JUDGMENT

KC Vohrah J:

Decision

I am allowing the application for an order of certiorari to issue to quash Industrial Court Asian Ceramic Sdn Bhd v. Dharmaraja [1997] 3 ILR 1091 dated 24 December 1997. The matter is remitted to the Industrial Court to be heard by another chairman.

I rest my decision principally on the ground that the chairman of the Industrial Court had misconstrued and in fact wrongly applied s. 15(2) of the Employment Act 1955 in arriving at the decision that the claimant had breached his contract of employment with the company, the respondent in this matter.

It is appropriate to set out the letter dated 28 May 1994 sent by the company to the claimant. What is to be noted is that there was a meeting held by COW1 with the claimant and a few other kiln operators. This was on 27 May 1994. The meeting resulted in the claimant leaving the meeting and then leaving the factory premises. The claimant returned to work on 30 May 1994 at 3 pm but was not allowed entry into the factory.

I go back to the letter that was issued on 28 May 1994 just one day after the claimant left the premises which reads as follows:

ASIAN CERAMIC SDN. BHD 25, JALAN PERUSAHAAN 2, KAWASAN PERUSAHAAN BERANANG 43700 BERANANG, SELANGOR DARUL EHSAN, MALAYSIA TEL: 03-8167615, 8167652 FAX: 03-9167650

28 May 1994 Dharmaraja @ Abdul Malik a/l Abdul Wahab C5-10 Tingkat 5, Jalan Asa 9 Taman Asa Jaya 43000 Kajang Selangor Darul Ehsan

Dear Sir,

In the last 4 weeks or so, I have had at least 6 meetings with you together Mr. Abul and Mr. Bala to discuss about the operation of Shuttle Ki, which of late seemed to be inconsistent as far as temperature control was concerned, thereby adversely affect the quality of the fired ovenware.

In the last one week, ie, for the period 19 May to 25 May 1994, at least 4 cars of ovenwares from the Shuttle Ki were substantially damaged due to poor firing control and too high temperature.

On the morning of 27 May 1994, I called for a meeting in which you, Abul, Bala and 4 kiln operators were present. I had explained to all concerned that from the buller rings which we put into the furnace, the temperatures in the furnace had sometimes reached 1300 degrees centigrade. The maximum firing temperature should be only 1200 degrees centigrade. No wonder we were getting distortions of ovenwares like before. I had also, pointed out that the Company had suffered a loss of about $4000 in the last one week. It has also been ascertained that the 2nd shift workers had been sleeping regularly. For example, on 23 May, 3 out 4 workers were sleeping from 0230 hours to 0500 hours.

After the meeting which ended at about 10.30 am. I was informed that you had left the factory together with all the 5 kiln operators without informing anybody. You had also threatened the Guard on duty. By your action, you had deliberately trying to sabotage the operation of the factory.

Under the above circumstances, it is deemed that you had dismissed yourself from the service with the Company according to the labour laws. With immediate effect you are being declared as 'persona non grata' to this factory. This means that you not permitted to enter the factory at all. Also, according to the labour laws, you should pay back one month salary to the company since you just walked out from your job without giving any notice. Therefore your salary for the month of May 1994 will be retained by the Company.

Yours sincerely,

Sgd. xxx (emphasis added)

In the context of this letter it is relevant to point out that in reply to the statement of claim of the claimant that his dismissal was without just cause or excuse and effected in violation of the principles of natural justice and that it was tainted with mala fides, the company denied dismissing the claimant and stated that the claimant by walking out without the approval of the company or without good reason had by "his own conduct" terminated his employment. Further it was stated that he had absented himself a