Neal J (delivering oral judgment):

This is an appeal from the decision of the Labour Officer, Johore Bahru, given on 22 October 1959, when on the complaint of the present respondent he made an order in favour of the respondent against the appellant for the payment of a sum of $14.97, being wages due to the respondent, and a sum of $90, being indemnity in lieu of one month's notice.

In the course of his grounds of judgment the Labour Officer held that the appellant could (I emphasise the word could and not should) "have given a month's notice to terminate the complainant's service instead of having given several warnings". Reading the whole of the grounds of judgment and the issues which the Labour Officer himself fixed and the evidence on the record, it is obvious that the Labour Officer had misunderstood the point in issue.

The only point in issue in this matter is whether or not the appellant as the employer, by virtue of s. 14 (1) of the Employment Ordinance, 1955, was entitled to dismiss the respondent without notice for misconduct. The onus of proving misconduct to justify dismissal without notice rests upon the employer. What amounts to misconduct is adequately set out in the following words of Willies J in the judgment of the Court of Appeal in Harmer v. Cornelius 141, ER 94 (at p. 98): "The failure to afford the requisite skill which had been expressly or impliedly promised, is a breach of legal duty, and therefore misconduct".

In this particular case there can be no doubt that the wounding of the trees other than by accident would constitute a breach of the skill required from an experienced tapper and, except in isolated instances, would constitute misconduct. On the record there is a statement by the respondent that trees were wounded by him, the number being unknown to him, but he alleged that the wounding was not such as would have reduced the quantity of latex to be received from the trees during their life-time. The appellant, however, alleged extensive and dangerous wounding. He stated that from approximately the month of January 1959, he had warned the respondent culminating in a warning on 25 August that unless the respondent's work improved he would have to look for a job elsewhere. This evidence was corroborated by the appellant's Conductor, a Chinese.

In view of those warnings following conduct of the respondent which could adequately be described as coming within the definition of is "misconduct", I have to consider the effect of a continuation of work after those warnings. It is clear law that a master, with the full knowledge of a servant's misconduct, electing to continue him in the service, cannot subsequently dismiss him for the offence which he had by his warning and subsequent employment condoned. On this aspect of the case the record was extremely sparse. The last warning was on 25 August. As to any misconduct subsequent thereto the respondent stated that rubber trees were not wounded during the month he was dismissed. Even if his words were accepted, they did not cover the period of employment from 25 August to the end of that month. I emphasise "even if his words were accepted". The evidence by the appellant and his witness is in general terms. The evidence of the appellant on the record is that "in spite of the advice and warnings, he (the respondent) failed to improve his tapping. But his wounding increased to such an extent that it could not be tolerated any more. Hence he was dismissed on the 21 September 1959". The witness for the appellant is perhaps a little clearer on the question whether or not some wounding took place after the final warning. This witness says "in the course of his work he was warned three times for bad tapping. In spite of this he did not improve his tapping. Hence, he was dismissed on 22 September 1959". I emphasise the words "in spite of".

During the course of the submission I pointed out that it was unfortunate. That the appellant had not given dates