The Industrial court must determine if an employee's dismissal for misconduct is justified and proportionate based on the severity of the misconduct, respecting employer discretion.

[1] This court had, on 7 March 2012 granted leave to the appellants to appeal on the following question of law:

"Whether by virtue of s 20(1) of the Industrial Relations Act 1967 the Industrial court, in determining whether the dismissal of an employee was with just cause or excuse, is required to consider whether the punishment of dismissal was warranted in and proportionate to the findings of misconduct by the employer?"

[2] The background facts are as follows. All of the appellants were confirmed employees of the 2nd respondent prior to their dismissal on 27 April 2004. At all material times, the appellants were active members of the National Union of Bank Employees ("NUBE").

[3] In October 2003, NUBE and some of its members commenced lawful trade union picketing pursuant to s 49(1)(i) and (ii) of the Industrial Relations Act 1967 in relation to a trade dispute between NUBE and the 2nd respondent in connection with NUBE's dissatisfaction over several work related matters and certain terms and conditions of employment.

[4] The said picketing outside the 2nd respondent's premises at Bangunan BCB No 6, Jalan Tun Perak, Kuala Lumpur ("BCB Building") commenced on 9 October 2003 and continued on 13 October 2003,14 October 2003, 20 October 2003 and 21 October 2003.

[5] On 21 October 2003, the appellants were outside of BCB Building at about 12.30pm to commence picketing. The picket ended at approximately 1.30pm.

[6] The appellants claimed that when the NUBE members and the appellants were approaching the side entrance of BCB Building to return to their respective work stations after the picketing the 2nd respondent's security officers, who were on duty, blocked the said entrance by forming a barricade to prevent the NUBE members and the appellants from returning to their respective work stations.

[7] As a result of the lock out, the NUBE officials made sure that their members, including the appellants, were permitted to return to their work stations without any further intimidation/harassment by the 2nd respondent's security officers. The appellants denied that they participated in any picket within the premises of the 2nd respondent.

[8] The 2nd respondent on the other hand, claimed that at or about 1.25pm on 21 October 2003 the picketers moved from the front of the BCB Building and proceeded towards the side entrance of BCB Building holding placards and balloons. They thereafter barged through the side entrance despite attempts by security personnel to prevent them from doing so.

[9] The 2nd respondent also claimed that this group of picketers thereafter proceeded to the lobby and entered the banking hall. After a couple of minutes, they left the premises and dispersed. Their conduct was captured on the 2nd respondent's security closed circuit television.

[10] The 2nd respondent claimed that the appellants, as employees, had conducted themselves in a manner that had disrupted the 2nd respondent's business and operations. Their conduct also caused disrepute to the 2nd respondent's image as a premier financial institution in the country.

[11] The 2nd respondent then issued letters of suspension to fifteen employees, including the appellants from duty pending further investigations into their conduct on 21 October 2003. The 15 employees, including the appellants, were t