The Industrial Court's failure to apply proper legal standards for dismissal leads to decisions lacking rational justification or fairness.

Faiza Tamby Chik J:

This is an application for orders of certiorari and mandamus in respect of Industrial Court Award JG Containers (M) Sdn Bhd v. Sunmungam Subramaniam [1998] 2 ILR 574 dated 8 June 1998. The facts of the case are as follows: The applicant commenced employment with the first respondent ("the company") in January 1974 as a leading hand with a salary of RM1 an hour. His last held position was quality control manager, with a monthly salary of RM3,250. In a letter dated 15 April 1995 the company made several allegations against the applicant (see p. 24 of the cause bundle). A reply to these allegations was sought from the applicant. The applicant replied by a letter dated 24 April 1995 (see p. 26 of the cause bundle). He denied the charges. In a letter dated 28 April 1995 the company preferred additional charges against the applicant. The charges were of a completely different nature. The applicant was charged with bribery. An explanation was sought from the applicant. In a letter dated 3 May 1995 the applicant denied the charges. He stated that the charges were malicious and baseless. In a letter dated 12 May 1995 the company preferred seven charges against the applicant (see p. 30 of the cause bundle). The first charge was that the applicant had used derogatory language on the company's expatriates, specifically the managing director of the company. The remaining six charges were bribery charges. Subsequent to a domestic inquiry held on 19 May 1995, the applicant was dismissed through a letter dated 29 June 1998 (see p. 33 of the cause bundle). The matter was then referred to the Industrial Court to be adjudicated upon. The court held that the applicant was guilty of only the first charge. The applicant was found not guilty of the other six charges. (see p. 141 of the cause bundle). Notwithstanding this, however, the Industrial Court dismissed the applicant's claim. Hence this application. The first charge reads as follows:

That you on the 8th day of April 1995, at about 5.00 p.m. at Restaurant Yee Kee (Shah Alam) Sdn. Bhd., Lot 1248, Bukit Kamuning, Batu 8, Jalan Kampung Jawa, Klang, Selangor while having organized official lunch for the incoming work site committe members with our Company's Management staff, you being a Management staff, used abusive and derogatory language on the expatriates and particularly the Managing Director to wit by calling him "PONDAI MAVAN", "CHIUNNI PAYAL", and thereby you have committed an act of major misconduct.

The function of the Industrial Court in dismissal cases is stated by Mohd. Azmi, FCJ in the case of Milan Auto Sdn. Bhd. v. Wong Seh Yen [1995] 4 CLJ 449 at pp. 454-455 of the report:

As pointed out by this court recently in Wong Yuen Hock v. Hong Leong Assurance Sdn. Bhd. [1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases on a reference under s. 20 is twofold, first, to determine whether the misconduct complained of by the employer has been established, and secondly, whether the proven misconduct constitutes just cause or excuse for the dismissal.

Harun Hashim, president of the Industrial Court and judge (as he then was) in the case of Chartered Bank, Penang v. National Union of Bank Employees [1983] 2 ILR 349 held at p. 351:

It is duty of the Court to first establish whether the employer has proved the allegation of misconduct. The Court in this case did so find. Where misconduct has been proved, the Court has next consider whether the punishment imposed by the employer is justified.

In the case of R. Rama Chandran v. The Industrial Court of Malaysia & Anor.[1997]1CLJ147 Eusoff Chin, CJ at p. 176:

What are the functions of the Industrial Court? We need only refer to three authorities.

In Goon Kwee Phoy