Procedural fairness is essential in industrial proceedings; exclusion from key procedural aspects without significant justification constitutes a breach of natural justice.

[1] On 18 November 2013 the Court of Appeal dismissed the appeal by the appellant against the decision of the High Court made on 28 April 2010.

[2] The High Court had allowed the judicial review application by the respondent and caused to be issued an Order of certiorari to quash the Award made by the Industrial Court on 7 July 2008. The Industrial Court had dismissed the claim by the respondent for unjust dismissal. The High Court had also ordered that the matter be remitted to the Industrial Court for rehearing before another chairman.

'Whether there has been a denial of substantive fairness and/or a denial of procedural fairness when an Industrial Court, which hears a representation of dismissal without just cause or excuse under s 20(3) of the Industrial Relations Act 1967 and allows part of the proceedings, ie cross-examination of the complainant to be heard "incamera", without the presence of the dismissed employee, but in the presence of his counsel, who had ample opportunity to and did crossexamine the complainant?' ('the leave question').

The Background Facts

[4] On 8 May 2003 the respondent was a 'paxing' crew in the appellant Flight MH 2625 from Kuching to Kuala Lumpur. Paxing crew is not on official duty but en route to another destination to report for duty. At the material time the respondent was holding the post of leading steward in the employment of the appellant.

[5] On the same flight a new assistant stewardess Chaik Mei Heng was on duty ('the complainant'). It was her first sole trip. She was assigned to assist in the Economy cabin. In her complaint to the management of the appellant made on 16 May 2003 the complainant alleged that the respondent had sexually harassed her. It resulted in a domestic inquiry being held by the appellant. There were two charges preferred against the respondent, namely:

Charge 1

'That you, as a leading steward of the company on 8 May 2003, whilst travelling as paxing crew on board aircraft MH 2625 KCH/KUL, did harass one flight stewardess Chai (sic) Mei Heng, S/No 109952-3, to wit:

1. I really like your lips, I am sure when I kiss you on the lips it's going to taste so sweet. It's not your lipstick ... even if you didn't have your make up on I am sure it would look very sweet and nice as well.

2. Oh so you like it hard huh? ... Don't worry, mine is very hard! I'm sure you'll love it.

3. Do you know how to suck, ... You know, whatever that you know how to suck so do you want to do it with me? If you want to do it with me, we can keep it as a secret."

You have thereby committed an act of misconduct inconsistent with the fulfillment of your terms and conditions of employment by virtue of cl 2, para 2.2 Appendix 'A', of the MAS Act of Misconduct, and the General Circular from Senior Vice President Flight Operations dated 29 May 2001 and in violation of cl 15, para 15.10 of the said procedure, and such act of misconduct attracts major punishment';

Charge 2:

'That you, as a leading steward of the company on 8 May 2003, whilst travelling as paxing crew on board aircraft MH 2625 KCH/KUL, did physically harass one flight stewardess Chai (sic) Mei Heng, S/No 109952-3, to wit:

"When she introduced herself to you and offered her hand for a handshake, you took hold of her palm and caressed it with both of your hand." (sic)

You have thereby committed an act of misconduct inconsistent with the fulfillment of your terms and conditions of employment by virtue of cl 2, para 2.2 Appendix 'A', of the MAS Act of Misconduct, and the General Circular from Senior Vice President Flight Operations dated 29 May 2001 and in violation of cl 15, para 15.10 of the said procedure, and such act of misconduct attracts major punishment.'

[6] The domestic inquiry found the respondent guilty of the charges and was thus dismissed with immediate effect vide a letter from the appellant dated 18 November 2003.