Vincent Ng Kim Khoay J:

The first respondent was an employee of the applicant. It was alleged by the applicant that since 1988 the first respondent was frequently absenting from work without leave. The first respondent was dismissed after the applicant had duly complied with the caution system incorporated into the collective agreement (exhibit MRH 6 of Enclosure 1) the common ground of both parties being that no domestic inquiry was held before such dismissal. The first respondent then claimed unfair dismissal and the matter was referred to the Industrial Court under s. 20(3) of the Industrial Relations Act 1967 ("the Act") .

The applicant's main contention is that the Industrial Court had embarked on a mission to interpret the Collective Agreement (C.A.) and General Conditions (GC) governing the employment of the 1st respondent by holding that the two conditions - at page 13 of the CA under caption 'Union Representation at Enquiries' and at page 21 of the GC under caption 'Discipline', paragraph 2, in section XXI - made it mandatory for the applicants to hold a domestic enquiry.

There was no express conditions in the CA or GC requiring the applicants to hold a domestic enquiry. However, the condition under Union Representation at Enquiries states as follows:

Not more than two union officials shall be present at a disciplinary enquiry on any employee who is a union member and is covered by this agreement.

And the condition in GC under Discipline states:

2. Not more than two (2) union officials shall be invited to sit as observers at a Disciplinary Enquiry affecting an employee.

The part of the judgment of the Chairman of the Industrial Court which learned Counsel Mr. Anand Ponnudurai sought to impugn was expressed thus:

It does appear that where dismissal is contem- plated a disciplinary inquiry must be held. Both the GC and the CA provide for a Disciplinary Inquiry at which two union officials shall sit as observers.

It is apparent therefore that the claimant was in fact entitled to or should have been accorded a hearing at an inquiry irrespective of whether it is called a due inquiry under the Employment Act 1955 or a Disciplinary Inquiry under the CA or GC.

And the Chairman went on further to add:

No workman however gross his misconduct should be condemned to a dismissal without being heard. In this case there has been a breach of the rules of natural justice, a breach of the GC and a breach of the CA, both providing for union representation at inquiries.

In the circumstances the dismissal of the claimant in breach of holding a disciplinary inquiry was an unfair labour practice.

The contention of the applicant is that the Industrial Court had made an error in law affecting an excess of its jurisdiction in a matter referred to it under s. 20(3) of the Act , when it proceeded to interpret the CA and GC as imposing a mandatory requirement that before an employee is dismissed a domestic enquiry must be held, as both the GC and CA do not provide for such domestic enquiry ante dismissal.

According to Mr. Anand, such interpretation of CA and GC could only be made if there was an application under s. 33 of the Act , but there was no such application and as such, the Industrial Court had no jurisdiction to make an interpretation of the CA or the GC; at the very most the said conditions in CA and GC should be taken to mean that if there was to be a domestic enquiry, then two union officials ought to be present.

The function of the High Court is not to sit as a Court of Appeal to review findings of the inferior tribunals, its only function is to consider whether the inferior tribunal has performed its duties according to law, rather than to consider the merits of the case. See Hotel Equatorial (M) Sdn. Bhd. v. National Union of Hotel Bar and Restaurant Workers & Anor. [1984] 1 MLJ 363 @ 371 . See also South-East Asia Fire Bricks Sdn. Bhd v. Non-Metallic Mineral Products Manufacturers Employees Union & Ors. [198