Raus Sharif PCA (delivering judgment of the court):

INTRODUCTION

This is an appeal by the appellant against the decision of the Court of Appeal given on 10 February 2012 in allowing the respondent’s appeal against the decision of the High Court. The High Court had earlier on 31 March 2009 dismissed the respondent’s application for judicial review to quash the Industrial Court’s Award No 154 of 2006 dated 5 January 2006.

On 22 October 2012, the Federal Court granted the appellant leave to appeal on the following questions of law, namely:

(a)whether the Industrial Court has the jurisdiction to decide that the dismissal of the appellant was without just cause or excuse by using the doctrine of proportionality of punishment and/or that the punishment of dismissal was too harsh in the circumstances, when handing down an award under s 20(3)Industrial Relations Act 1967

(b)further and/or in the alternative, whether the Industrial Court in exercising its functions as stated in the paragraph above can rely to its powers under s 30(5)Industrial Relations Act 1967

BACKGROUND FACTS

This is a case where the appellant, an employee of the respondent, after a domestic inquiry was dismissed from his employment by the respondent when he was found guilty of four charges of misconduct. The allegation of misconduct levelled against the appellant was that he (the appellant) had falsely declared in writing in breach of the respondent company’s Code of Conduct that he was not serving on the board of directors of any other company when he was at all material times found to be serving on the board of directors of another company. The salient facts leading to the appellant’s dismissal are these: The appellant commenced employment with the respondent company on 19 September 1994 as an assistant manager. He was promoted to the position of manager on 1 May 1995 and later as the personal assistant to the respondent’s chairman on 10 April 1999. On 29 October 1999, the respondent issued a show cause letter to the appellant wherein the appellant was asked to explain the four allegations of misconduct levelled against him. The appellant replied to the show cause letter on 1 November 1999. The respondent was not satisfied with the appellant’s explanation and issued a notice to the appellant to attend a domestic inquiry on 10 November 1999 to answer the four charges of misconduct preferred against him. The relevant charges read as follows:

First charge

You, knowingly and deliberately did not comply with the company’s procedure on leaving the office premises during office hours, by not recording your absence from office during office hours, in the ‘leaving office premises during office hours register’ maintained at the reception area. Records in the register with effect from 10th February 1999 to 25th October 1999 and your response to the numerous queries raised by the Human Resource & Administration Department with regard to your absence from office, confirms that you have not complied with the said procedure.

Second charge

On 19 October 1999, you committed an act of Gross Insubordination by relinquishing your position as Personal Assistant to the Chairman, by writing a note to the Chairman’s Executive Assistant, stating that you no longer work for the Chairman. In your note, you also implied that you have abandoned three assignments that were entrusted to you by the Chairman.

Third charge

On 15 July 1999, you committed an act of dishonesty and breach of trust placed upon you as Personal Assistant to the Chairman, by taking without approval or permission from the Chairman, one (1) badminton racket from the Chairman’s contribution of five (5) rackets from the Chairman’s contribution of five (5) badminton rackets to Panzana’s Sports Club.

Fourth charge

Despite signing Panzana’s Code of Conduct for employees on 29th November 1997, you breached point No. 1 of the code, by not disclosing and obtaining written approval from the Group Chief Executive Officer, of your direct interest a