Nik Hashim J:

The applicant applies for an order of certiorariunder O. 53 of the Rules of the High Court 1980 to quash the Industrial Court Award No. 609 of 1996 which held that the respondents were workmen and were dismissed by the applicant without just cause or excuse.

The respondents joined the service of the applicant in the capacity of timber lorry drivers and were paid according to the number of trips and the tonnage of the load carried. It is not disputed that the respondents did not enjoy fixed incomes. The respondents contends that they received fixed allowances of RM50 per month, irrespective of whether they worked or not, but the applicant contends such allowances were only payable if the respondents worked for one complete month.

The respondents did not have written contracts and one of the major areas of dispute was whether the respondents were engaged under contract of service (as employees) or under contract for services (as independent contractors).

The facts which were not in dispute are as follows:

(1) no contributions were made to EPF or SOCSO in respect of the compensation received by the respondents;

(2) the respondents were not entitled to annual leave or paid sick leave;

(3) the applicant could take disciplinary action against the respondents (including the termination of their contracts) but no evidence was led of any disciplinary action having been taken against the respondents prior to the dispute;

(4) the applicant provided the lorries as well as fuel, and was responsible for the repairs of the said lorries:

(5) the applicant took out personal accident insurance for the respondents; and

(6) the respondents were never union members and were not governed by the relevant collective agreement between the Timber Employees Union and the applicant.

In 1992, on discovering that no contributions had been made on their behalf by the applicant to the EPF and SOCSO, the respondents lodged a report with the Labour Department on the matter. The Labour Department advised the parties to formalise the terms and conditions of the appointment of the respondents which hitherto had not been reduced into writing. The applicant therefore requested the respondents to sign written contracts. The respondents refused to sign the written contracts and the applicant accordingly terminated their services.

The Minister of Human Resources declined to refer the matter to the Industrial Court and hence the respondents applied to the High Court for an order of mandamus to compel the Minister to refer the matter to the Industrial Court.

The Industrial Court adopted the view that the respondents were 'workmen' within the meaning of the Industrial Relations Act 1967 and further held that the dismissal of the respondents were without just cause or excuse, and handed down its decision on 31 December 1996 videAward No. 609 of 1996. The respondents were awarded compensation ie, one month's salary for every year of completed service in lieu of reinstatement and full backwages for three years and four months from the date of dismissal to the last date of hearing.

Dissatisfied with the decision of the Industrial Court, the applicant has sought for an order of certiorari to quash the whole of the aforesaid decision on four arounds:

(i) the Industrial Court committed a breach of natural justice when it refused to allow the request by the former counsel for the applicant for an adjournment of the hearing on 13 April 1996.

Such refusal resulted in the applicant being denied the opportunity to cross-examine the respondents;

(ii) the Industrial Court was wrong in holding that the respondents were 'workmen' within the meaning of the Industrial Relations Act 1967 (the Act) ;

(iii) the Industrial Court failed to provide any reasons for its finding that the dismissal of the respondents was without just cause or excuse;

(iv) the Industrial Court failed to limit the award of compensation.

It is significant to note at the outset