AWARD

By the notice of application filed on 5.2.2007, counsel for the Company applied to amend the Company's Statement in Reply, The proposed Amended Statement in Reply is annexed to the affidavit in support of the notice of application.

The amendments are in respect of paragraphs 6(j), 13, 14, 15, 16 and 17 as seen in the proposed Amended Statement in Reply.

In the affidavits filed by the Company and also it has been submitted by the counsel for the Company that amendments sought for in paragraphs 6(j), 14 and 15 were to correct the typographical errors and paragraphs 13, 16 and 17 were to state the chronology of the case.

Counsel for the Claimant objected to the application for the amendment for two reasons. The first reason was that in the Statement in Reply there was no necessity to plead evidence and points of law. The second reason was that in the proposed amendment to paragraphs 13, 16 and 17 no details were pleaded as such they were frivolous and vexatious.

In the Industrial Rules 1967 it has been provided in Rule 10 (3) that:

"(3) Such Statement in Reply shall be confined to the matters raised in the Statement of Case and to any issues which are included in the case referred to the Court by the Minister or in the matter required to be determined by the Court under the provision of the Act and which may have been omitted from the Statement of Case and shall contain:

(i) a statement of all relevant facts and arguments;"

The Court is also guided by what has been stated in Halsbury's Law of Malaysia , Volume 1 2002 Reissue where it states in paragraph 10.3.140 at page 266 as follows:

"Pleading material facts. All facts which must be proved in order to establish the ground of claim or defence are material. In any pleading subsequent to a statement of claim a party must specifically plead any matter which he alleges makes any claim or defence of his opponent not maintainable, or which, if not specifically pleaded, might take his opponent by surprise, or which raises issue of facts not arising out of the preceding pleading. A fact which was not material in the initial stages of a case may become material at a later stage.

Certain material allegations are required to be expressly pleaded. Thus the effect of any document or the purport of any conversation referred to in a pleading must be briefly stated..."

Also the Court has taken note of paragraph 10.3-142 at page 267 where it states:

"Pleading facts, not evidence. The general rule is that a pleading must contain only a statement of the material facts on which the party pleading relies, but not the evidence by which those facts are to be proved..."

In the proposed Amended Statement in Reply the Company intended to include a new paragraph as paragraph 13 and the paragraph 13 in the Statement in Reply be renumbered as paragraph 14. In the proposed paragraph 13, Company pleaded that after having found that Claimant failed to give commitment to his work the Company had verbally warned, advised and counselled the Claimant regarding his work performance. As to the proposed paragraph 16 the gist of what the Company intended to plead was that after the reminder, investigation and assessment been carried out by the Company then the Company decided to terminate the Claimant's employment. In the proposed paragraph 17, Company intended to plead the reasons as to why no show cause letter was issued and no domestic inquiry was held.

After going over paragraphs 13, 16 and 17 as in the proposed Amended Statement in Reply, the Court is of the opinion that they are material facts which have to be pleaded in order for the Company to answer the Claimant's allegation in paragraph 16 of the Statement of Case where the Claimant contended that his dismissal was without just cause and excuse and/or in breach of the principles of natural justice and/or an unfair labour practice and/or unlawful and/or a colourable exercise of the Company and/or an act of mala fide by the Company's management.

As mentioned earlier