Haji Mohd Eusoff b. Chin SCJ:

It is not disputed that the five appellants received identical letters dated 31 October 1985, from their employer, which is the respondent to the effect that owing to economic downturn the firm was experiencing diminished workload and that this had caused the posts held by the five appellants to become redundant. As a result the respondent had to retrench the appellants and that they be paid retrenchment benefits.

On 12 November 1985, each of the appellants acknowledged by letter the receipt of retrenchment payments, but said they did so under protest. They then made a representation to the Director General of Industrial Relations that they considered themselves to have been dismissed without just cause or excuse and that they ought to be reinstated to their former employment. The Director General referred the matter to the Minister who after being satisfied, referred the dispute to the Industrial Court.

At the hearing before the Industrial Court, the respondent's learned Counsel raised a preliminary objection stating that the appellants were estopped from bringing the matter before the Industrial Court because they have already received their retrenchment payments. The Industrial Court's Award stated that on the preliminary objection alone, the appellants' claim should be dismissed. The learned High Court Judge when considering an application for certiorari to quash the award of the Industrial Court correctly decided that the Industrial Court committed an error going to jurisdiction because estoppel does not, under s. 30(5) of the Industrial Relations Act 1967, apply to industrial adjudication.

The learned Judge, however, having scrutinised the Industrial Court's award, stated that the Industrial Court had in its award dealt with the merits of the case as well, and that was because the parties before the Industrial Court had argued on the issue whether the termination of the employment of the appellants was in fact retrenchment. The learned Judge found that because the Industrial Court had dealt with the merits of the case, he confirmed the dismissal of the applicants' claim by the Industrial Court.

Section 30(5) of the Industrial Relations Act 1967 states:

30(5) The Court shall Act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.

Rule 22(1) and (2) of the Industrial Court Rules 1967 requires the President of the Industrial Court to call upon the parties before the Court to adduce evidence if any, to support their claims. The record shows that, because of the preliminary objection, there had been no evidence adduced by the appellants or the respondent before the Industrial Court. This is because the Industrial Court had not given the opportunity to either party to adduce any evidence. What happened was that upon the preliminary objection being raised by the learned Counsel for the respondent, the Court heard arguments based on the record and the pleadings only.

This is the concluding paragraph of the award:

Having given careful consideration to the state of the documentary evidence on record, the pleadings of the parties, and the submissions of both the learned Counsels, - indeed, to the case in all its circumstances - the Court agrees with the case for the company and dismisses the claimants' case.

We find that the Industrial Court had dismissed the appellants' claim purely on the ground of technicalities, i.e. on estoppel. The Industrial Court should have given the parties the opportunity to adduce evidence and then to decide on the evidence whether the termination was the result of genuine retrenchment exercise or dismissal without just cause. To determine the issue of whether it was retrenchment or dismissal, it is necessary for the Industrial Court to investigate the facts and analyse them and make its findings before applying the law to those findings - see Hotel Malaya Sdn. Bhd. & Anor. v. Nationa