applicant was also informed that his reinstatement to the position as Captain would be kept in abeyance until he showed a positive improvement in his general attitude and performance towards flying.

On 15 February 1996 the respondent through its Human Resources Manager wrote to the applicant informing him that he was to continue to receive the reduced basic salary and aircraft type allowance as stated in its letter dated 8 February 1996. In the meantime, the applicant despite being downgraded to First Officer, continued to wear the four (4) bar epaulettes depicting him as Captain. The respondent on 19 March 1996, wrote to the appellant directing the appellant to use three (3) bar epaulettes denoting the rank of First Officer but the applicant refused to do so.

Subsequently, the respondent by a letter dated 3 April 1997 directed the applicant to attend a Review Board Meeting on 4 April 1997. During the meeting, the board, after perusing witnesses report and hearing the applicant, concluded that the recent events and the applicant' s statement and outburst coupled with his indifferent attitude shown, were unanimous that the applicant was not yet ready to regain his command status and the applicant was so informed. The applicant told the board that he was not accepting the decis