Low Hop Bing JC:

I. Application

[1] This is an application by the applicant for an order of certiorari to quash an award made by the Industrial Court under the Industrial Relations Act 1967 ("the impugned award") on a reference to it by the Minister under s 20(3). For the purposes of this judgment, a reference to a section is a reference to that section of the Act, unless the context otherwise requires.

II. Applicant's Grounds of Application

[2] In the applicant's statement filed pursuant to O 53 r 1(2) of the Rules of the High 1980, the following grounds are stated:

(a) The Industrial Court erred in law and acted without or in excess of its jurisdiction by failing to apply and/or to apply properly the established principles of industrial law on 'constructive dismissal' laid down by the Supreme Court in Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd; [1987] 1 MLRA 346 [1988] 1 MLJ 92; [1988] 1 CLJ 45.

(b) The Industrial Court ought to have decided that the applicant did not commit any breach of fundamental terms of the contract of service and/ or even if the applicant did commit any such breach (which is denied), by reason of the delay the respondent would be regarded as having elected to affirm the contract, which would disqualify him to claim constructive dismissal.

(c) The Industrial Court asked the wrong questions and considered irrelevant matters and applied the wrong legal tests to conclude that there was a strong and indefensible case of constructive dismissal by the applicant, whereby the Industrial Court acted without or in excess of jurisdiction.

(d) The Industrial Court made various inferences and findings unsupported by legal evidence and failed to make any material findings relevant to the cause of constructive dismissal to arrive at its conclusions.

(e) In all the circumstances of the case, the order of back wages and compensation made in the impugned award is so unreasonable and without any legal basis and in breach of s 30(5) whereby the Industrial Court acted in excess of jurisdiction.

III. Respondent's Submission

[3] The respondent submits that the Industrial Court had not committed any jurisdictional error when making the impugned award.

IV. Facts of this Case

[4] The applicant is incorporated under the laws of Malaysia and is engaged in the import and distribution of chemicals, veterinary and pharmaceutical products. The respondent first joined the service of the company in December 1975 and resigned in June 1980. Subsequently, he rejoined in January 1981 as a senior executive. From about 2 May 1984, the respondent became the personnel and administration manager. Since 1986, the respondent was the coordinator in charge of the company's Shah Alam project, of a value of RM9 million. He continued to be responsible for this project until he walked away from service in October 1989.

[5] During 1988/89, the applicant was facing serious shortage of office space due to additional staff and the bringing in of diagnostic equipment. The respondent was fully aware of this problem. The board room and the chairman's office were converted as office towards this purpose. With the expansion of the diagnostic division, the applicant proposed that the respondent exchange his room with one TS Chee, head of the diagnostic division. Accordingly, the applicant issued a memo dated 17 October 1989 to the respondent.

[6] Thereafter, on 19 October, the respondent attended a meeting with the management and at the request of the respondent, the proposed change of office was postponed till the end of October 1989.

[7] By letter dated 23 October 1989 ("the said letter"), the respondent walked away from his job as he considered himself dismissed by the applicant.

V. The Issue

[8] The issue before the Industrial Court was: On the basis of the said letter, was the respondent right in law to walk away and claim constructive dismissal?

VI. Decision In This Application

[9] In an application for judicial review by way of certiorari, I am mindful of and