James Foong JCA:

Introduction

[1] We heard this appeal on 23 January 2007, and unanimously allowed it with costs. We now give our reasons. Before we do so, the following are the brief facts of the case.

Facts

[2] The respondent was at all material time an employee of the appellant. She was then 47 years of age and had been with the appellant for 11 years before she was dismissed on 6 June 1999. The reason for her dismissal was that she was found fighting with another employee of the appellant on 15 June 1999 in the appellant's premises. This other employee was none other than her own niece, Julie, who was then 17 years of age. Julie was also dismissed by the appellant. Before dismissing the respondent, the appellant held a domestic inquiry that found her in breach of the appellant's rules and regulations of employment and recommended her dismissal. Dissatisfied with this decision, the respondent made representation under s 20(3) of the Industrial Relations Act 1967 ("the Act") for reinstatement to her former position without loss of service and seniority with back wages, allowances, commissions, benefits and privileges, or, alternatively for loss of wages as compensation in lieu of reinstatement. This representation was eventually referred to the Industrial Court for an award. When the Industrial Court dismissed the respondent's representation, she applied to the High Court for judicial review seeking for an order of certiorari to quash the award of the Industrial Court. This was allowed with a direction that the matter be remitted back to the Industrial Court to consider the amount of compensation in lieu of reinstatement to be paid to the respondent. The appellant, dissatisfied with this outcome, appealed to us.

Our Reasons

[3] We approach this appeal by first examining whether the learned judicial commissioner had applied the correct principle of law in conducting the judicial review. It is well established in Chief Constable of the North Wales Police v. Evans [1982] 3 All ER 141 that:

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Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the Court is observed, the Court will in my view, under the guise of preventing abuse of power, be itself guilty of usurping power

[4] This approach was adopted by the Supreme Court in Harpers Trading (M) Sdn Bhd v. National Union of Commercial Workers, [1991] 1 MLJ 417; where Jemuri Serjan SCJ (as he then was) said:

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It seems to us that it should be treated as trite law that judicial review is not an appeal from a decision but a review of the manner in which the decision was made and the High Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable. There is no dearth of authorities on this proposition...

(and at p 887)

On the authorities quoted above it is not the function of the High Court in exercise of its supervisory jurisdiction to hear a dispute 'de novo') and decide it on its merits.

[5] This approach was once again repeated by us in Menara Panglobal Sdn Bhd v. Arokianathan Sivapiragasam, [2006] 3 MLJ 493 where Mohd Ghazali Yusoff JCA advised (at p 526):

From the authorities discussed above, I would think that in dealing with judicial review a Judge should have the following principles, inter alia, in the forefront of his mind:

(i) judicial review is not an appeal from a decision but a review of the manner in which the decision was made;

(ii) the High Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable;

(iii) the High Court, through judicial review, should not introduce technicalities of the Court of law to the Industrial Court; this would certainly be so as s 30(5) of the Act imposes a duty upon the Industrial Court to have regard to substantial merits of a case rather than to technicalities and it also requires the