JUDGMENT

Low Hop Bing JCA:

Appeals

[1] These two related appeals viz CA No. P-01-69-01 and P-01-70-01 are lodged by the appellants, a firm of solicitors, ("the firm") against the decision of the Penang High Court in dismissing the firm's application for an order of certiorari to quash the award of the Industrial Court relating to the issue of dismissal without just cause or excuse ("the dismissal award").

Factual Background

[2] The employees commenced employment with the firm's branch in Penang, as legal assistants, drawing a starting salary of RM2,000 per month, on 8 December 1989 and 1 June 1990, respectively.

[3] The employees' duties and responsibilities were primarily in connection with road accident cases and included:

(1) Receiving instructions from clients and applying for all necessary documentation from authorities, securing medical and specialist reports;

(2) Interviewing all relevant persons in connection with the clients' claims;

(3) Corresponding with opposing solicitors and agreeing upon documents;

(4) Attending on clients to agree upon defences or further conduct of the action;

(5) Obtaining instructions from clients for negotiations or further conduct of the actions;

(6) Attending court to litigate the cases up to judgment, updating clients and advising them of the outcome of the trial and merits of appeal; and

(7) Preparing memoranda of appeals, arguing appeals and notifying clients of the outcome.

[4] Sometime in early April 1997, Dato' VP Nathan, the firm's principal partner in Kuala Lumpur, was instructed by Kurnia Insurance Bhd ("Kurnia"), one of the firm's main clients, that Kurnia did not want the employees to handle Kurnia's files.

[5] Dato' Nathan conveyed Kurnia's instructions to the managing partner of the firm's branch in Penang, Mr. Paul Manecksha, who then verbally informed the employees of the same.

[6] However, the employees were allowed to continue to attend to the Kurnia as well as non-Kurnia files. When Kurnia discovered that the firm had failed to comply with their instructions, Kurnia was annoyed.

[7] Kurnia repeated the instructions to Dato' Nathan to preclude the employees from handling the Kurnia files. Again Dato' Nathan conveyed the instructions to Mr. Manecksha.

[8] On 14 April 1997, Mr. Manecksha had a meeting with the employees and informed them that Kurnia had insisted on precluding them from handling the Kurnia files. In the course of discussion, the employees enquired about their prospects in the firm. Mr. Manecksha informed them that it would affect them in terms of their future increments and bonuses, with dim prospects of partnership, unless Kurnia reconsidered its decision. The employees said that if that was the situation, they might as well leave the firm and seek employment elsewhere. Mr. Manecksha informed the employees that they need not leave immediately as they would have to provide the firm with three months' notice of resignation, and suggested that they could leave on 31 July 1997 to which the employees agreed.

[9] The firm received the employees' letters, which were identical in content, dated 31 July 1997 and captioned "REQUEST FOR RESIGNATION", with immediate effect. Mr. Manecksha replied vide two letters, both dated 5 August 1997,confirming that the employees had "agreed to resign by 31 July 1997" (see pp. 183 to 186 of the appeal record).

[10] However, the employees made their claim for reinstatement under s. 20 of the Industrial Relations Act 1967. The claims were referred to the Industrial Court which ruled that the employees were dismissed without just cause or excuse, and awarded backwages to the employees.

[11] The firm then filed an application for judicial review, to quash the entire award of the Industrial Court.

[12] The High Court affirmed the dismissal award ("the dismissal decision"), but held that the Industrial Court had committed jurisdictional error in failing to take into account post-dismissal earnings and accordingly qua