Ahmad Fairuz FCJ:

The respondent was the General Manager of the appellant's office in Penang when he was suspended by the appellant pending investigations into allegations against him. A domestic inquiry found the respondent guilty of eight of them. The appellant, however, did not dismiss the respondent. Instead, the respondent was told to report for work on a demoted rank. He protested. An exchange of correspondence ensued between respondent and appellant. In the meantime, the respondent absented himself from work for a period of 35 days. Consequently, the appellant terminated his employment with the appellant. The respondent then made representations to the Director-General of Industrial Relations. He contended that he had been dismissed without just cause or excuse. Unable to resolve the dispute, the respondent's representations were referred to the Minister who then referred the matter to the Industrial Court which held that the respondent had been dismissed without just cause or excuse. The appellant then moved the High Court at Penang for certiorari. This was granted by the court. The respondent then appealed to the Court of Appeal which allowed the appeal. Dissatisfied with the decision, the appellant applied to this court for leave to appeal and leave was granted. According to the order granting the leave, the following two questions were posed for the determination of this court:

(a) when does time begin to run under s. 20(1) of the Industrial Relations Act 1967, where there has been an abandonment of employment, it being a common fact that the employee had failed to turn up for work for six-seven weeks after his demotion;

(b) is it "dismissal" within the meaning of s. 20(1) of the Industrial Relations Act 1967, where the employer notifies the employee that his service is terminated because he had failed to turn up for work - is it "termination" by the employer or repudiation of contract of employment by the employee.

As to question (a) posed in para. (1) above, the learned counsel for the appellant submitted that the respondent's failure to attend work from 3 May 1989 until 6 June 1989 can be treated as if the respondent had considered himself to have been dismissed and time for purposes of s. 20(1A) Industrial Relations Act 1967 (IRA) began to run from 3 May 1989. Section 20(1A) reads:

The Director General shall not entertain any representations under subsection (1) unless such representations are filed within sixty days of the dismissal:

Provided that where a workman is dismissed with notice he may file a representation at any time during the period of such notice but not later than sixty days from the expiry thereof.

And as the respondent's representation to the Director-General was received on 21 July 1989, there is an interval of about 80 days. Thus, the appellant argued, the respondent was out of time when he made the representation. Alternatively, the appellant submitted that the respondent had notice of his demotion a day or two after 12 May 1989, ie, at the latest by 14 May 1989. This is because the letter from the appellant to the respondent dated 12 May 1989 categorically made mention of the respondent's new position as "Manager (General Affairs)". It was argued that if 14 May 1989 is taken as the dismissal date, then the representation was received seven days late. In the circumstances the appellant contended that there was a violation of an express statutory provision and as such the Industrial Court has no jurisdiction to consider the respondent's representation.

The respondent, on the other hand, contended that the dismissal took place on 6 June 1989. This is because the dismissal letter is dated 6 June 1989. The respondent's representation was received on 21 July 1989. The respondent therefore had taken about 45 days calculated from 6 June 1989 to file his representation. Hence the respondent was well within the time limit set under s. 20(1A).

As to the appellant's alternative argument on the