AWARD

The dispute between the parties emanates from the dismissal of Thomas Jefferson Bell IV ("the claimant") by Tanco Resort Berhad ("the company") on 5 August 2000 allegedly without just cause or excuse.

VideTanco Resort Bhd lwn. Thomas Jefferson Bell IV (Award No. 954 of 2004), the claimant's claim against the company was struck off with liberty to file afresh owing to his absence in court during the mention of his case on 9 August 2004. The court record showed that the claimant had been duly served with the notice of mention concerned.

Vide the present application dated 4 November 2004 filed within the permitted period of 3 months from 9 August 2004, the claimant applied to set aside Tanco Resort Bhd lwn. Thomas Jefferson Bell IV (Award No. 954 of 2004) and for Case No. 14/4-968/04 to be reinstated. The said application came up for hearing before this court on 17 December 2004.

In his supporting affidavit affirmed also on 4 November 2004, the claimant, a foreigner, deposed that at the material period he was no longer residing at the Port Dickson address as stated in the ministerial reference of 30 April 2004. As such, he did not receive the relevant notice of mention. Currently, he is residing at Taman Kepong Indah Selangor. He stated that he had earlier written to the Industrial Relations Department vide his letter dated 2 October 2002 (exhibit "A") for all correspondence concerning his claim to be forwarded to his then solicitors, Messrs Chim Yiam & Associates. Apparently the Department had overlooked the same.

Before this court, the claimant's learned counsel, Miss M. Kamalam of Messrs Kamalam & Associates who was formerly attached to Messrs Chim Yiam & Associates confirmed the same. She clarified that the claimant became aware of the status of his case when inquiries were made of the court by her regarding his matter. The learned counsel who also mentioned on behalf of Messrs William Leong & Co Solicitors for the company, also informed that the company had not filed any affidavit opposing the claimant's present application. However, the company had requested that the application be stayed until after the lapse of a restraining order obtained by them in the High court in Saman Pemula No. D4-24-223-2004 which would expire on 13 April 2005.

This court, having considered and accepted the claimant's explanations, had no good reason not to reinstate Case No. 14/4-968/04. Regarding the aforesaid restraining order, this court was of the opinion on the basis of established authorities that it did not apply to a ministerial reference made under s. 20(3) of the Industrial Relations Act 1967 . The claimant case had beeen strunk off without hearing on the merits. Following that, the claimant had taken immediate steps to rerive his case within the time period given. As the object of reinstatement is to give the claimant an opportunity of being heard (see Bank Pusat Kerjasama (In Receivership) v. Mahkamah Perusahaan Malaysia & Anor , [1994] 3 MLJ 537 ),and being mindful of its powers under s. 30(5) of the Industrial Relations Act 1967 to Act according to equity, good conscience and the substantail merits of the case without regard to technicality and legal form, this court accordingly made an order in term of the claimant's Notice of Application.

As a consequence of the reinstatement, the claimant was ordered to file his Statement of Case on or before 24 January 2005 and the company, their Statement in Reply on or before 28 February 2005. Both Parties were also ordered to file their respective bundle of documents on or before 21 March 2005. This case shall be set down for hearing on the merits in due course by the registrar.