An Industrial Court must determine the justness of dismissal, and its decisions on compensation can be subject to judicial review regarding legal adherence.

Gopal Sri Ram JCA:

This appeal raises two questions. Neither of them gives rise to any difficulty. They are matters upon which our courts have made several pronouncements. The first question is whether the Industrial Court had exceeded its jurisdiction in holding that the respondent had been dismissed without just cause or excuse. The second is whether the compensation awarded by the Industrial Court to the respondent is excessive. Both were tested in certiorari proceedings before the High Court and were resolved against the appellant. The factual background from which these questions arise may be shortly stated.

The respondent was at all material times the appellant's general manager in Sabah. He commenced his employment on 1 November 1984. His salary was RM8,000 per month. On 15 May 1986, the appellant served him with a letter setting out three charges of misconduct. The first charge related to three instances where the respondent had allegedly overstepped the bounds of his authority. The second and third charges alleged that the respondent had abused his authority. The respondent gave a written answer to the charges formulated against him. But the appellant's board rejected his explanation. It terminated his services. The respondent challenged the termination. He made representations under s. 20(1) of the Industrial Relations Act 1967. The Minister referred those representations to the Industrial Court. He made the reference on 19 January 1988. Thereafter, the Industrial Court proceeded with the hearing of the case. It found for the respondent. It held that he had been dismissed without just cause or excuse. But it refused to reinstate him. It awarded him monetary compensation instead.

The Industrial Court's award was attacked in certiorari proceedings before the High Court. The case was thoroughly argued. All points that could possibly be taken were taken. But the judge was not impressed. He declined certiorari. The appellant has appealed against his refusal.

Before us, counsel for the appellant conceded that the second and third charges were not serious enough to warrant dismissal. He said that he was not pursuing them. In respect of the first charge, he accepted that there was strong evidence of condonation by the appellant's board of what the respondent had done.

So it comes to this. The charges of misconduct were all groundless. The appellant had acted without just cause or excuse when it terminated the respondent's contract of employment. In industrial law, it does not matter what you call it - termination or dismissal - it is all the same. At the end of the day it is for the Industrial Court to determine whether there has been a dismissal and whether that dismissal was with just cause or excuse. That is what was held by the Federal Court in Goon Kwee Phoy v. J & P Coats (M) Bhd 1981 MarsdenLR 117 . There is a passage in the judgment of Raja Azlan Shah CJ (Malaya) (as he then was) in that case which has been applied in several subsequent cases. It is at p. 136 of the report. And it reads as follows:

We do not see any material difference between a termination of the contract of employment by due notice and a unilateral dismissal of a summary nature. The effect is the same and the result must be the same. Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse.

The proper enquiry of the court is the reason advanced by it and that court or the High Court cannot go into another reason not relied on by the employer or find one fo