Low Hop Bing JCA:

Appeal

[1] The appellant ("the employee") appeals to this court against the decision of the Kuala Lumpur High Court in quashing the award of the Industrial Court.

Factual Background

[2] The employee joined the respondent ("the company") on 28 September 1983 as a junior receptionist at a salary of RM155 per month.

[3] She was promoted as senior receptionist on 27 August 1984 and then as front office executive with effect from 16 May 1991.

[4] On 1 March 1997, the employee was transferred to the company's Dulang Coffee House as an executive under the Food & Beverage (F&B) Department vide letter dated 27 February 1997. Her last drawn salary was RM1,659 per month. The employee objected to the transfer on the ground that she had no experience or knowledge of food and beverage. However, she reported for duty under protest.

[5] When the employee was in the front office, she had been challenging the company's warning letters given to her for habitually arriving late for work and failure to promptly submit medical chits for medical leave. Be that as it may, she complained that, unlike other employees, she was not given the annual increment for the year 1997; and she was given a one-month bonus, while other employees were given two months.

[6] After the employee's transfer to the F & B Department, the company gave her the job specifications, dated 11 March 1997, which include, inter alia, the following:

You are to ensure that you and your staff are well groomed reporting for duty. Personal grooming is of utmost importance and all staff should be in well-dressed attire.

[7] Subsequently, the F & B manager sent the employee a memo dated 12 March 1997 whereby the employee was directed to wear uniform, and, for that purpose, the company gave her two skirts, one jacket and one white blouse.

[8] The employee, apparently dissatisfied, alleged that other female executives in the F & B Department did not have to wear uniforms and that she was the only executive who had been asked to do so.

[9] The F & B manager then issued a memo dated 20 March 1997, requiring the employee to wear a collared white blouse and a bow tie. The employee alleged that the F & B manager was degrading the employee's position as an executive to that of a waitress, claiming that in the company, only waiters and waitresses wear bow ties. Under protest, the employee wore the uniform and the bow tie, except when she lent the bow tie to other staff. By letter dated 1 August 1997, the F&B manager gave the employee a warning, for not wearing a bow tie. In reply, the employee claimed that she did wear a bow tie.

[10] The company suspended the employee from work, with effect from 17 August 1997, pending domestic inquiry into five charges against her.

[11] Charge (3) was subsequently dropped. The employee was found guilty of the other four charges, the particulars of which are as follows:

Charge (1) In total defiance of the instruction and warning issued on 20 March 1977 by the superior, Mr. Vincent Nonis, and refusal to wear a collared white shirt and a bow tie.

Charge (2) Wilfully and without lawful excuse, habitually reported late for work in spite of numerous warnings.

Charge (3) (Dropped)

Charge (4) and (5): Failure to promptly submit medical chits for medical leave.

[12] After the domestic inquiry, the employee was dismissed with effect from 28 August 1997.

[13] The dismissal was referred to the Industrial Court which found that the employee was dismissed without just cause or excuse. The Industrial Court award was quashed by the High Court by way of an order of certiorari.

[14] After hearing the employee's appeal, we found that the High Court had correctly quashed the Industrial Court award. We dismissed the employee's appeal with costs. Our grounds now follow.

Victimization: Not Pleaded And Not Proved

[15] The employee's learned counsel Mr K Chandra submitted that the learned judge erred in law and in fact in holding that the Industrial Court had