James Foong JCA (delivering judgment fo the court):

INTRODUCTION

We heard this appeal on 23 January 2007, and unanimously dismissed it with costs. We now give our reasons. Before we do so, the following are the brief facts of the case.

FACTS

The respondent was at all material time an employee of the appellant. She was then 47 years of age and had been with the appellant for 11 years before she was dismissed on 6 July 1999. The reason for her dismissal was that she was found fighting with another employee of the appellant on 15 June 1999 in the appellant's premises. This other employee was none other than her own niece, Julie, who was then 17 years of age. Julie was also dismissed by the appellant. Before dismissing the respondent, the appellant held a domestic inquiry that found her in breach of the appellant's rules and regulations of employment and recommended her dismissal. Dissatisfied with this decision, the respondent made representation under s 20(3)Industrial Relations Act 1967 compensation in lieu of reinstatement to be paid to the respondent. The appellant, dissatisfied with this outcome, appealed to us.

OUR REASONS

We approach this appeal by first examining whether the learned Judicial Commissioner had applied the correct principle of law in conducting the judicial review. It is well established in Chief Constable of the North Wales Police v Evans

Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing abuse of power, be itself guilty of usurping power

This approach was adopted by the Supreme Court in Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers

It seems to us that it should be treated as trite law that judicial review is not an appeal from a decision but a review of the manner in which the decision was made and the High Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable. There is no dearth of authorities on this proposition…

(and at p 421)

On the authorities quoted above it is not the function of the High Court in exercise of its supervisory jurisdiction to hear a dispute ‘de novo’ and decide it on its merits

This approach was once again repeated by us in Menara Panglobal Sdn Bhd v Arokianathan a/l Sivapiragasam

From the authorities discussed above, I would think that in dealing with judicial review a judge should have the following principles, inter alia, in the forefront of his mind:

ijudicial review is not an appeal from a decision but a review of the manner in which the decision was made;

iithe High Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable;

iiithe High Court, through judicial review, should not introduce technicalities of the court of law to the Industrial Court; this would certainly be so as s 30(5) of the Act imposes a duty upon the Industrial Court to have regard to substantial merits of a case rather than to technicalities and it also requires the Industrial Court to decide a case in accordance with equity and good conscience;

ivthe main and only function of the Industrial Court in dealing with a reference under s 20 of the Act is to determine whether the misconduct or irregularities complained of by the management as to the grounds of dismissal were in fact committed by the workman and if so, whether such grounds constitute just cause or excuse for the dismissal;

vthe Industrial Court should not be burdened with the technicalities regarding standard of proof, the rules of evidence and procedure that are applied in the court of law;

vithe High Court will not interfere with finding of facts by the Industrial Court unless the same are completely unsupported by evidence and further, will not interfere merely because it may come to different c