Mohd Ghazali Yusoff JCA:

This was an appeal against the decision of the learned judge, High Court, Kuala Lumpur who dismissed the appellant's application for an order of certiorarito quash the award of the Industrial Court and for an order of mandamus to direct the Industrial Court to hear his dismissal case on the merits.

The appellant, who claimed that he was an employee of Metatrade Sendirian Berhad, the respondent, and which according to the evidence is a subsidiary company of Metacorp Berhad, considered that he had been dismissed without just cause or excuse by the respondent and consequently made representations to the Director General for Industrial Relations. The representations were subsequently referred to the Industrial Court by the Minister for an award pursuant to s. 20(3) of the Industrial Relations Act 1967 ("the Act").

In his "statement of case" before the Industrial Court, the appellant stated that at the material time he was the executive director and general manager of the respondent and his last drawn salary was RM5,000 per month. It is his claim that as an employee he was entitled to the following:

(a) a basic salary;

(b) a fully maintained company motor-car;

(c) housing interest subsidy;

(d) household utilities, viz., his telephone, water and electricity bills were paid by the respondent;

(e) 13% of basic salary for Employment Provident Fund;

(f) annual overseas trip with his family; and

(g) corporate membership to two golf clubs.

He also stated therein that he had enjoyed receiving a 5-months bonus for the last three financial years. By letter dated 17 February 1993 the respondent summarily dismissed him with effect from the date of the letter. He contended that:

(i) the said dismissal was without any or any just cause or excuse; and

(ii) that the said dismissal was contrary to the principles of natural justice, equity, good conscience and an unfair labour practice which ought to be struck down as such by the court.

As such he prayed for reinstatement to his former position without loss of any benefits monetary or otherwise whatsoever.

When the matter was set down for hearing on 18 October 1995 before the Chairman, Industrial Court, the respondent raised a preliminary objection, namely, that the appellant was not a "workman" within the meaning of s. 2 of the Act and as such the Industrial Court had no jurisdiction to hear and determine the reference to it by the Minister. In order to determine whether the appellant was or was not a workman, the Chairman heard oral evidence and perused documents submitted to him. On 27 October 1995, he came to the conclusion that the appellant was not a workman within the meaning of s. 2 of the Act and "therefore the Industrial Court has no jurisdiction to hear and determine the reference made to it by the Minister under s. 20(3) of the Act" .

The appellant, upon obtaining leave, moved the High Court for an order of certiorarito quash the award of the Industrial Court and for an order of mandamus to direct the Industrial Court to hear his dismissal case on the merits. On 25 July 1996 the learned Judge dismissed the appellant's application with costs.

As discussed earlier, in dealing with the respondent's preliminary objection, the Chairman, Industrial Court proceeded to hear oral evidence. He first heard witnesses for the respondent. The first witness, Noor bin Noordin, the Chairman and Managing director of Metacorp Berhad, viz., the holding company of the respondent, testified that the appellant was running the respondent and had the power to recruit and terminate staff. He also stated as follows:

I disagree Claimant was the GM but employee of Company. He was the Executive Director of the group and Company and was also an employee. He was employee of Company as Executive Director until he was dismissed.

Claimant joined Metakem as a Chemist. He later became Factory Manager of Metakem. Later when Metatrade was formed the commercial trade in Metakem was moved to Me