Dismissal without just cause requires proof of misconduct; provocation can negate just cause.

The parties to the dispute are Raman Ramasamy (hereinafter referred to as the claimant) and Saipem (M) Sdn. Bhd. (hereinafter referred to as the company).

The dispute is over the dismissal of the claimant on 27 December 1996 by the company. See exh. CO p. 9.

The claimant commenced employment on 12 July 1994 as a surveyor with the company at a basic salary of RM6,200 per month. He was also entitled to a month's bonus. See exh. CO pp. 3-7.

The claimant contends that the dismissal was without just cause and excuse.

Further, or in the alternative, the claimant contends that the dismissal was not in accordance with the principles of natural justice and not in accordance with equity and good conscience.

The claimant prays for an order that he be reinstated to his former position without loss of any benefits, monetary or otherwise.

In the statement in reply, the company states that the claimant was dismissed on the basis that he physically assaulted a colleague, Barry John Metcalfe, on or about 27 December 1996. The company contends that the misconduct was further aggravated by the fact that the claimant had used a wooden stick to strike Barry John Metcalfe. In view of the seriousness of the misconduct, the claimant's services was terminated with effect from 27 December 1996. One of the issues raised by the claimant in his statement of case was that he was dismissed without the company holding a domestic inquiry before terminating his services. The court holds that the failure to hold a domestic inquiry before dismissal is not fatal. In Wong Yuen Hock v. Sykt. Hong Leong Assurance Sdn. Bhd. & Anor. Appeal , , his Lordship Mohd. Azmi FCJ said:

Thus even where there was a breach of contractual or statutory obligation to hold an inquiry, the Industrial court should proceed to determine on the merits firstly, whether the misconduct complaint of was in fact committed by the employee, and secondly whether the nature and extent of the misconduct could constitute just cause or excuse for the dismissal.

The court is also mindful that the burden of proof for the ground for the dismissal is upon the employer. See Goon Kwee Phoy v. J & P Coats (M) Sdn. Bhd. . See also Kama Morris Sdn. Bhd. v. Lee Chwee Say ; [1990] 1 ILR 435A .

COW1, Claudio Fedele Savini, said that he was the project director and also a director of the company. He said that the letter of offer of appointment made to the claimant is at pp. 1 and 2 of exh. CO. He said the employment agreement dated 12 July 1994 was at pp. 3-7 of exh. CO. He said the police report lodged by Barry John Metcalfe on 27 December 1996 is at p. 8 of exh. CO. He said the letter of dismissal dated 27 December 1996 was at pp. 9-10 of exh. CO. He said he was informed by the acting construction manager of the incident in the morning of 27 December 1996. After he came to know of the incident, he discussed the matter with the acting construction manager and felt the facts were correct. The acting construction manager stated that the fight took place. COW1 recommended that the claimant's services should be terminated. The claimant had breached cl. 12 of the employment agreement. COW1 also stated that the services of Barry John Metcalfe was also terminated. COW1 said that fighting is a serious misconduct. The fight took place during working hours of the company.

COW2, Noran Abdul Rahman, the personnel manager of the company said that the letters at pp. 9 and 10 of exh. CO shows the compensation of money to be paid to the claimant upon his termination. He said his signature appears on the letter dated 27 December 1996 which is at pp. 9 and 10 of exh. CO. In cross examination, COW2 said that before 23 December 1996 Barry John Metcalfe did not have a work permit. He said Barry John Metcalfe was working in the company from 5 November 1996.

COW3, Don Hafiz Salindar Abdullah, said he was working in the company on 27 December 1996. He said he witnessed a fight between the claimant and Barry John Metcalfe on that day around 6