Steve LK Shim:

[1] The parties to this dispute are Utusan Melayu (M) Bhd (the company) and the National Union of Journalists Malaysia (the union). The dispute concerns the dismissal or the termination of the services of one Encik Yazid Othman bin Che Seman (the claimant), an employee of the company and a member of the union at all material times. In the statement of case dated 4 December 1990 it is contended that the claimant was dismissed by the company on 5 October 1987; that at the time of his dismissal, he was employed as a journalist in the company drawing a salary of $1,735 a month; that the dismissal was without any or any just cause or excuse, or alternatively, it was contrary to the principles of natural justice and or an unfair labour practice. The union prays for the reinstatement of the claimant to his former position in the company without loss of any benefits monetary or otherwise. The company has filed the statement in reply dated 19 June 1991 denying the allegations and claims in the statement of case, contending inter alia, that the company had no choice but to terminate the claimant's services because of his failure to provide a satisfactory explanation and to deny the allegations levelled against him; that there was adverse publicity created by the union's action against the claimant which had seriously affected the image of the company and that it was no longer possible for the company to repose in the claimant the trust and confidence necessary to discharge his duties as a journalist; that therefore his services were terminated with just cause and excuse.

[2] At the outset, we should state that the company's action in terminating the services of the claimant tantamounts to a dismissal. And the fact of dismissal is not in dispute. What remains to be considered is the issue relating to the general question of whether the dismissal was fair or unfair and this consists of two stages, namely, identifying the reason or principal reason for the dismissal and thereafter examining the reasonableness of the company's decision to dismiss. It is trite law that the burden of proof lies with the company on both counts.

[3] Mr Sivabalah, counsel for the company has contended that the claimant was dismissed for the principal reason that the company could no longer repose any trust and confidence in him as a journalist because (a) the claimant had not provided any satisfactory explanation to its show-cause letter exh CO2 and had not denied the allegations of misconduct against him and or (b) there was adverse publicity caused as a result of press reports concerning allegations of the claimant's misconduct in Japan. We will refer to these stages as sub-reasons (a) and (b) for the purpose of our analysis hereafter.

[4] Now, sub-reason (a) above seems to relate to para 2 of the termination letter exh CO1 which states:

Dukacita dimaklumkan bahawa tuan telah, dalam surat tuan, tidak mengambil sebarang percubaan untuk memberi penjelasan terhadap perkara yang telah syarikat kemukakan dalam surat syarikat bertarikh 15 September 1987 dan tuan juga telah tidak menafikan tuduhan-tuduhan yang telah dikenakan terhadap tuan.

[5] Initially, we think it is not correct to say that the claimant had not denied the charges made against him. His denial in the news report published by the New Straits Times on 30 August 1987 is sufficiently clear, so is his denial in his letter exh CO3 in response to the showcause letter exh CO2 from the company. Therein the claimant has stated specifically "I am not guilty" in reference to the charges against him. It would seem that the part underscored in the paragraph cited above tends to imply that the claimant had not made any attempt to give an explanation which of course is not the case in the light of the testimony of Puan Norziah Noordin CW1, the Corporation Affairs Manager cum Assistant Secretary of the company and the company's letter exh U3 addressed to the solicitors of the claimant at the time.