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1990 MarsdenLR 1339
INDUSTRIAL COURT, KUALA LUMPUR
KAMA MORRIS SDN. BHD. – Appellant
Versus
LEE CHWEE SAY – Respondent
[Case No. 1:4/4-46/88 (28 January 1988)]
Award
This is a dismissal case involving Kama Morris Sdn. Bhd. (the company) and Lee Chwee Say (the claimant). In the Statement of Case, the claimant has alleged (1) that there was no dismissal by virtue of the fact that the act of dismissing was made by a party not privy to the contract of employment and (2) that alternatively if there was a dismissal, it was made without just cause or excuse. In the Statement in Reply, the company has denied the allegations of the claimant and contended that he was dismissed for grave misconduct. The brief facts can be summarised herein. The company was and still is a private limited company operating a business as electrical and mechanical engineering contractors. It was formerly known as Syarikat R.E. Morris (Malaysia) Sdn. Bhd. and was incorporated on 27 December 1973. The claimant joined the company as an electrical supervisor in 1973 and was appointed Manager in 1979. At the time, Milton Tan C2, a Singaporean, was the holder of 95% shares in the company and the balance of 5% were held by the claimant and one Yap Kee Wan in equal shares. On 13 October 1984, Encik Kamaruddin CW1 came into the company by purchasing 60% of the shares from Milton Tan. On 20 March 1985, the name of the company was changed to Kama Morris Sdn. Bhd. and Encik Kamaruddin was appointed the Managing Director of the company. In any case, shortly thereafter, he brought in Encik Zaini Zainuddin who was immediately appointed Manager in the administration section. The claimant was the Manager having charge of operations in the company. By a letter dated 4 May 1987, the company through its solicitors issued a show cause letter to the claimant. The claimant replied through his solicitors vide a letter dated 5 May 1987. Subsequently, by a letter dated 15 May 1987, the company through its solicitors, terminated the services of the claimant.
At the outset, let me once again restate the general principles relevant to dismissal cases which are succinctly set out in Award No. 48/74: Lim Sim Tong v. Palm Beach Hotel Sdn. Bhd:
It is a basic principle of industrial law that the court wouldbe wrong to interfere with the bona fide exercise of powers which are given to the management by common law and by contracts of service or which are inherent in management. If there has been no abuse of discretion, no discrimination, no unfairness, no capricious or arbitrary action, if the management has acted in good faith and upon fair investigation, an arbitrator should not disturb the decision taken by the employer. However, as a court of equity and good conscience, it will interfere not only where there has been victimisation but also where it is of the opinion that upon the substantial merits of the case, the action taken by the management was perverse, baseless and unnecessarily harsh or was not just or fair or where there has been a violation of natural justice or where there has been unfair labour practice or other mala fide action on the part of management in the exercise of its power ... It is also settled that the power to order reinstatement is not limited to cases where the worker has been dismissed summarily on the express ground of misconduct. Even where the dismissal has been effected upon the proper notice and the real ground for the employer's decision is misconduct suggested or alleged against the workers, the court will inquire into a complaint that the decision has been harshly or unfairly made. The absolute right of an employer under the common law to hire and fire is, however, no longer available to him completely under the industrial law and the court will apply the same principle here as in cases where the employer has exercised his right to dismiss the worker without any notice on the ground of misconduct.
It has been said that at common law the employer would be entitled to dismiss the workman summarily where the conduct of the workman is inconsistent with the maintenance of the relationship created by the co
