The court upheld the doctrine of frustration, ruling that the applicant's detention justified termination of employment without further inquiry, affirming that due process was provided during the Industrial Court's review.

Introduction

[1] On 22 May 2023, I dismissed the applicant's, (Sathasivam Muthusamy) application for judicial review. The applicant had claimed an order of certiorari to quash Award No 1200 of 2021 [[2022] 1 MELR 533] dated 5 August 2021, handed down by the Industrial Court ("the impugned award") pursuant to a claim of dismissal without just cause and excuse by the applicant's employer, Tenaga Nasional Berhad ("the 1st respondent"). The claim was made under s 20 of the Industrial Relations Act 1967 .

[2] Also dismissed was an order of mandamus to compel the Industrial Court to grant the necessary remedies and/or reliefs to be given or alternatively for this Court to grant the necessary remedies and/or reliefs.

[3] This judgment contains the full reasons for my decision.

Background

[4] The applicant was employed as a driver with the 1st respondent with effect from 15 June 2005. By letter dated 31 January 2011, the applicant was promoted to the post of crane operator commencing 14 February 2011, at the 1st respondent's Raub Station. The applicant was subsequently terminated with effect from 31 July 2012, as stated in the 1st respondent's letter dated 10 October 2012 ("the letter of termination").

[5] The relevant facts leading to the dismissal are as follows:

(i) The applicant failed to report for duty from 31 July 2012, without leave or prior approval. A show cause letter was issued on the same day requiring the applicant to provide written explanation for his absenteeism. However, the show cause letter could not be delivered after the 1st respondent was notified by the police of applicant's arrest the next day i.e. 1 August 2012.

(ii) The police in a letter dated 8 August 2012, informed the 1st respondent the reason for the arrest i.e. being in possession of dangerous drugs in violation of s 39B of the Dangerous Drugs Act 1952 .

(iii) The letter also stated that the applicant's urine tested positive for Methamphetamine and as a result the applicant was also being investigated under Subsection 15(1) of the Dangerous Drugs Act 1952 .

(iv) In a letter dated 26 September 2012, the police informed the 1st respondent that the applicant had been charged for offences under ss 39B and 15 of the Dangerous Drugs Act 1952 and was remanded without bail at the Penor Prison pending his trial.

(v) The 1st respondent's disciplinary committee sat and decided to terminate the applicant's employment as the contract of employment was frustrated with the arrest and detention of the applicant. In the letter of termination, the applicant was informed that given his detention and as a result his inability to report for work to carry out his duties as crane operator, his contract of employment was deemed frustrated and his last day of employment with the 1st respondent was on 31 July 2012. The relevant excerpts of the letter of termination are reproduced below:

SURAT PENAMATAN PERKHIDMATAN ATAS KEKECEWAAN KONTRAK (PENAHANAN)

Saya merujuk kepada surat Ketua Bahagian Siasatan Jenayah Narkotik Daerah, Ibu Pejabat Polis Daerah, Raub Pahang bertarikh 26 September 2012 yang mengesahkan bahawa tuan telah ditahan di Penjara Penor, Kuantan di bawah s 39B Akta dadah Berbahaya 1952 atas kesalahan memiliki dadah merbahaya.

Akibat dari penahanan tuan itu, tuan tidak dapat hadir ke tempat kerja untuk menunaikan tanggungjawab tuan sebagai Pengendali Kren Tingkatan Biasa 'B' di Pejabat Pengurus Cawangan (Raub). Dengan ini, tuan telah mengecewakan kontrak perkhidmatan tuan