Gunn Chit Tuan J (High Court Judgment)

This originating motion was an application by J & P Coats (M) Bhd. (hereinafter referred to as "the company") for an order of certiorari to remove into the High Court to quash Industrial Court Award No. 66/79 ordering the company to pay one Mr. Goon Kwee Phoy (hereinafter referred to as "the workman"):-

(a) as compensation in lieu of reinstatement the total remuneration he would have earned from his salary from January 1978 to May 31, 1979.

(b) any bonus, allowances or benefits due under the Company's Pension Scheme or otherwise from January 1978 to May 31, 1979.

(c) as compensation for loss of future earnings, the total remuneration based on his last drawn salary calculated from June 1, 1979 to April 22, 1980.

The grounds on which relief was sought by the company are contained in a statement filed pursuant to Order 59 rule 3(2) of the Rules of the Supreme Court England 1883. Briefly the complaint of the company was that the Industrial Court had erred in law and had acted in excess of its jurisdiction or without jurisdiction:-

(i) in misdirecting itself on the meaning and effect in law of the term "redundancy";

(ii) in failing to distinguish the legal definition between "dismissal from service by reason of misconduct as a punitive measure" and "termination of service" by due notice or salary in lieu;

(iii) in awarding compensation under section 20 of the Industrial Relations Act, 1967 and/or in awarding compensation which was contrary to established principles of law.

The said workman first commenced employment in the company w.e.f. April 1, 1972 and his letter of appointment was as follows:-

"Letter of Appointment

We confirm herewith your appointment to the staff of J. & P. Coats (Malaysia) Sdn. Bhd., subject to the following conditions:-

1. Your employment will commence as from 1st April 1972 at a salary of $1,300.00 per month.

2. You are employed as Purchasing Officer and for such other duties as may be assigned to you from time to time and you will not engage in any other business or occupation whatsoever and will not divulge to any person, firm or corporation any knowledge or information which you may acquire during the course of or incidental to your employment concerning the company's business, affairs or property.

3. You are entitled to twenty one days (21) with salary and allowances at such times as may be convenient to the company.

4. If you shall at any time disobey or neglect or refuse to perform or comply with all directions given by the company or any office of the company in respect of your employment or shall fail to observe any of the terms confirmed in this letter or shall be guilty of insobriety, misconduct or dishonesty, you may be immediately dismissed without notice and shall not be entitled to payment of any sum whatsoever except your salary and allowances (if any) up to the time of dismissal.

5. For the purpose of computing service benefit, your services with Malayan Thread Co. Sdn. Bhd. will be taken into account. All service benefits accrued by you during your service with Malayan Thread Co. Sdn. Bhd. will be retained by us and shall be only payable to you upon retirement from this company, or should you decide to resign from the services of J. & P. Coats (M) Sdn. Bhd. before your Retirement date, service benefits retained by us in respect of your past services with Malayan Thread Co. Sdn. Bhd. will be paid to you on termination of service with company.

6. This appointment is terminable by giving one month's notice in writing or pay in lieu thereof by either the company or yourself. (emphasis supplied).

This letter does not purport to be an exhaustive list of the terms of employment offered to you but will guide you on the main points. If you are in agreement with its contents, please sign on the space provided in the duplicate copy."

According to the company, the workman's services were terminated by a letter dated January 19, 1978 on the grounds that his positi

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