The court reaffirmed that misconduct warranting dismissal must be established, considering both the actions of the employee and their impact on the employer.

Table of Content
1. misconduct regarding personal business during work hours. (Para 1 , 2 , 3)
2. duty of the court to ascertain if misconduct occurred. (Para 4 , 5 , 6)
3. assessment of trust and employer-employee relationships. (Para 7 , 8 , 9)

Sgd x x x T. Ichikawa Managing Director

I, ... Staff No. ... confirm receiving the above stated letter on ...

Signature Date ... ...

In Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd. , in allowing the appeal Salleh Abas LP (delivering the judgment of the court) at p. 49 had this to say:

When the Industrial court is dealing with a reference under Section 20 , the first thing that the court will have to do is to ask itself a question whether there was a dismissal, and if so, whether it was with or without just cause or excuse.

As in Wong Chee Hong's case (supra) this court is charged with the duty of first considering whether the claimant was dismissed. Only when the court having decided that there was a dismissal in the true meaning of the word could the court consider if the dismissal as such by the employer was with or without just cause or excuse.

There are two questions which the court has to ask itself in this case.

(1) Was there a dismissal and

(2) If so whether the dismissal as such was with or without just cause or excuse.

In this instant case it is not in dispute that the claimant was dismissed by the company with immediate effect by a letter dated 3 October 1997 (CLB1) a copy of which has been reproduced earlier for ease of reference.

The next question this court has to consider is whether the dismissal as such was with or without just cause or excuse.

In Goon Kwee Phoy v. J & P Coats (M) Bhd. his Lordship Raja Azlan Shah CJ (Malaya) (as he then was) at p. 136 had this to say:

Where representations are made and are referred to the Industrial court for enquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse.

If the employer chooses to give reason for the action taken by him, the duty of the Industrial court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the court is the reason advanced by it and that court or the High court cannot go into another reason not relied on by the employer or find one for it.

In Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. and Another Appeal [1995] 1 MLRA 412 , [1995] 2 MLJ 753 at p. 352 Mohd Azmi FCJ (delivering the grounds of judgment of the court) had this to say:

On the authorities, we were of the view that the main and only function of the Industrial court in dealing with a reference under s. 20 of the Act (unless otherwise lawfully provided by the terms of the reference), is to determine whether the misconduct or irregularities complained of by the management as the grounds of dismissal were in fact committed by the workman, and if so, whether such grounds constitute just cause or excuse for the dismissal. In our opinion, there was no jurisdiction by the Industrial court to change the scope of reference by substituting its own reason.

This principle was reaffirmed in the case of Milan Auto Sdn. Bhd. v. Wong Seh Yen [1995] 2 MLRA 23 , [1995] 3 MLJ 537 where Mohamed Azmi FCJ (delivering the grounds of judgment of the court) at pp. 454-455 had this to say:

As pointed out by the court recently in Wong Yuen Hock v. Hong Leong Assurance Sdn. Bhd. [1995] 1 MLRA 412 , [1995] 2 MLJ 753 , the function of the Industrial court in dismissal cases on reference under s. 20 is twofold, first, to determine whether the misconduct complained of by the employer has been established, and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal.

The company has given reasons for the action taken by the company. The duty of the court next is to determine first

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