JUDGMENT

Salleh Abas LP:

This is an appeal from the decision of Wan Hamzah J (as he then was) for refusing the appellant's application for an order of prohibition. The facts are as follows:

The appellant is a holding company and has a number, of subsidiaries within the appellant's group. Amongst the subsidiaries which are relevant to this case are Industrial and Agricultural Distribution Sdn. Bhd. (IAD) and Motor Association Sdn. Bhd. (MA).

The respondent, one Mr. R.B. Gray, was offered employment by the appellant on 23 February 1977 as Director of IAD and MA on the appellant's terms and conditions of service applicable to its expatriate staff. The respondent accepted the offer on 28 February 1977 and entered upon the employment on 16 March 1977. The necessary resolutions to make him director of IAD and MA were passed on 23 May 1977 with immediate effect and to complete the formality on the same date the respondent himself signed a consent to act as director. His contract of employment with the appellant was finally signed on 25 June 1977.

For a start everything went well between the parties. Later because of poor performance of IAD, the appellant decided to terminate the respondent's service and remove him from directorship and replace him with one Mr. J.J. Cregan. A letter terminating his service dated 3 December 1979 purporting to be written under paragraph 10 of the contract of employment was sent to him. This letter required him to hand over duties to Mr. Cregan and to complete the handing over by 5 January 1980. In accordance with para. 10 of the contract of employment, the respondent was given six months' salary in lieu of notice. On 2 January 1980 IAD passed a resolution that the respondent be requested to vacate his office by 7 January 1980 and Mr. Cregan be appointed Managing Director with immediate effect.

Aggrieved by the termination, the respondent wrote a letter dated 8 January 1980 to the Director-General of Industrial Relations requesting that officer to take the necessary action under s. 20 of the Industrial Relations Act 1967(IRA) with a view to reinstatement on the ground that being a workman he was dismissed without just cause or excuse. Subsequently the complaint was referred by the Minister to the Industrial Court.

At the outset of the proceeding before the Industrial Court, the appellant raised a jurisdictional objection as a preliminary issue in that the respondent, being employed as a director, was not a workman within the meaning of the Act. The objection was over-ruled by the Court which made the ruling on 26 August 1981 whereupon the appellant applied to the Court to have the question referred to the s. 33A of the Act. On 31 May 1981 the Industrial Court refused the respondent's application for a reference to the High Court because the ruling it made on 26 August 1981 was not a complete award; it being only a ruling on preliminary objection.

Meanwhile, on 24 November 1981 the appellant applied to the High Court for leave to commence proceedings for an order of prohibition and certiorari to stop further proceedings in the Industrial Court and to quash the ruling it already made. Leave was granted on 30 July 1982 and the motion for certiorari and prohibition was heard on 21 March 1983. Finally, on 27 January 1984 Wan Hamzah J (as he then was) in a reserved judgment refused the appellant's application. Hence this appeal.

The appeal is confined to the learned Judge's decision on his refusal to issue an order of prohibition only; appellant having accepted the learned Judge's decision on certiorari in that it could not lie because the application was made outside the time limit, i.e. more than six months after the Industrial Court made its first ruling on 26 August 1981.

There are, however, two issues in this appeal. The first is whether the respondent is a workman within the meaning of IRA and the second is whether an erroneous decision of the Industrial Court on that issue is an error which affects the