Wan Afrah JC:

The Parties

The parties to this application are Hartalega Sdn Bhd (hereinafter referred to as "the applicant") and Shamsul Hisham bin Mohd Aini (hereinafter referred to as "the respondent").

Facts Of This Case

Briefly the facts of this case are that on 24 April 2000, the respondent was employed by the applicant. The respondent was employed as a System Support workman subject to a probationary period of three months. Upon expiry of the probationary period, the respondent was not confirmed and was released from his employment by the applicant. The respondent was correspondingly informed by a letter dated 24 July 2000 that his performance did not meet the standards required by the applicant.

Pursuant to representations made by the respondent under s. 20(1) of the Industrial Act 1967, the Honourable Minister of Human Resources referred his dismissal to the Industrial Court (hereinafter referred to as "IC") under s. 20(3) of the Industrial Relations Act 1967. The reference was then registered as IC case no. 7/4-447/01.

The Award

On 25 July 2002, the IC in it's Award no. 629 of 2002, awarded the case in favour of the respondent. In the said award, the IC ruled as follows:

(i) the dismissal of the respondent (a probationer) was without just cause and excuse and;

(ii) awarded punitive compensation a sum of RM25,000 to the respondent.

Applicant's Grounds Of Application

The applicant applied for an order of certiorari to quash the IC award and submitted four grounds for review as follows:

(i) The IC had erred in law when applying the wrong test in deciding that the dismissal was without just cause and excuse;

(ii) The IC had erred in law when it substituted the judgment and evaluation of the respondent's performance with its own, which it was not entitled to do;

(iii) The IC erred in law when it took irrelevant matters into consideration;

(iv) The IC had erred in law when it punitive compensation in the amount of RM25,000.

Respondent's Submission

The respondent submitted that the IC had not committed any jurisdictional error when delivering the said award.

Guided Principles Of Law

In proceeding with an application for judicial review by way of certiorari, I am mindful of and hereby apply the following established principles:

a. Judicial review is not concerned with the merits of the decision but the decision making process. It is trite law that IC awards are sheltered from review (and appeal) by virtue of s. 33B(1) except on grounds of error of law.

b. The High Court has the power to quash the impugned award pursuant to s. 33B(1) if the IC commits an error of law or fact, (Syarikat Kenderaan Melayu Kelantan Bhd v. Transport Workers Union [1995] 2 CLJ 748).

c. A decision is also open to challenge on grounds of "illegality" and "irrationality" and, in practice, this permits the courts to scrutinize such decisions not only for process, but also for substance, R Rama Chandran v. The Industrial Court of Malaysia [1997] 1 CLJ 147.

Decision In This Application

First Ground

In identifying whether the Chairman of the IC had applied the right test or a wrong test in deciding that the dismissal of the respondent was with or without just cause or excuse, it would be necessary to examine what was ruled in his award. An extract from the said award which is pertinent to this question is as follows:

In the light of the Court of Appeal case of Khaliah Abbas v. Pesaka Capital Corporation Sdn. Bhd. (Civil Appeal W-04-122 of 1995) which ruled that even a Probationer came within the definition of a "workman", to exclude the employer's conduct from scrutiny of the Court in their allegations of non-performance and/or inefficiency of a Probationer may tantamount to negation of the Section 20(3) IRA 1967 provision conferring the Court with jurisdiction to determine whether a dismissal is with or without just cause and excuse.

At the same time, it is precisely the question of the evidentiary requirement place on the employer whether the du