Malayan Law Journal Articles/2002/Volume 1/the Industrial Relations Act 1967: A Review From The Workers' Perspective [2002]

1 MLJ i Malayan Law Journal Articles 2002

the Industrial Relations Act 1967: A Review From The Workers' Perspective
Prof V Anantaraman MA, PhD (Wisconsin) Cert lTP (Harvard) Specialist in Industrial Relations, Faculty of Management, Multimedia University, Cyberjaya Malaysia This review of selected domains of the Industrial Relations Act 1967 is meant to provoke discussion on the needed revision of some of its provisions from the workers' point of view. In some of these domains we have binding judicial precedents governing industrial relations practice which could be translated into statutory provisions of the Act to give them the stamp of approval by the national parliament as the representative of the people. The other domains requiring revision have been particularly chosen to project the much needed revision of the Act from the workers' perspective. Procedural rectitude in dismissals Procedural fairness in dismissals is an important domain of the Industrial Relations Act 1967 calling for reform. The value-laden word 'reform' is deliberately used since this area cries out for a change to ensure social justice to the workmen. The concept of procedural fairness has many dimensions. In one way or another, it is concerned with the workman knowing the reasons for his dismissal. It includes the need for the employer to give reasons regardless of whether the dismissal is a regular one or a termination simpliciter. It also includes the need for the employee knowing the reason through the employer framing the charges against him and asking him to show cause why disciplinary action should not be taken against him. Furthermore, if the employer is required to inform the employee of the reasons for his dismissal at the time of his dismissal, it would preclude the employer from relying on reasons other than those known to him at the time of the dismissal to justify the dismissal during the hearing in the Industrial Court at a later date. A progressive employer caring for constructive employee relations would not hesitate to give reasons for even termination simpliciter. The importance of giving reasons in the case of termination simpliciter has been well documented by the decisions of the Industrial Courts which asserted that 'termination simpliciter by contractual notice and for no reason is victimization and unfair labour practice'1 This is because under the industrial law, the doctrine of absolute freedom of contract yields to the higher claims of social justice which is not based on contractual relations and is not to be enforced on the principle of contract of service. It is something outside these principles and is invoked to do justice without a contract to back it.2 In other cases of dismissal due to misconduct, a progressive employer in conducting a reasonable investigation of a workman's misconduct prior to his dismissal not only makes known to him the reasons for his dismissal but also affords him a reasonable opportunity of being heard in his own defence.3 Employers who do not belong to this breed would not be inclined to give reasons to the employee for his dismissal but would postpone meeting this reasonable requirement by exploiting the law to their advantage. As the Industrial Court in Diana observed:
these procedural defects, as also in cases of non-provision of a domestic inquiry or a defective inquiry...are not in themselves fatal - it is now settled law that these shortcomings in relation to natural justice are rectified and augmented by the

provision of a full trial, in which the issues are opened up all over again, in the Industrial Court proceedings, and thenceforth up to the exhaustion of the proceedings at all levels of the appellate stages.

This consequence of the 'curable principle' upheld by the Federal Court in Hong Leong Assurance 4 runs counter to the ruling of the House of Lords in Atkins,5 which held that ' the employer was not entitled to rely on evidence acquired after dismissal and fairness must be judged in the light of facts known to the employer at the time of dismissal'. Nearer home, the ruling of the Chief Justice, Raja Azlan Shah in Goon Kwee Phoy 6 sought to protect the employee against any possible abuse in this respect : ' if the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to inquire whether that excuse or reason has or has not been made out... The proper inquiry of that Court is the reason advanced by it and that Court or the High Court cannot go into another reason not relied on by the employer or find one for it'.7 One is inclined to assume that even those employers who evade giving reasons before dismissing workmen cannot avoid including them in the pleadings contained in the written statement of the case given to the Registrar of the Industrial Court. However, Diana illuminates the ingenious way by which an employer (in this case a legal firm) could manipulate the pleadings to his advantage. The purpose of the pleadings is to define the issues in action in order to clarify them and to narrow the area of conflict. In this case since the employer knew that under the law 8 he is bound by his pleadings stated that the reasons for the termination of service of its legal assistant were: 'on the grounds of failure to adhere to instructions, coming to work late habitually, absence from work without valid reasons, misrepresentations to the company, dishonesty to the company, breach of fidelity and good faith and failure to exercise the degree of care reasonably expected of a person of the claimant's skill, knowledge and competence, and also poor performance generally'.9 The comment of the Industrial Court on this statement of the case is significant: 'it became apparent during the course of the proceedings that the company, having deliberately abstained from giving their actual reasons in the termination letter (not only no reasons were given for the termination but when the employee requested the reasons, the company refused to give her the reasons for termination) chose to couch their pleadings in those general and widest terms possible, so that as the case progressed, the company felt at liberty to put forth any number of witnesses to produce any amount of evidence from stage to stage to try and justify their dismissal.10 The Industrial Court was commended by the High Court for giving thorough consideration of all the allegations and stating convincing reasons in arriving at its conclusion that the dismissal of the legal assistant by the legal firm was without just cause or excuse. In the 'dispute-triangle' involving three legal minds, the Court won the kudos.11 Ambit of ministerial discretion The final dimension of procedural fairness arises during the exercise of discretion by the minister not to refer the representation of the workman under s 20(3) of the Act. The Supreme Court in Sanjiv Oberoi 12 clearly held that the minister is neither under any statutory duty to give reasons nor can he be directed or compelled to give reasons when the exercise of his discretion is challenged. However, the Court of Appeal in Hong Leong Equipment,13 equating the fundamental right to life guaranteed in the Federal Constitution of Malaysia to right to livelihood, decreed that the minister should give reasons when he exercises his discretion under s 20(3) of the Act. Furthermore, in underscoring the importance of this aspect of procedural fairness, the Court of Appeal stressed that the considerations of feasibility, public interest or national security did not apply to exclude procedural fairness in cases where a fundamental right conferred by the Federal Constitution is involved. Given this dicta of the Court of Appeal which the Government did not challenge there is no need to justify the suggestion that this should be translated into a statutory provision under the Industrial Relations Act. It is pertinent to point out that under the Indian Industrial Disputes Act 1947 the minister is subject to such a statutory duty.14 Pre-dismissal inquiry The current status of pre-dismissal inquiry under the law leaves much to be desired from the workman's perspective. In tracing the history of procedural fairness in dismissal cases in Malaysia, it has to be admitted that the Industrial Relations Act 1967 is silent on this issue. Following the Privy Council ruling in Surindra Singh Kanda 15 on the right to be heard before dismissal by the public sector employee, the Industrial Court in 1969 devised its own rule to introduce the same right to employees in the private sector: 'the employee should be

adequately informed of the accusations made against him and should be given a fair opportunity to correct or contradict them.'16 Though the Industrial Court in Malaysia has held that the elaborate Indian procedure is no guidance on holding a domestic inquiry in Malaysia, its decisions have failed to show any real consensus on the detailed form and content of what they called a 'reasonable investigation' before dismissing a workman. However in course of time the Courts seemed to have come to expect 'reasonable investigation' only in a loose sense of the term. This loose standard of affording a reasonable opportunity to the accused of being heard in his own defence amounted to no more than what may be considered the 'preliminary investigation' in the Indian disciplinary procedure without the hearing that necessarily follows when the explanation given by the employee to the show cause notice is not satisfactory.17 Even when this loose standard was not followed by the employer, the Industrial Court instead of setting aside the dismissal for procedural impropriety went into the merits of the case to decide whether the dismissal was for a good cause or excuse. Nevertheless, when the employers were indiscriminately dismissing workmen without pre-dismissal inquiry during the recessional years of 1980s, the Industrial Court. found in 'modifying the relation back doctrine'an effective means to punish recalcitrant employers. It is well known that the Supreme Court in Dreamland Corporation18 nullified the application of modified relation back doctrine upholding the 'curable principle' based on the ruling of the Indian Supreme Court in Motipur Sugar Factory 19 and British Labour Pump.20 Furthermore, the Federal Court in Wong Yuen Hock 21 in endorsing the curable principle that the failure by the employer to hold a pre-dismissal inquiry could be cured by the Industrial Court hearing subsequently, went beyond the Dreamland ruling in that the curable principle will apply not only to cases coming within the scope of s 20 of the Industrial Relations Act 1967, but also to cases falling within the meaning of s 14 (1) of the Employment Act 1955. Besides since the Federal Court viewed the minister's reference as a hearing de novo by an independent statutory tribunal, it followed that the breach of an employer's obligation to hold a domestic inquiry under a collective agreement or under the terms of the employment contract may also be curable by the Industrial Court hearing.22 Despite the dismal outlook for procedural rectitude in dismissal proceedings under the Malaysian law, Edgar Joseph Jr FJ in Said Dharmalingam 23 acknowledged the view of this author to the effect that 'the decisions of the apex courts both in Dreamland and Hong Leong Assurance notwithstanding -- it may not be far wrong to conclude that the case law governing procedural rectitude in dismissal for misconduct is in a state of flux in Malaysia. Industrial law as it stands today in Malaysia hardly provides any safeguard against procedural unfairness on the part of the employer before dismissing any employee'.24 In this context, it is heartening to note that Edgar Joseph Jr FJ made it clear that 'when, as here, a claimant is an employee within the meaning of the Act, he has - by s 14(1) thereof, a statutory right to 'due inquiry' by his employer, and so, the approach of the Industrial Court - or, for that matter, the High Court - in considering the question whether the claimant had been dismissed without just cause or excuse would be to examine the decision not just for substance but for process as well'.25 Though the above-quoted dicta in Said Dharmalingam may be viewed as an obiter,26 it is such a persuasive obiter as to form the basis for a binding precedent in the future to resurrect procedural fairness not only for workers coming under s 14(1) of the Employment Act 1955 but also under s 20(1) of the Industrial Relations Act 1967. The tenor of his verdict is definitely inclined towards this end.27 This should be possible in view of the House of Lords in Polkey 28 unceremoniously over-ruling the British Labour Pump principle (curable principle) and Lord Mackay asserting that 'it is not correct in law to draw a distinction between the reason for dismissal and the manner of dismissal as if they were mutually exclusive with the industrial tribunal limited only to considering the reasons for dismissal'.29 The forgoing argument favours construction of s 20(1) of the Act in the desired direction. All that is required of our Industrial Court is the courage to take into account clause 42 of the Code of Conduct for Industrial Harmony and enforce 'due process' under the powers bestowed on it by s 30(5A) of the Industrial Relations Act. Alternatively as it will be suggested later in this article, s 20 could be amended to include this requirement of procedural rectitude. Having argued the case for the workers knowing the reasons for their dismissal at one stage or another of the dismissal proceedings we now subject the law on unfair dismissal to further scrutiny. It is a well-known fact that this s (20) of the Act somehow lent itself to be frequently interpreted to accommodate within its ambit several facets of dismissal proceedings in industrial relations. For example, our Superior Courts, through statutory construction of this s 20 of the Act, were able to confer on the Industrial Court the power to order payment of compensation in lieu of reinstatement when such a power was no where to be found within the four corners of the Act. The Superior Courts were also able to accommodate the concept of constructive dismissal within the meaning of dismissal in this section and to require the minister to give reasons for exercising his discretion un-

der this section to refer or not to refer the workman's representation for reinstatement to the Industrial Court. The ambit of ministerial discretion has been already dealt with in the last section; the focus of the following section is therefore, on two topics: relief for unfair dismissal and constructive dismissal. Relief for unfair dismissal Section 17(a), the predecessor to s 20 of the Act, empowered the Industrial Court by way of relief for unfair dismissal to order either reinstatement or payment of compensation in lieu thereof. When section 17(a) was repealed and replaced by s 20 of the Act the only remedy provided for under this section was reinstatement, not payment of compensation. Nevertheless it is quite intriguing that while Parliament repealed s 17(a) in 1980 deliberately removing the alternative remedy of compensation from the statute, the dicta of the Federal Court in Dr Dutt 30 hardly a year after 1980 should run counter to it! Be that as it may, should we restore by statutory amendment to s 20 the two types of remedy for unfair dismissal or allow the binding judicial precedent rule the roost as it is. If we opt for the latter choice, really, reinstatement will become a lost remedy, if it is not one already.31 On the other hand, the author's suggestion is not merely to translate the judicial precedent into a statute but with regulations under s 62 of the Act to govern payment of compensation according to equity, good conscience and substantial merits of the case.32 According to CP Mills, the Industrial Tribunals in general are too easily taken in by the pleas of employers' inability to reinstate the unfairly dismissed employees. In other words, they are too easily convinced by the employers' argument that harmonious relations cannot be restored. It could be argued that when a workman is unfairly dismissed, the employer is obligated to reinstate the worker and should not plead inability on grounds of hostile atmosphere, as he was partly responsible for creating it.33 In a labour surplus economy like India, dismissal entailing the loss of livelihood in the context of the absence of alternative job opportunities, is rightly regarded as industrial capital punishment. While employers in India contend that they should not be forced to take back a dismissed employee and argue that they should have the option to pay compensation instead, the workmen urge that in a labour surplus economy they should not be placed in a position where the right to work can be bought off by the employer through compensation. No wonder the trade unions in India fight for the workers' right to retain work. Payment of compensation In Malaysia, among the dismissal cases decided by the Industrial Court, reinstatement has been ordered in only a few cases compared to compensation in lieu of reinstatement. For example, in 1992, 17 awards were made for reinstatement with backwages compared to 145 awards for compensation in lieu of reinstatement. While in 1993, 13 awards were made for reinstatement with wages compared to 182 awards for compensation in lieu of reinstatement. Similarly, in 1994 reinstatement with backwages were made in only 12 awards unlike compensation in lieu of reinstatement which was ordered in 288 awards. Again in 1995, 13 awards where reinstatement with backwages was ordered and 300 awards of compensation were made.34 Finally, available figures on these two dimensions of relief for the years 1996, 1997 and 1998 are respectively, 22,225; 34,308; and 41,246. Until recently, in the context of full employment and abundance of alternative job opportunities in Malaysia, it was hardly surprising that there was not even a demur from the trade unions, the guardian angels of workers interests, to the colourable exercise of power by the Industrial Courts in making reinstatement more or less a lost remedy. The solution to this sorry state of affairs is not to deny the employers the alternative remedy of payment of compensation for unfair dismissal but to make the compensation package substantial so that the alternative remedy would cease to be attractive to employers. Currently, in Malaysia the Industrial Court seems to consider it proper to assess the compensation payment as in the case of ordinary retrenchment and to order payment at the rate of one month's salary for each completed year of service. It is a well-known fact that it is improper to limit the compensation payment in lieu of reinstatement to the compensation payable in the case of lawful retrenchment because dismissal cannot be equated with lawful retrenchment.35 Therefore, to restore equity and justice to the unfairly dismissed worker it is suggested that the Federal Court dicta on payment of compensation in lieu of reinstatement should be translated into a statutory provision and the Ministry should formulate regulations to govern the determination of the quantum of compensation by the Industrial Court bearing in mind that a relatively small compensation payment is no real incentive for the employer to improve future relations with his workmen. It is further suggested that these regulations could contain concrete guidelines incorporating at least some of the criteria spelt out by the Cey-

lonese Supreme Court for payment of compensation in lieu of reinstatement:

In quantifying compensation payment account should be taken of such circumstances as the nature of the employer's business, and his capacity to pay, the employee's age, the nature of his employment, length of service, seniority, present salary, future prospects, opportunity for obtaining similar alternative employment, his past conduct, the circumstances and manner of the dismissal including the nature of the charge levelled against the workman, the extent to which the employer's actions were blameworthy and the effect of the dismissal on future pension and any other relevant considerations.36

Payment of backwages Reinstatement is the statutory remedy for unfair dismissal; while payment of backwages is ancillary to reinstatement, its quantum was determined, for a long time by the predilections of the presiding officers of the Industrial Courts, governed, as they were, by common law traditions. The normal rule is that an employee unjustly dismissed, upon reinstatement , is entitled to all back pay, allowances and benefits from the date of his dismissal to the date of the Industrial Court award. However, the prima facie right of the workman to recover wages lost since the time of his dismissal has been curtailed by the Industrial Courts'ruling based on the common law principles of mitigation as under: (a) deduction of his actual earnings on his alternative job if he has found one after dismissal; (b) if he has neglected to obtain another employment in the interim period, remission of an amount equivalent to his earnings on his job before dismissal; (c) if his conduct before dismissal was not altogether blameless and so some disciplinary action short of outright dismissal was merited, some remission, say 40% is given on account this contributory cause; (d) the employer, not the employee will get some remission of the amount if he shows that there has been substantial delay in reaching finality, a delay for which he is not held responsible; (e) remission when the employer succeeds in showing that payment of the full amount will impose financial strain on his business; (f) and on the top of it all, limiting the arrears of backwages to a maximum period of 24 months.37 It should be further noted that all these remissions were given on this 24 months' wages even if the worker's eligibility would have been much more than two years since the date of his dismissal. The mitigation rule, obviously, operated harshly against the employee and gave an unfair advantage to the employer who had unfairly dismissed him in the first place. From the workers' point of view, one wonders whether the Industrial Courts in awarding these remissions in the quantum of backwages (limited to 24 months) were aware of s 30(5) of the Act under which it is mandatory for them 'to act according to equity and good conscience. ......' 38 Forgetting that the aim of the industrial law is to minimize the harshness of the common law governing employer-employee relations, the Industrial Courts might have continued to traverse unfettered on this unjust path but for the High Court ruling in Taylor's College 39 that the doctrine of mitigation of damages does not apply in industrial law cases. However, this ruling of the High Court does not appear to have removed the discretion of the Industrial Court to grant compensation on the principle of equity and good conscience where a workman has found suitable employment. For example, in Kama Morris,40 the Industrial Court gave a deduction of 30 per cent from the amount of backwages; it should be noted that it still followed the rule of awarding backwages for a maximum of 24 months, and the 30 per cent discount was on that amount. It is indeed a sad commentary on the warped sense of social justice governing the decision-making process of our Industrial Courts; when the period between the workman's date of dismissal and the date of the Industrial Court award exceeds two years (some times it is three to four years), to deny the workman backwages beyond two years and discounting 30 to 40 per cent out of this limited amount by way of this 'new form of mitigation' on the ground of equity and good conscience seems indefensible under s 30(5) of the act. This is particularly so when we come to know that this limit of 24 months entitlement by way of backwages has no rational basis except that there was a sort of precedent in the Industrial Court decision in Casuarina Beach Hotel in 198141 which disclosed that the basis of the 'usual compensation' where reinstatement is not awarded is to limit the arrears of wages granted to a maximum of 24 months in respect of the period between the dismissal and the last day of hearing. It is indeed remarkable that our Federal Court in R. Ramachandran 42 and the Court of Appeal in Harris Solid State 43 had to resort to extending their review jurisdiction 44 to expose our Industrial Courts' way of dispensing social justice to the unfairly dismissed employee. In unmistakable terms they made it clear that reinstatement is to restore to the workman his former position and status as if he has not been dismissed, and payment of compensation in lieu of reinstatement is intended to compensate the dismissed workman for the loss of future earn-

ings on the job from which he has been dismissed. Therefore, in the author's view limiting the payment of backwages to a maximum of 24 months and equating dismissal with retrenchment for payment of compensation in lieu of reinstatement should be dispensed with in the suggested regulations governing the statutory provision on unfair dismissal. In formulating the regulations under this law, the Ministry would be well advised to draw a principle or two from the rulings of these two apex courts to regulate reinstatement and guide payment of compensation in lieu to ensure social justice to the workmen.45 It may be of interest to note that unlike the practice of the Industrial Court to limit backwages to a maximum of a period of 24 months, the Federal Court in Ramachandran ordered backwages for a period of 88 months. Secondly, it has never been a norm on the part of the Industrial Court to order loss of future earnings. Where no reinstatement is ordered, the practice of the Industrial Court is to order compensation in lieu of reinstatement, calculated generally at one month's salary for each year of service. In Ramachandran, by ordering loss of future earnings for a period of 39 months until the employee reached the age of 55, the Federal Court was definitely going against the accepted practice of the Industrial Court.46 It is illuminating to know the rationale behind the Court of Appeal's decision to order reinstatement of all the 21 workmen 47 in Harris Solid State six years after their dismissal by the employer. The court said 'we have before us a case of an employer who has chosen to dismiss his workmen purely because of their trade union activities. There can, in our judgment, be no clearer case of victimization and unfair labour practice... In the circumstances of the case we do not consider that compensation is the proper remedy. For, otherwise, employers will be encouraged to terminate the services of their unionized workmen, confident in the expectation that all they have to face is an award of compensation -- a small price to pay for being rid of trade unionists. The remedy of reinstatement is, therefore, the only just and proper remedy that is appropriate to meet the facts and circumstances of the present case.' Constructive dismissal The development of the law governing constructive dismissal in Malaysia both the actual and suggested makes interesting reading.48 Section 20 of the Industrial Relations Act 1967 is silent on constructive dismissal. In fact, while the Industrial Court in Cathy Organization 49 held that Wong Chee Hong was constructively dismissed, Justice Harun who heard the same case in High Court quashed the Industrial Court award on the ground that 'constructive dismissal was not within the ambit of s 20(1) of the Industrial Relations Act 1967'.50 When the same case went to the Supreme Court, Salleh Abas LP overruling the High Court decision, clearly established the law governing constructive dismissal.51 Based on the notion that any gap in industrial law can be filled by common law, the Supreme Court accommodated constructive dismissal under s 20(l) of the Act through interpreting the word 'dismissal' (dismissed actually) in this section with reference to the common law principle.52 To quote Salleh Abas LP, 'the common law has always recognized the right of the employee to terminate his contract of service and therefore to consider himself as discharged from further obligations, if the employer is guilty of such breach as affects the foundation of the contract or if the employer has evinced or shown an intention not to be bound by it any longer.53 While constructive dismissal is summary termination of the contract of employment, not by the employer, but by the employee by reason of the employer's conduct, it had to be decided whether the employer's conduct entitling the employee to repudiate the contract should be determined by the contract test or the test of unreasonableness. Since it was common law interpretation of the word 'dismissal' that brought the concept of constructive dismissal within the coverage of s 20(1) of the Act, Salleh Abas LP had no other option but to adopt the contract test to determine constructive dismissal: common law would not countenance anything other than the contract test. The criteria to determine constructive dismissal included (a) the actual and the anticipatory breaches of the express terms of the contract of employment by the employer and (b) the requirement that the employee's response to this employer's conduct must be within a reasonable time.54 While the aforementioned criteria was adapted from Lord Denning's principles postulated in Western Excavating 55 the principle advocated by Lord Browne-Wilkinson J in Wood 56 led the Malaysian courts to approve of including the implied term of contract, a breach of which by the employer constituted a solid ground for constructive dismissal. This implied term of the contract of employment requires the employer:
...Not to conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee...it is to be emphasized that this implied term is an overriding obligation, independent of, and in addition to, the literal terms of the contract.57 The contract test, instead of the more generous unreasonable test, restricts the scope for constructive dismissal claims. This is in spite of the liberal guideline added to the contract test by the Court of Appeal in the Lewis case.58 This guideline stated that 'although a single act by the employer may

not tantamount to a fundamental breach, a series of acts which by themselves may not be fundamental breaches can tantamount to a fundamental breach if looked at it cumulatively.'

However, the severity of the restrictive contract test has been considerably reduced in Malaysia when in the early nineties the Industrial Court adopted Wood's test of implied contractual dismissal to determine constructive dismissal. It is of interest to underscore that Lord Browne-Wilkinson in Wood also added a liberal guideline (similar to the one added to the contract test by the Court of Appeal in Lewis) when he held that 'furthermore, the breach of the implied obligation trust and confidence may consist of a series of acts or incidents, some of them quite trivial, which cumulatively amount to repudiatory conduct by the employer'. In view of the adoption of Wood's test but with its liberal guideline, one may safely conclude that the test of unreasonableness is not altogether eschewed in determining constructive dismissal in Malaysia. Though the test of unreasonableness has been objected to by our courts, any unreasonable conduct of the employer, in so far as it is within the ambit of his implied contractual obligation (as decided by the Industrial Courts from case to case), would be upheld as grounds for constructive dismissal. For example, it is now possible to include sexual harassment by the employer as a conduct justifying employee repudiating the contract, even if no breach of contract would have been involved.59 Discussion on the development of the law concerning constructive dismissal will not be complete till we consider Gopal Sri Ram's (JCA) argument that the concept and claims of constructive dismissal could be accommodated within the meaning of s 20(1) of the Industrial Relations Act 1967 without there being any need to rely on the common law interpretation of the word 'dismissal' for this purpose. The way he defined constructive dismissal makes it possible: constructive dismissal describes a situation 'where there is no formal dismissal, but there is conduct on the part of an employer which makes a workman 'consider that he has been dismissed' without just cause or excuse'.60 To elaborate, 'a workman may treat some conduct on the part of the employer towards him which falls short of actual dismissal or termination as amounting to a dismissal.' The workman may consider his demotion or transfer (or non-payment of salary) as being the same as dismissal. Thus, although there has been no formal dismissal or termination, the workman may have recourse to s 20(1) of the Act. The significance of this approach to constructive dismissal is far reaching. Most importantly, the Industrial Court need not be applying the contract test of the common law, express or implied, but only the test of unfair dismissal. Secondly, the time constraint in making representations is liberalized; no more he will be required to make up his mind and act at the appropriate point in time after the conduct of which he had complained, had taken place. Now the workman can make his representations for reinstatement within 60 days of his deemed dismissal, the time limit stipulated under s 20(1A) of the Act. This approach advocated by Gopal Sri Ram in Anwar Abd Rahim 61 however, was not favoured by the Federal Court which is yet to give its written judgment after its oral judgment on 18 May 1999. In the absence of the written judgment we are not in a position to find out the reasons for the Federal Court preferring the contract test.62 As the author had argued in his article on this subject in the Malayan Law Journal 63 instead of vainly attempting to find a way to accommodate constructive dismissal under s 20(1), we should opt for a new provision very similar to s 55(2)(c) of the UK Employment Protection (Consolidation) Act 1978 64 under which our Industrial Courts would apply the broadly defined contract test, including conduct of the employer that breaches either the express terms of the contract or the implied terms of the contract or both. This will also make the irksome two stage process of deciding constructive dismissal redundant. Under the current dispensation, since representation for reinstatement is made under s 20(1), the court should decide first whether there was constructive dismissal and then proceed to determine whether or not the employer had just cause or excuse for bringing about the constructive dismissal. While the burden of proof is on the employee to establish that he had been constructively dismissed, the onus of proving that it was with good cause or excuse squarely lies on the employer. With the suggested inclusion of the new statutory provision along English law, the burden of proving constructive dismissal becomes the exclusive responsibility of the employee. In most cases it may not be difficult but in cases like sexual harassment, it may turn out to be a Herculean task.65 In such cases, it is suggested that regulations under this statutory provision follow the Singapore law governing the burden of proof when the employee alleges victimization.66 The Singapore law sought to distribute the burden between the two parties without seriously jeopardizing the interest of either party. When you adopt this law the employee who alleges sex-

ual harassment need only prove the facts and circumstances of the offence, leaving the employer the onus of proof that the reason for his action was not sexual harassment. In conclusion, it may be said that our law governing unfair dismissal has a number of serious gaps which our apex courts sought to fill through the judicial process of statutory interpretation and construction. These include (a) the absence of a provision to cover payment of compensation in lieu of reinstatement as a statutory remedy for unjust dismissal; (b) the absence of a provision to make it mandatory for the employer to conduct a pre dismissal inquiry before dismissing a workman; (c) and the absence of a definitive provision to cover constructive dismissal. With the suggested revision of the statutory provisions governing unfair dismissals and regulations to supplement them our Industrial Courts will be well poised to ensure industrial harmony and to render social justice to workers with equity and good conscience. In the article titled 'Revisionism of the Restructured Judiciary', the author 67 dealt with in good humour the urge on the part of the reviewing courts of our restructured judiciary to revise some of the landmark decisions of the earlier Supreme Court. Maybe it is worthwhile to consider the feasibility or desirability of translating one or two of these judicial decisions into statutory law under the Industrial Relations Act 1967. The reference here is firstly made to the judicial decision on who is a workman within the meaning of the Act and secondly is on raising a preliminary objection to the jurisdiction of the Industrial Court. Who is a workman? Section 2 of the Industrial Relations Act 1967 defined a workman as 'any person...employed by an employer under a contract of employment'. Since it is obviously untenable to consider every person under a contract of employment as a workman, the Industrial Court declared a claimant a workman under the Act, if there existed a contract of employment, written or oral, between him and his employer, and the terms and conditions of this contract of employment revealed that he was on 'contract of service', not 'a contract for services'. Of course, the Industrial Court relied on the 'control test' to arrive at the decision. In Dr Dutt v Assunta Hospital 68 the Federal Court confirmed this interpretation of the Industrial Court. However, when the Industrial Court in Inchcape 69 held that RB Gray who was employed by Inchcape as the Executive Director of its subsidiary was a workman, it became unacceptable to Lord President Salleh Abas of the Supreme Court when the case went on appeal to it. The Supreme Court objected to the contract of service test to determine who is a workman because it ran counter to the dicta of Fletcher Moulton in Simmons v Health Laundry Company: 'It is true that as a matter of law it is not every contract of service that constitutes a person as a workman under the Act.'70 The Supreme Court relied on the statutory definition of the contract of employment to limit the scope of the statutory definition of 'workman' to 'workman' only, since the statutory definition of contract of employment stipulated that it is an agreement between the employer who must agree to employ a person as a workman and the person who also must agree to serve his employer as a workman. Though this definition was not of any help to anyone to discover who is a workman under the Act, the Supreme Court made it clear that the capacity of the claimant under s 20(1) must be that of a workman. The Supreme Court therefore, came out with its own test to determine who is a workman, given the contract of employment between him and his employer. The Supreme Court required the Industrial Court to consider the functions and responsibilities of the person as embodied in the terms and conditions of his contract of employment and apply the following test: if the person is the very brain of the company or its directing mind determining and formulating the company policies, he cannot be a workman. The Inchcape test as it came to be known, was rejected and replaced by the age old contract of the service test by the Federal Court in CI Holdings,71 on the grounds that a company cannot be likened to a human body and also the test cannot be a generalized one to be valid for all situations. In reverting to the contract of service test, the Federal Court admitted that it was not the best test, for nowadays one cannot solely rely on the control test to determine whether a claimant is on a contract of service or contract for services. Since the Industrial Court seems to have been allowed by the Federal Court to apply a multifactorial test,72 there is room for arbitrariness in the Industrial Court decision and challenge. Whosoever one wants to blame, the government or the Industrial Court or the reviewing courts in Malaysia, the fact is that the need for a simple definition of workman has been overlooked, and the issue has been made litigious. Perhaps the issue of who is a workman under the Malaysian law came under a cloud because of the well-intentioned idea of bringing workers other than the union members into the law governing unfair dismissals. Section 20(1) of the Industrial Relations Act, in including them states 'when a workman, irrespective of whether he is a member of the trade union of workmen or otherwise...'

In the author's opinion, the vagueness of the 'otherwise' category of workmen has been the source of all the trouble. Before the inclusion of this 'otherwise' category of workmen, dismissal was treated as a trade dispute and the trade union of workmen as the sole bargaining agent or the representative union espoused the cause of members of the bargaining unit under s 26(l) of the Act, regardless of whether they were members of the Union or not. It is believed that one of the reasons for the inclusion of non-union members under the law was perhaps to avoid the possible step-motherly attitude of unions towards non-union members of the bargaining unit. For sometime there existed under the Act, two routes to go to the Industrial Court: One, where the trade union lodged the case of the union members under s 26(l) of the Act and two, where the non-union member directly made his representation for reinstatement to the Director General of Industrial Relations under s 20(l) of the Act. In 1989 section 20(1) was further amended to bring into its fold the union members as well. The reason for this inclusion was perhaps to remove the dependence of even the non-union members of the bargaining unit on their union to espouse their cause. If one considers s 20(l) as it stands today in the context of the amendments to the law on unfair dismissal and their rationale, one cannot escape the conclusion that the members of a 'bargaining unit' regardless of whether they are members of the representative union or not are only the workmen coming within the meaning of the section, not the members of the organization not eligible to become the members of the trade union workmen. Actual members of the union and the potential members of the union, under the law could not include, for example, members of the organization in managerial or executive capacity.73 Therefore, in the author's opinion, extending the meaning of the 'otherwise' category has been the cause of all confusion: introduction of contract of service test and negation of the Inchcape test and the re-embrace of the contract of service test are all deemed as misdirected efforts. Industrial law is meant to replace the harshness of the common law treatment of the workers, and as such the Industrial Relations Act 1967 is the law to protect the underdog, not the top dogs. The height of irony was reached when the Federal Court in CI Holdings 74 invoked the grounds of social justice to liberalize the impact of the Inchcape test and cited Bhagawathi J in support of its decision: 'interpretation of social welfare legislation should not be restricting but liberal to promote the social objective of the Act.' The Inchcape test, according to the Industrial Court,75 had excluded from the statutory definition of workman 'only an exclusive and necessarily very small group of employees, including Managing Directors definitely, and other working Directors of the Board possibly'. One may be forgiven if he asks whether any further widening of the definition was called for. Secondly, it is indeed intriguing that while Bhagavathi J pleaded for a liberal interpretation of the word 'industry' in the Indian Industrial Disputes Act 1947, only to extend the meaning of 'workman' to include primarily the poor manual and clerical workers in the service sector like hospitals, the Federal Court's rationale in CI Holdings for a liberal interpretation of the statutory definition of workman in our Act sounds unconvincing because it led to the inclusion of all and sundry in the higher echelons of management. In the context of the foregoing discussion, it is suggested that there is an imperative need for a statutory definition of workman which should bring within its meaning only workers within a 'bargaining unit, regardless of whether they are members of its sole bargaining agent or not.' In the Malaysian context, it is confined to all the members of the organization who are entitled to vote in the secret ballot to determine the strength of the union's following. The others (the top dogs) may be made to come within a new statutory provision defining them as 'employees' not workmen and brought under the jurisdiction of a special administrative tribunal. While this step would at least remove the anomaly of calling them workman,76 it is also suggested that appeal against the decisions of both Industrial Court and the Tribunal may be allowed in the Industrial Appellate Tribunal, if one is established. Preliminary objection It is well established that the Industrial Court has no jurisdiction to decide a dispute under s 26(1) of the Industrial Relations Act 1967 if it is not a trade dispute or to adjudicate on the representation for reinstatement under s 20(1) of the Act if the claimant was not a workman within the meaning of the Act. When the minister makes a reference to the Industrial Court either under s 26(3) or 20(3) of the Act and any one of the parties to the dispute doubts the jurisdiction of the court to decide the dispute, what is the right course of action for that party to take? The judges of our reviewing courts are divided on this issue. On one side, there is the view held by Mohamed Azmi J supported by Chan Min Tat FJ and currently by Gopal Sri Ram, CA and on the other side, Salleh Abas

LP of the Supreme Court sticking to his opinion with conviction. Bereft of all niceties and subtleties of the arguments of these legal minds, the issue as to the jurisdiction of the Industrial Court to decide on the dispute referred to it by the minister can be decided by either of the two possible courses of action. Doubt regarding the threshold jurisdiction of the Industrial Court can be resolved by the aggrieved party seeking to quash the minister's reference by certiorari and in the same application asking for an order of prohibition against the Industrial Court to stop it from proceeding any further in its inquiry. Alternatively, the aggrieved party could wait till the Industrial Court commences hearing on the dispute and raise a preliminary objection as to its jurisdiction to decide the dispute. 77 The Industrial Court is bound to decide this jurisdictional issue first before deciding to decide the dispute on its merits. Salleh Abas LP supporting the preliminary objection route argued that the Industrial Court has the right to examine its own jurisdiction before adjudicating the dispute and this right need not have to be expressly conferred on it in the statute, and it is purely a matter of statutory interpretation. Gopal Sri Ram while in agreement with the views of Mohamed Azmi J and Chan Min Tat FJ argued that the threshold jurisdiction of the Industrial Court may only be questioned by challenging the minister's reference in the High Court. Gopal Sri Ram's rationale for his option was put forward by him very clearly as follows: having regard to the general scheme of the Act, Parliament did not intend a threshold jurisdiction challenge before the Industrial Court by way of preliminary objection, for the legislature's paramount concern in passing the Act was to ensure speedy disposal of industrial disputes; and permitting preliminary objection to the threshold jurisdiction being taken will only delay industrial adjudication'. Even earlier, Wu Min Aun commenting on the preliminary objection route to resolving the Industrial Court's jurisdictional issue observed: 'a challenge to ministerial authority in the High Court is a far more sensible approach to the issue rather than to have it argued before the Industrial Court as a preliminary issue concerning jurisdiction, and later, if it turns out that the Industrial Court was wrong, to seek the further intervention of the High Court for the purpose of quashing the decision. Adopting the latter course of action is merely postponing the issue that eventually ends up before the High Court through a circuitous route'.78 Since time consumed in resolving the jurisdictional issue seems to be the deciding factor in the choice of the routes, it is worthwhile comparing the time consumed in each route. Of course, Gopal Sri Ram will make it a point to say, as he did in American International Assurance Co Ltd 79 that 'we have before us, yet another instance illustrative of the grave injustice that ensues when a preliminary objection is entertained by the Industrial Court. Here is a case where the minister made the reference in 1985; now after a passage of almost 14 years, all we have is a finding that the respondent was a workman. The other critical issues whether the respondents were dismissed and the whether their dismissal was for just cause are yet to be decided. Most surely, this cuts across the very purpose for which Parliament passed the Act'. This is a very persuasive argument but one should not take it at its face value. What he should consider as 'saving in time' is equal to the time taken for the case to go to the High Court through the preliminary objection route, not to 14 years because it includes the time taken for the case to go on appeal to the Court of Appeal and the time taken for the Court of Appeal to hear the appeal and decide. In the aforementioned case, this amounted to 11 years though unusually it took three years for the Industrial Court to decide on the preliminary objection. The point the author wants to drive home is that there would not have been a great need either for preliminary objection or direct challenge of ministerial reference in the High Court thence on for appeals against it in apex courts, if the judges of our reviewing courts have not made the issue of workman litigious; challenges to the threshold jurisdiction of the Industrial Court would have been few and far between. It is interesting that there is no illustration of the loss on account of preliminary objection as to the courts jurisdiction to adjudicate a trade dispute. This analysis only reinforces the need for a clear statutory definition of workman at two levels, at the level of the underdogs and at the level of top dogs in our Industrial Relations Act 1967. With these statutory provisions in place we may become indifferent between these two routes or may even prefer that of preliminary objection for the simple reason that the cost of court proceedings to the worker is insignificant in comparison. The extension of this review of the legislation has to be restricted to only one or two more sections, not because there are no issues to be reviewed but undertaking them would make this presentation unwieldy. Some

of the issues yet to be considered include consideration of the law on retrenchment, the suggestion to repeal s 30 A of the Act dealing with reference to the High Court on a question of law and the question whether a definition of misconduct is to be enacted into the Industrial Relations Act 1967. While tangentially reviewing the aforementioned areas of Industrial Relations, the author includes a brief discussion on the issue of non-compliance in this section. Retrenchment On the state of the law governing retrenchment there is not much to be added for it is one area in which the Industrial Court has been overzealous in heeding to the requirement under s 30(5A) of the Act to take into account the Code guidelines in making its award. The author rests satisfied by referring the reader to the illuminating article on the law governing retrenchment by Cyrus Das.80 Section 33 A Secondly on the question of dropping s 33 A from the Act, it may be argued that this section was introduced to minimize the damage done by the Privy Council ruling on the jurisdiction of the reviewing courts on error of law committed by the Industrial Court in the context of the ouster clause s 33 B of the Act.81 While the Fire-Bricks ruling by the Privy Council protected mere errors of law from Judicial Review, s 33 A opened up a new avenue for making reference of points of law by the Industrial Court to the High Court. Consequent on the ruling of the Court of Appeal in Sykt Kenderaan 82 the distinction between the jurisdictional error of law and mere error of law has been removed for purposes of judicial review of Industrial Court awards. This gives rise to the doubt whether the role of s 33 A of the Act has become redundant. There is not much to recommend to retain this section on the grounds of expeditious disposal of the points of law; Hotel Equatorial 83 clearly demonstrated that it takes as much time or even more for the question of law to be finally resolved as it would have taken through the judicial review route.84 Nevertheless it should be recognized that bringing all errors of law under judicial review may act as a potential threat to the exercise of the power of the Industrial Court under s 30(6) of the Act to create new rights and obligations to the parties to industrial relations to ensure peace and to render social justice.85 In fact, in underscoring the role of the Industrial Court not as an ordinary court of law but as a court of arbitration Chang Min Tat FJ in Dr A Dutt 86 approvingly citing the dicta of an Indian case observed that 'in settling disputes between employers and workman, the function of the tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or to give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace'.87 On this ground, the retention of the role of the Industrial Court under s 33 A seems to be justified. It redounds to the credit of Gopal Sri Ram to have given a clear guideline as to the extent of the power of the Industrial Court under s 30(6) of the Act when he stated that '..... the limits imposed by s 30(6) will not be exceeded so long as there is a rational nexus between the relief and the dispute it seeks to resolve, bearing in mind that a flexibility of approach is called for when considering the relief that is to be granted in a particular case. This then is the true extent of the Court's powers under s 30(6) of the Act.'88 Misconduct There is no statutory definition of misconduct in the Industrial Relations Act 1967. As it is, only s 14(1) of the Employment Act 1955 has a definition of it. This section refers to misconduct as conduct 'inconsistent with the fulfilment of the express or implied conditions of service'. The Industrial Court has defined misconduct as improper behaviour that violates the rules of the organization; it should not be trifling in nature, must be intentional, and the employee must be aware of the harm he is causing.89 Pursuing its definition that misconduct is any 'improper behaviour', the Industrial Court in Kannan v National Land Finance Co-operative Society Ltd (Award No 95 of 1977) established that misconduct in industrial employment can broadly be dealt with under the following three headings, namely (a) misconduct relating to duty; (b) misconduct relating to discipline; and (c) misconduct relating to morality.90 The statutory definition of misconduct in our Employment Act refers to it as breaches of the terms of the contract of service; perhaps because of this, CP Mills felt that it was a mistake to attempt to categorize 'misconduct' thus, for any 'misconduct' becomes relevant to the contract of employment only if it is a breach of the duty owed by the workman to his employer

under the contract of service. To distinguish 'misconduct relating to morality' from 'misconduct relating to duty' suggests that immoral conduct per se will justify summary dismissal, and that is not so.'91 Our Industrial Courts are following Malhotra's classification of misconduct as followed by the Industrial Court in Kannan aforementioned. In cases involving sexual immorality by employees, though they come under private conduct, the Industrial Court considered them as grounds for misconduct deserving dismissal.92 Moral turpitude or an act of depravity for example is a violation of an employees moral duty not to tarnish the image of the organization in which he is employed, and as such it comes under the implied conditions of service. In conclusion, in reviewing the law governing dismissals, there must be a provision defining clearly, what is misconduct, and such a definition when included under the Industrial Relations Act should permit inclusion of all of the Malhotra's categories as currently followed by our Industrial Courts. The author feels that the statutory definition under s 14(1) is indeed adequate for not only it is wide ranging but it recognizes misconduct due to breach of implied conditions of service as well. However, it is suggested that this definition of misconduct may be included under s 2 of the Industrial Relations Act among other definitions like contract of employment. Non-compliance One of the crucial areas demanding reform is non-compliance by the employer not only with the awards of the Industrial Court but also with the minister's order for recognition of a union as the representative union. It is a truism that a law gets discredited when it is not enforced, and it is no exaggeration to state that non-compliance on these two counts is the bane of the Industrial Relations Act 1967. The penal provisions under the law for non-compliance with the award are really stringent in that under s 56 of the Act, failure to comply with the order of the Industrial Court elicits a fine not exceeding two thousand ringgit, or imprisonment for a term not exceeding one year, or both, and a further, fine of five hundred ringgit for every day during which such offence continues; but all these punishments for non- compliance follow only after conviction which entails an involved legal procedure for prosecution. With regard to compliance to the minister's order of union recognition, the finality clause is not effective in protecting the minister's decision from challenge in the reviewing courts. The government was once contemplating to introduce an amendment in the Act providing for automatic recognition of union once it has been decided that the union is eligible for recognition as the representative union.93 There will not be any need for an employer's recognition of the union. Unfortunately, there was no follow up action on this much needed proposal to ensure the basic right of the union to gain the right of appearance before the employer for collective bargaining. Any reluctance of the employer to recognize a union is in fact a reluctance on his part to recognize the very philosophy of pluralism in industrial relations. However, to ensure the employer's compliance with the award of the Industrial Court (Section 17 of the Act equates the status of a collective agreement to that of an award), the Act was amended in 1989 to allow the claimants to register the Industrial Court awards as judgments of the High Court or the Sessions Court (Section 56(4) of the Act). Nevertheless, Zainal Rampak, the MTUC President felt that it would be better to give punitive powers to the Industrial Court by way of fines and prison terms to make employers comply, rather than leaving it to the Sessions Court or the High Court to enforce judgment, which means the aggrieved party has to find the financial and legal means to get justice done.94 It is to be noted that Zainal's proposal is based on Singapore practice where the Industrial Court has the same power to punish, as contempt of court, a failure to comply with an order of the court as possessed by the High Court. The fines and penalties for contempt of court are much heavier than those provided for other offences under the Act.95 It is the author's suggestion that if the Government has some qualms about bestowing this punitive power on the Industrial Court it could consider conferring it on the Industrial Appellate Court when it materializes.96 Expediting dispute settlement In construing the Industrial Relations Act 1967 as a whole to determine its policy and object, Raja Azlan Shah CJ stated that, it cannot be denied that the intention of the Act is to regulate the relations between management and labour and to prevent and settle trade disputes arising therefrom. Briefly, it provides the machinery for investigating, determining and settling such disputes by collective bargaining, conciliation and reference to the Industrial Court.97 Given this object, Gopal Sri Ram is of the view that 'the legislature's paramount concern in passing the Act is to ensure speedy disposal of industrial disputes.98

The well-known maxim, justice delayed is justice denied, epitomizes the significance of avoiding delay in settling industrial disputes in the interest of social justice. In the three-cornered approach to industrial relations when conciliation steps in after negotiation and adjudication follows conciliation, settlement of industrial disputes is cumulatively delayed. There will always be some lapse of time in reporting the dispute to the Director General of Industrial Relations under s 18, and the conciliation process that follows will necessarily take further time. The delay due to bargaining and conciliation cannot be avoided in settling disputes under the Act since the policy of the legislation seems to have been that it should not be too easy for the parties to get the matter to the Industrial Court. Both bargaining and conciliation should be tried and should be found to have been unsuccessful before resort is to be had to the proceedings of the Court.99 The discretion the Act confers on the minister to refer or not to refer a trade dispute to the Court may also confirm this intention of the industrial law, even though some argue that it adds to the delay in processing the dispute for reference to the Industrial Court. For example, B. Lobo advocates that the minister should cease to be a conduit to refer unresolved disputes to the Industrial Court.100 On the other hand, it may be argued that the exercise of ministerial discretion to weed out vexatious or frivolous cases could not only prevent the clogging of the Industrial Court with such cases, but might compel the parties to seek a negotiated settlement which is speedier than the one through the adjudication process. Needless to say, the minister should be scrupulous in avoiding any bias in exercising his discretion. Apart from the time taken for negotiation, conciliation and referral of industrial disputes for adjudication, a further delay of three to six months is unavoidable in setting cases down for hearing in the Industrial Court due to the increasing number of cases referred to it.101 Once the trade dispute comes within the jurisdiction of the Industrial Court, the statute supposes that ordinarily it can be disposed of within a period of 30 days;102 but that has usually proved to be too optimistic an expectation. Sometimes the delay has been attributable to one or the other of the parties, occasionally to both; sometimes to the unavailability of the representatives of the parties, especially busy lawyers and sometimes a member of the Court. One of the suggestions made by the MTUC to speed up the process of settling disputes in the Industrial Court is to exclude lawyers from appearing for parties in Industrial Court cases.103 Not only is legal assistance expensive but, more importantly, much of the delay in disposing of Industrial Court cases is caused by lawyers requesting postponements as they are busy attending other cases. The Court has, on a number of occasions, expressed its reluctance to agree to the adjournment of a case, except where it seems that further negotiations are likely to produce an amicable settlement between the parties. But in practice, the Court, more often than not, seems to be able to accede to requests for adjournment, even if reluctantly.104 For example, in Kandiah v Golden Hope Plantation Ltdthe Court allowed adjournments which stretched a 15-day hearing over a period of nearly 18 months!105 The suggestion to keep lawyers away from the Industrial Court does not call for any amendment to the Industrial Relations Act because, unlike in other courts, lawyers appear in Industrial Court cases only with the permission of the President or the Chairman of the Court under section 27(1) of the Act. Otherwise, the same subsection stipulates that parties to a trade dispute can be represented by an officer or employee of the trade union or, where the party is an employer, he may appear himself or be represented by an authorized employee or officer of an employer organization. Industrial relations practitioners, while not overtly disapproving of MTUC's suggestion, opt for a qualified, not a total, exclusion of lawyers in Industrial Court cases. They argue that disputes relating to dismissals of employees, especially of non-unionized employees and cases involving interpretation of collective agreement and application on points of law to the High Court under s 33 A require the services of lawyers. The reason for their belief that parties can do without legal assistance in cases involving only bargaining demands is quite simple: not only do the parties negotiate between themselves on terms and conditions of employment without legal assistance, but also resort to conciliation without such assistance. In disputes arising out of bargaining demands, the parties are in a better position than lawyers to understand and appreciate the issues involved, and therefore can work out a fair settlement without regard to legal principles and technicalities. Furthermore, bargaining demands in Malaysia are simple and straightforward, rarely involving points of law106 but equitable adjustment to meet the needs of social justice. Direct arguments and negotiations between representatives of trade unions and management with the Industrial Court Panel as arbitrators have the poten-

tial to make the current court proceedings informal and speed up the settlement of trade disputes. Such a system of informal interactions between the parties and the panel in the Industrial Court is very much in vogue in Singapore's Industrial Arbitration Court.107 Any analysis of the causes of the delay in settling industrial disputes should include the tendency on the part of the employers, more than the employees or their trade unions, to challenge the decisions or awards of the Industrial Court in the High Court. Delays due to such challenges being brought to the High Court have been a further source of irritation and complaint by labour, not only on account of the inordinate delay involved in settling disputes but also on account of the prohibitive cost of such litigation. This has favoured the employer who has the financial capacity.108 Since it cannot prevent litigants from filing a writ of certiorari in the High Court to quash its decision, the Industrial Court has proposed to the Human Resources Minister the setting-up of an Industrial Appellate Court to hear all appeals.109 An aggrieved party who was not happy with the Industrial Court decision could appeal to this court as it is now doing with the High Court.The legal and financial advantages the employer enjoys taking cases to High Court would be neutralized by the setting-up of the Appellate Court. The salutary effect of such an Appellate Court would be that it would deal exclusively with industrial cases and, furthermore, all appeals would be heard and determined within the four corners of the Industrial Relations Act 1967.110 Since it would deal exclusively with industrial disputes, it would undoubtedly speed up the settlement of industrial disputes.A study on the feasibility of such a court of appeal has been undertaken jointly by the Ministry of Human Resources, the Malaysian Employers' Federation and the Malaysian Trades Union Congress. The outcome of this study is yet to be made public. However, the idea of an Industrial Appellate Court is not new since such an appellate industrial tribunal did exist and function in India, and was subsequently abolished in view of both parties flooding the court with appeals.111 While both the MTUC and the MLO welcomed the move to set up an Industrial Appellate Court, they stressed that decisions by this Court should be final and conclusive; otherwise it would defeat its purpose.112 However, given the attitude of the Superior Courts, it is extremely unlikely that any statutory provision, however strongly worded, could shield its decisions from judicial review for jurisdictional errors and grave errors of law. In view of the Indian experience and the ineffectiveness of any ouster provisions in the statute, one wonders whether it is wise for Malaysia to venture into this enterprise. However, on second thought, it looks the jurisdiction of the Appellate Court could be restricted on an experimental basis to evaluate its efficacy. In 1996 our Prime Minister, Mahathir Mohamad ventured to float 'the idea of arbitration by a third party with provisions for affected parties to appeal to a higher authority if they were dissatisfied with the initial arbitration'. 'Though the idea is rather radical', he pleaded, 'let us not completely shut our hearts to the idea'113 It is suggested that initially the jurisdiction of the Appellate Court may be restricted to appeals over the decisions of voluntary arbitration of industrial disputes. This may provide a powerful incentive for the parties to have recourse to settling disputes through voluntary arbitration. In the United States of America, the voluntary arbitration clause required by law to be incorporated into every collective agreement provides for referral of disputes to an impartial umpire mutually acceptable to both the parties, and his decision is final and binding. To ensure impartiality payment of the arbitration fee is equally divided between the parties. In the USA there is a dedicated cadre of arbitrators, which includes a large body of Professors of Industrial or Labour Relations in the Universities. Some of the eminent Professors serve as referees to arbitrate disputes between mighty powerful unions and managements such as American Automobile Companies like GM, Ford and Chrysler on the one hand and the United Auto Workers on the other. In Malaysia, the parties also can resort to this type of arbitration since s 14(2)(d) of the Industrial Relations Act 1969 specifically permits the parties to incorporate into their collective agreement 'any appropriate machinery' to settle both interpretation and implementation disputes, but it is not mandatory. Nevertheless, in the absence of such a provision in the agreement, it is mandatory under the same section for the parties to incorporate into the agreement 'a procedure' to deal with such disputes, including reference of such disputes to the Industrial Court.114 Typically, collective agreements fulfil this legal requirement by stating the procedure for the settlement of interpretation and implementation disputes by stipulating that any dispute relating to interpretation or implementation of this agreement shall, unless settled by negotiation between the employer and the union, be referred to the Industrial Court for decision.115 When assured of a cadre of dependable and qualified arbitrators, Mahathir's proposal of 'appeal over voluntary arbitration decision' may allow the parties to embrace this voluntary method of settling disputes. If the setting up of the Appellate tribunal is going to be instrumental in establishing voluntary arbitration on a firm footing in Malaysian industrial relations, it should be welcomed.

Conclusion Adequate justice cannot be done to the subject undertaken for review by the sole efforts of the author. However, the usefulness of this presentation may be enhanced by summing up the salient features of the suggestions made for revision and reform of Industrial Relations Act 1967, from the workers' perspective. The need for workers knowing the reasons for their dismissal including termination simpliciter would be met by a statutory provision or regulation under it to enforce the employee's right to be heard before dismissal by making it obligatory on the part of the employer to ensure that the 'accused is given sufficient opportunity not only to know the case against him but also to answer it. This requirement need not call for any elaborate procedure of pre-dismissal inquiry; it only needs incorporating into the law, the 'loose standard of being heard' as articulated by the Industrial Court in Aliah v Chartered Bank: 'if the workman has been informed of the specific accusation and he submitted his written explanation, that is sufficient opportunity of being heard; an oral hearing is not essential'.116 In other words, this requirement amounts to the employer framing charges against the employee and issuing a show cause letter to him so that he could respond in defence of his own cause. However feeble may be this suggestion to ensure procedural fairness it may solve several problems; firstly it is not burdensome even for a small scale employee and therefore, he would accept that the Industrial Court would be fully justified in setting aside his dismissal when he fails to observe even this minimum standard of procedural fairness. Second, not only it compels employers to give reasons to the employee before dismissing him but also it precludes the employer from relying on reasons other than those known to him at the time of the dismissal to justify the dismissal during the hearing in the Industrial Court at a later date. Furthermore, it will still safeguard the interest of the employee from dismissal without just cause or excuse by requiring the employer to prove the case on a stricter standard of proof (balance of probabilities) before the Industrial Court, since his preliminary investigation would not amount to establishing a prima fade case as a full-fledged domestic inquiry would. The persuasive obiter strongly supportive of due inquiry under s 14(1) of the Employment Act and the general tenor of the judgment by Edgar Joseph Jr in Said Dharmalingam 117 seem to point to the need for an enactment, however, diluted, to ensure a modicum of fairness to the employee before he is dismissed. Second, in defining the ambit of ministerial discretion not to refer a representation for reinstatement to the Industrial Court, Gopal Sri Ram in Hong Leong Equipment 118 ruled that the minister should give reasons for the exercise of his discretion. Since the government seemed to have accepted this ruling without resorting to an appeal against it, it is suggested that this ruling may well be translated into a statutory provision. The third suggestion related to relief for unfair dismissal. In drawing the attention of the readers to the inequities involved both in payment of backwages and payment of compensation in lieu, the author has argued against the mitigation rule and payment of compensation on retrenchment principle. It was suggested that payment of compensation should be incorporated into the statutory law governing unfair dismissal with regulations to govern the reliefs on sound principles of social justice. The thrust of the suggestion is to make payment of compensation not attractive lest it would make reinstatement a lost remedy. Among other suggestions for revision of the Industrial Relations Act 1967, the following deserve serious consideration: the introduction of a statutory definition of misconduct under s 2 of the Act; dropping s 33 A from the Act in view of our reviewing courts regaining their power to review even mere errors of law; the resolution of interpretation and implementation disputes through voluntary arbitration subject to appeal to the Appellate Tribunal; removing legal representation in the Industrial Court for deciding interest disputes in collective bargaining and finally a definitive provision confirming the contract test inclusive of a breach of the implied term of the contract as a criterion for constructive dismissal. Needless to say, discussion to introduce a new enactment on unfair dismissal has taken the centre stage in the presentation. It is but natural because dismissal touches the livelihood of workmen and arbitrary decisions in this domain would violate the fundamental right to life guaranteed to every citizen in the Federal Constitution of Malaysia. As the author has suggested, this enactment should be able to fulfil the existing void in our legislation: i.e. the need for a mandatory provision for pre-dismissal investigation, the need for including payment of compensation as a statutory remedy for unfair dismissal, the need for a definitive provision covering constructive dismissal besides the need to create a cause of action as Lobo has argued in his article.119 With the constraints precluding the inclusion of a full-fledged pre-dismissal inquiry under the Act, the role of the Industrial

Court in rendering social justice to the workers becomes paramount. Not only is there a need for the Presiding Officers of the Industrial Courts to be well aware of the concept of social justice,120 but also to be aware, all the time, that they are applying industrial, not common law, to decide on industrial disputes and the cardinal principle of industrial law is to minimize the harshness of common law.121 Besides they have the sacred duty to hold the scales of social justice even without any bias, personal, official or ideological. The Act itself imposes on them the mandatory duty to act according to equity and good conscience. However, it is appropriate to end this presentation with a caveat to this salutary statutory obligation: conscience is a coward; that which it has not strength enough to prevent, it has seldom justice enough to condemn.
1 Gary Yuen and Tan v Diana Ann Seah[1998] 2 ILR 381. The Industrial Court in this case cited the following as authorities to support this proposition: a b c Kum Printers Sdn Bhd v Printing Industries Employees Union [1990] 1 ILR 274 EON Sdn Bhd v Quah Poh Huat[1990] 1 ILR 162; and Goon Kwee Phoy v J & P Coats (M) Bhd [1998] 2 MLJ 129, at p 136 where Raja Azlan Shah stated that 'in Dr Dutt v Assunta Hospital [1981] 1 MLJ 304, this court held that the so-called 'termination simpliciter' i.e. a termination by contractual notice and for no reason, if ungrounded on any just cause or excuse and on a workman's representation, the Industrial Court may award reinstatement or compensation in lieu of reinstatement.

2 DP Xavier, 'Discipline in Industry: The Application of the Principles of Natural Justice' [1980] 2 MLJ xvii. This observation is based on the judgment of Gajendragadkar in RB Diwan Badri Dass and Ors v Industrial Tribunal, Punjab, Patiala(1963) AIR (Supreme Court) p 633 -34, where he held: ...It has consistently been held that the said (contractual) right is now subject to certain principles which have been evolved by industrial adjudication in advancing the cause of social justice... (Cited with the approval in Dr A Dutt v Assunta Hospital[1981] 1 MLJ 304, at p 312.) 3 This is what was expected of him by the ruling of the Industrial Court in Great Eastern Life Assurance Bhd v Kesatuan Sekerja Kebangsaan Pekerja-Pekerja Perdagangan(Award No 21 of 1969) [1970] 1 MLJ xxxii. 4 Wong Yuen Hock v Hong Leong Assurance Sdn Bhd & Anor[1995] 2 MLJ 753. 5 W Devis and Sons Ltd v Atkins [1977] AC 931. 6 Goon Kwee Phoy v J & P Coats [1981] 2 MLJ 129. 7 Sometimes, even when a reason has been given by the employer, it could so happen that the Industrial Court may base its conclusion on reasons not relied upon by the employer (see Malaysian Smelting Corporation Bhd v Kesatuan Kebangsaan PekerjaPekerja Perusahaan Peleboran Logam. Butterworth [1992] 2 ILR 53). In this case, the suspected validity of the 'medical certificate' and 'malingering' were the two reasons into which the court went to investigate when they were not relied upon by the employer. The employer was basing his accusation of the employee on the ground of 'excessive use of medical leave with the intention of not coming to work'. 8 R Ramachandran v The Industrial Court of Malaysia[1997] 1 MLJ 145, at page 178. In this Federal Court decision, Eusoff Chin CJ observed 'it is trite law that a party is bound by its pleadings. The Industrial Court must scrutinize the pleadings and identify the issues, take evidence, hear the parties' arguments and finally pronounce its judgment having strict regard to the issues. The object of the pleadings is to determine what are the issues and to narrow the area of conflict The Industrial Court cannot ignore the pleadings and treat them as mere pedantry or formalism because if it does so, it may lose sight of the issues, admit evidence irrelevant to the issues or reject evidence relevant to the issues and come to the wrong conclusion. The Industrial Court must at all times keep itself alert to the issues and attend to matters it is bound to consider...' 9 Supra n 1. 10 Supra n 1. 11 Supra n 1. 12 Minister of Labour v Sanjiv Oberoi & Anor[1990] 1 MLJ 112. 13 Hong Leong Equipment Sdn Bhd v Liew Fook Chuan[1996] 1 MLJ 48.

14 Section 12(5) of the Indian Industrial Disputes Act 1947 states that 'if...the Government is satisfied that there is a case for reference to ... the tribunal...it may make such a reference. Where the appropriate government does not make a reference it shall record and communicate the parties its reasons thereof.' 15 Surindra Singh Kanda v Government of the Federation of Malaya[1962] 1 MLJ 172. 16 Sykt Great Eastern Life Assurance Bhd v Kesatuan Sekerja Kebangsaan Pekerja- Pekerja Perdagangan (Award No 21 of 1969). 17 Aliah bt M Yassin v Chartered Bank (Award No 93 of 1981) In fact, in this case, the Industrial Court seemed to have operationalized the expected standard thus: 'if the workman has been informed of the specific accusation and he submitted his written explanation, that is sufficient opportunity of being heard; an oral hearing is not essential.' 18 Dreamland Corporation (M) Sdn Bhd v Choong Chin Sooi & Anor [1988] 1 MLJ 112. 19 Workmen of the Motipur Sugar Factory (P) Ltd v Motipur Sugar Factory (P) Ltd (1965) AIR 1803. 20 British Labour Pump Co Ltd v Byrne[1979] 1 RLR 94. 21 Supra, n 4. 22 Ibid p 765. '...The hearing before the Industrial Court...should be taken as sufficient opportunity for the employee to be heard to satisfy natural justice and thereby rectify any omission to hold any domestic inquiry'.

23 Said Dharmalingam Bin Abdulla v Malayan Breweries (M) Sdn Bhd[1997] 1 MLJ 352 (SC). 24 Ibid p 363. 25 Ibid p 363. 26 Ganesan G Suppiah v Mount Pleasure Corp Sdn Bhd [1998] 1 CLJ 637 per p 641. In his judgment, Abdul Kadir Sulaiman J said that 'the dicta in Said Dharmalingam is Obiter in that the matter before the Supreme Court was not one under s (20) of the 1967 Act. but concerning a declaration by way of a writ of summons in the High Court based on the provisions in the 1955 Act' (Employment Act 1955 s 14(1)). 27 Supra n 23. In this verdict, FJ Edgar Joseph Jr talked supportively of the Code of Conduct provisions favouring pre-dismissal inquiry. 28 Polkey v Dayton (AE) Services(1987) IRLR 530 at p 433. 29 For detailed arguments supporting procedural rectitude in dismissal proceedings readers may refer to the following two articles: V Anantaraman, 'Procedural Fairness in Dismissal Proceedings in Malaysia', [1996] 2 MLJ cxiii and V Anantaraman, 'The Enigmatic Law on Unfair Dismissals in Malaysian Industrial Relations' [1999] 2 MLJ ciii. 30 Dr A Dutt v Assunta Hospital [1981] 1 MLJ 304. 31 Ashgar Ali Ali Mohamed, 'Interim Reinstatement in Employment: A Guard Against Reinstatement Becoming a Lost Remedy -Reference From New Zealand Case Laws' [1998] 4 CLJ Supp i. 32 Section 62 of the Industrial Relations Act 1967: 'The minister may make regulations for the purpose of carrying out or giving effect to this Act...The regulation may...provide for anything which may be prescribed under the Act'.

33 CP Mills, Industrial Disputes Law in Malaysia, Malaysian Law Journal Sdn Bhd, Kuala Lumpur, 1984, p 138. Mills argues that 'strained relationship doctrine'cannot always be sustained as a plea against reinstatement. The conclusion that the chance of reestablishing good relations is too remote may often be due, at least in part, to the employer's unfair treatment of

the workman. Second, it could be argued that it should not be difficult in a large organization at least, to locate a workman in a different position where the old strained relationship will not operate. Furthermore, the employer may resist reinstatement on the ground that the positions of the dismissed men have been filled, and that he would have to dismiss workers in order to make way for the reinstated man. Sometimes, the Industrial Court counters this argument by requiring the employer to observe the seniority rules as in retrenchment (the LIFO principle). Of course, some employers determined not to take back unfairly dismissed or retrenched workmen 'contract out' their work, and this may compel the court to order payment of compensation in lieu of reinstatement. However, this does not mean there is no merit in employers' reluctance to reinstatement. As Malhotra and Malhotra argue 'one of the important factors militating against reinstatement is the loss of confidence in the workman by the employer. The plea by the employer gains weight particularly if the employee was holding a position of trust and confidence, for it renders it insecure and undesirable to retain him in service, even if his dismissal has been held to be invalid or unfair' (OP Malhotra and KR Malhotra, The Law of Industrial Disputes, 3rd Ed, Tripathi, Bombay, 1981 p 913. 34 Supra, n 31. 35 Malhotra and Malhotra, supra n 33, in p 940 'Termination of service as a punishment inflicted by way of disciplinary action has been specifically excluded from the definition of retrenchment. There is therefore, no scope for allowing retrenchment compensation in such cases.' 36 This passage is part of the illuminating review of the Indian, English and Ceylonese case law on the relevant statutory provisions by the Ceylonese Supreme Court in Ceylon Transport board v AH Vijaya Ratne [1976] 1 LLJ 182 per p 196. 37 In calculating backwages, the Industrial Court pursuant to its 'Practice Note' No 1 of 1987 started allowing a maximum of 24 months for payment of backwages and compensation in lieu at the rate of one month pay for each completed year of service. This Practice Note was presumably introduced by Justice Datuk Harun Hashim when he was the President of the Industrial Court soon after the Federal Court ruling on Dr A Dutt v Assunta Hospital (supra n 30). In this case, the Industrial Court Chairman, K. Somasundaram, ordered payment of backwages for 40 months and compensation for 18 months when Dr Dutt had served for only 12 years. 38 For a detailed discussion on the practice of our Industrial Courts in paying backwages and compensation in lieu of reinstatement and a critical evaluation of the same, reference may be made to pp 270 to 281 in the author's book: V. Anantaraman, Malaysian Industrial Relations Law and Practice, University Putra Malaysia Press, Serdang 1997: Reprint 1999. 39 T aylor's College (MS) Associates Sdn Bhd v Puan Yong Show Foi and 2 Ors(Civil Appeal No R8-16-11 of 1987). 40 Kama Morris Sdn Bhd v Lee Chwee Say(Award No 116 of 1990) 1 ILR 435 also Talasco Insurance Sdn Bhd v Mohd Anuar Bin Abu Kassim [1991] 1 ILR 169. The Industrial Court stated in Kama Morris that 'the extent of income earned by the workman, in alternative employment following his dismissal should be one of the relevant factors to be taken into account in calculating the quantum of compensation to be paid, though the workman was under no legal duty to mitigate the damage.' The Federal Court in Dr James Alfred (Sabah) v Koperasi Serbaguna Sanya Bhd (Sabah) & Anor [2001] 3 CLJ 541 confirmed this view of the Industrial Court when it held that, "In line with equity and good conscience, the Industrial Court should, in assessing the quantum of backwages, take into account the fact, if established by evidence or admitted, that the workman has been gainfully employed elsewhere after his dismissal. A failure to do so amounts to a jurisdictional error of law and certiorari will lie to correct it." 41 Casuarina Beach Hotel v National Union of Hotel, Bar and Restaurant Workers (Award No 74 of 1981). 42 R Ramachandran v Industrial Court and Anor [1997] 1 MLJ 145. 43 Harris Solid State (M) Sdn Bhd and Ors v Bruno Gentil s/o Pereira and Ors [1996] 3 MLJ 489. 44 By extending their review jurisdiction, they reviewed the decisions of the Industrial Courts on their merits, substituted their own decisions for those of the Industrial Courts, and moulded the consequential relief to 'satisfy the insistent demands of Justice'. As Sudha Pillay rightly observed, 'the Federal Court has made a conscientious and calculated decision to free itself from the shackles of common law......' (Sudha CKG Pillay, 'The Ruling in Ramachandran -- A Quantum Leap in Administrative Law?' [1998] 3 MLJ lxii. 45 Sudha CK G Pillay, ibid and also supra n 43 and n 44. 46 Sudha Pillay ibid p lxxiv. 47 Supra N 43 p 521.

48 V Anantaraman, 'Malaysian Industrial Relations The Doctrine of Constructive Dismissal', The Malaysian Law Journal, 21 July 2000, [2000] 3 MLJ xvii. 49 Cathy Organization (M) Sdn Bhd v Wong Chee Hong(Award No 26 of 1986). 50 Wong Chee Hong v Cathy Organization(M) Sdn Bhd . 51 Ibid. 52 Ibid at p 95. 53 Ibid at p 95. 54 MPH Bookstores Sdn Bhd v Lim Jit Seng (1987) ILR June 585. 55 Western Excavating (ECC) Ltd v Sharp[1978] ICR 221 (CA) Lord Denning MR at p 225. 56 Wood v WM Car Services (Peterborough) Ltd (1982) IRLR 347. 57 Ibid, per Lord Browne- Wilkinson. 58 Lewis Motorworld Garages Ltd [1985] 1 IRLR 465. 59 Jennico Associates Sdn Bhd v Lilian Therera De Costa(Award No 606 of 1996) 2 ILR 1765. 60 Ang Beng Teik v Pan Global Textile Bhd Penang . 61 Anwar Abdul Rahim v Bayer (M) Sdn Bhd [1998] 2 MLJ 599. 62 Bayer (M) Sdn Bhd v Anwar Bin Abd Ramil, the Federal Court's oral judgmenton 18 May 1999 mentioned in B Lobo, 'Whither The Test For Unjust Constructive Dismissal in Malaysia'. [1999] 3 MLJ xc. 63 Supra, n 48 at p lvii. 64 Supra n 48 at p lviii. 65 Supra n 48 at p li. 66 Section 84(1) of the Industrial Relations Act, Singapore 'if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved, the onus shall be on the defendant to prove that he was not actuated by the reason of the alleged charge'. 67 V Anantaraman, 'Revisionism of the Restructured Judiciary In Malaysian Industrial Relations', [1997] 1 MLJ lxxxix. 68 Dr Dutt v Assunta Hospital[1981] 1 MLJ 304. 69 Inchcape Holdings Bhd v RB Gray (Award 114 of 1982) 166. 70 Simmons v Health Laundry Co also cited on p 303 in Inchcape (M) Holdings Bhd v RB Grey &Anor [1985] 2 MLJ 297. 71 Hong Kiang Ngan v Mahkamah Persekutuan Malaysia and CI Holdings; Federal Court Civil Appeal No 02-730-1993, pp 1-44 (' CI Holdings'). 72 Ibid pp 38 -39. "The dividing line between a contract of service and a contract for services is often very fine. What is the standard to apply to distinguish between the two contracts? It is an elusive question. Despite a plethora of authorities, the courts have not been able to devise a single test that will conclusively point to the distinction in all cases." (Also, see Great Eastern Mills v Ng Yuen Ching[1998] 6 MLJ 214.) 73 Section 9(1) of the Industrial Relations Act 1967.

74 CI Holdings, supra n 71. 75 Asia Motors Co Sdn Bhd v Cho Mai Sum(Award No 198 of 1986); 1. 76 Another anomaly one finds in our labour law is that while workers earning less than RM1500 pm are called employees under the Employment Act, those employees earning even more than RM10000 per month are called workman under the Industrial Relations Act 1967. This is perhaps due to the fact s 20 was not part of the original scheme of the Industrial Relations Act 1967. It is a provision especially grafted into the Act subsequently. 77 The following reviewing court cases give a comprehensive account of the issues discussed in this section: 1 2 3 4 Assunta Hospital v Dr A Dutt[1980] 1 MLJ 96, (HC) Mohamed Azmi J. Assunta Hospital v Dr A Dutt[1981] 1 MLJ 115, (FC) Chan Min Tat FJ. Inchcape Malaysia Holdings Bhd v RB Gray & Anor [1985] 2 MLJ 297 (SC) Kathiravelu Ganesan & Anor v Kojasa Holding Bhd[1997] 2 MLJ 685

Salleh Abas LP.

78 Wu Hin Aun, Industrial Relations Law of Malaysia, Longman, Malaysia, 1995. 79 American International Assurance Co Ltd v Dato'Lam Peng Chong & Ors. Court of Appeal[1999] 2 CLJ 771. 80 Dato' Dr Cyrus Das, 'Reorganization and Retrenchment in Malaysian Employment Law', (CLJ Legal Network, Article); 1999, CLJ i. 81 South East Asia Fire-Bricks Sdn Bhd v Non Metallic Mineral Products Manufacturers Employees Union[1980] 2 MLJ 165, Privy Council. 82 Sykt Kenderaan Melayu Kelantan Bhd v Transport Workers Union [1995] 2 MLJ 317. 83 Hotel Equatorial (M) Sdn Bhd v National Union of Hotel, Bar and Restaurant Workers[1984] 1 MLJ 363. 84 MP Jain, Administrative Law of Malaysia and Singapore, Malayan Law Journal, 1997 pp 806-806 To minimize delay, Jain suggests that a simpler procedure to expedite matters would be to provide that appeal on points of law can be taken from the Industrial Court to the Supreme Court. 85 For a discussion of this issue, see V Anantaraman, Malaysian Industrial Relations: Law and Practice, UPM Press 1999, p 217 -218. 86 Dr A Dutt v Assunta Hospital[1981] 1 MLJ 304. 87 Bharat Bank Ltd v Employees of Bharat Bank Ltd Delhi (1950) AIR 188 SC. 88 Supra n 82 at p 357. 89 Marilyn Aminuddin, Malaysian Industrial Relations, McGraw Hill, Singapore, 1990 p 88. 90 Malhotra and Malhotra follow their own classification of misconduct in Industrial employment under the following headings. (a) (b) Misconduct relating to duty includes acts of misconduct like non-observance of duty, non-performance of work, negligence of duty, engaging in work similar to that of the employer, absence without leave, late attendance and illegal industrial action. Misconduct relating to discipline includes acts subversive of discipline such as abusing a superior officer by using vulgar and filthy language, sleeping in the office while on duty, rowdy conduct during working hours etc.; other acts of misconduct relating to discipline are insubordination or disobedience, riotous and disorderly behaviour and damage to employer's property and reputation. Misconduct relating to morality (morality meaning good and upright behaviour) include theft, dishonesty and fraud, disloyalty, corruption and moral turpitude implying depravity and wickedness of character or immoral acts; Arrests and convictions for criminal offences, including all offences under criminal law. (p 754793)

(c) (d)

91 CP Mills, Industrial Disputes Law in Malaysia, Malayan Law Journal Sdn Bhd, 1984 p 68.

92 Permit Plywood Sdn Bhd Kuala Terengganu v Kesatuan Pekerja-Pekerja Perkayuan Semenanjung Malaysia[1993] 1 ILR 253. In this case, a boilerman admitted to have invited a female employee of the company home to have sexual relations with him when his wife was away. The court held that 'the claimant's action has undoubtedly tarnished the company's reputation and is bound to affect it adversely in small town such as the present one'. 93 The New Straits Times, 10 November 1993; also V Anantaraman, supra n 38 p 106. 94 The New Straits Times, 15 December 1987; also V Anantaraman, supra 38 p 150. 95 V Anantaraman, Singapore Industrial Relations System, McGraw Hill, Singapore, 1990 pp 142 -243. Also the Legislative Assembly Debates, Official Report Vol 19, 10 July 1962 Cols 172 -73. 'There is sufficient power under cll 51, 55 & 56 for the Court to see that its awards are honoured and to impose penalty on the union or employer'.

96 V Anantaraman, supra n 38 p 158. 97 Raja Azlan Shah CJ in National Union of Hotel, Bar and Restaurant Workers v Minister of Labour[1980] 1 MLJ 191. 98 Kathiravelu Ganesan & Anor v Kojasa Holdings Bhd. 99 CP Mills, Supra n 91 p158. 100 Lobo, B, 'Industrial Relations Act 1967: Evaluation of the Industrial Court in Industrial Relations,; [1986] 1 CLJ pp 152 -154. His advocacy is far reaching in that he wants both the Department and the Minister of Labour to cease acting as a mere conduit to refer unresolved trade disputes to the court. He advocates the parties directly report to the Court any unresolved disputes, and conciliation should come subsequently, not before as it is now. 101 The Star, 29 August 1993. To gain some idea of the time taken by the Industrial Court to commence hearing and settling a collective bargaining case it may be noted that in 1993, of the eight collective bargaining cases affecting a few thousand workers five took four to six months while the rest took 10-16 months. Actual commencement of the hearing of a collective bargaining case took two to three months after the date of mention had been fixed by the court. 102 Section 30(3) of the IR Act states: 'The Court shall make its award without delay and where practicable within thirty days from the date of reference to it'. 103 The New Straits Times, 15 November 1987. The suggestion was made by the MTUC president, Zainal Rampak. 104 CP Mills, supra n 91, p 154. 105 Ibid. Award no 134 of 1977. 106 Hotel Equatorial (M) Sdn Bhd v National Union of Hotel, Bar & Restaurant Workers (Award 14 of 1982) involved a point of law regarding whether trade dispute defined under section 2 of the Act included bargaining demands for notice-board and check-off of union dues. 107 Anantaraman, Singapore Industrial Relations System, n 95 p 141-142. The Industrial Arbitration Court is not bound to the formality or to the rules of evidence followed in an ordinary court of law. The parties in proceedings before the court are entitled to speak through representatives, but these representatives must not be advocates or solicitors unless the court gives leave in proceedings in which the Attorney General has intervened. Ordinarily the representatives must be officers of employee or employer organizations, or Industrial Relations Officers of the Ministry of Labour selected by them or employees. In this way it is hoped that the relative informality of the court may be maintained by minimizing the interposition of legal technicalities and that the cost of representation may be kept low. The procedure, although clearly established to achieve fairness and efficiency, is relatively informal. Members of the bench may interrupt a presentation to ask questions or to clarify certain points, and representatives of the parties may address questions to the bench. Members of the bench may assist representatives in their presentation by making suggestions concerning the best way to handle certain matters. Ample opportunity is given to the parties to prepare their cases and to be heard. The rules limiting the length of debate are extremely flexible. Only when the material pre-

sented is clearly irrelevant or unnecessarily repetitive will a speaker be required to stop The general attitude seems to be to allow the parties to talk as long as there is any possibility of adding anything that will shed light on the problem. The court has devised its own procedures according to the powers granted to it. It may hear and determine a trade dispute in the absence of a party who has been served notice to appear. It may inspect premises; it may refer a matter to an expert and accept his report as evidence. In general, the court may do all things necessary for an expeditious and just determination of a trade dispute. 108 The New Straits Times, 21 March 1991 Shanmugam, the Secretary-General of the Malaysian Labour Organization said that currently, workers spend between RM1000 and RM5000 each in legal fees and may have to spend close to RM10000 if the case is sent to the High Court or the Supreme Court. Employers who are able to allocate legal fees have no fear of appealing right up to the Supreme Court but it would be extremely difficult for the financially strapped worker. 109 The New Straits Times, 20 March 1991. 110 The New Straits Times, 16 December 1987. 111 Report of the National Commission on Labour, Ministry of Labour, Government of India, 1969, p 320. 112 The New Straits Times, 30 April 1991. 113 The New Straits Times, 10 January 1996. 114 Section14(2)(d) of the Industrial Relations Act stipulates as follows: (2) (a) (b) (c) and (d) A collective agreement shall set out the terms of the agreement and shall where appropriate. .... .... .... Unless there exists appropriate machinery established by virtue of an agreement between the parties for the settlement of disputes, prescribe the procedure for the adjustment of any question that may arise as to the implementation or interpretation of the agreement and reference of any such question to the court for a decision.

115 V Anantaraman. Supra n 38 p 110. 116 Aliah bt M Yasin v Chartered Bank, supra n 17. 117 Said Dharmalingam, supra n 23. 118 Hong Leong Equipment, supra n 13. 119 Lobo, B, 'Security of Tenure in Employment -- Constitutional and Proprietary Rights of Employees' [1996] 3 MLJ cxviii at p cxxi. Section 20(1) of the Act does not create a cause of action but provides a remedy for pre-existent cause of action, namely, the workman's right not to be unfairly dismissed. Where do we find the cause of action? We cannot find it at common law because common law only recognizes unlawful dismissal not unfair dismissal. Statutory law could provide for it but s 20(1) does not contain this right unlike the United Kingdom where it has been provided for in the Employment Protection (Consolidation) Act 1978. Specifically s 54(1) of this Act stipulates that 'in every employment to which this section applies...every employee shall have the right not to be unfairly dismissed by the employer'. However, this lacuna in respect of a cause of action was sought to be overcome through an involved interpretation of Art 5(1) of the Supreme Law of the land, the Federal Constitution of Malaysia. (Specifically Lobo argued that when the cause of action is not available, either at common law or at statutory law, one could look for it in the constitutional law of countries with written constitutions; in fact, such a right not to be unfairly dismissed is enshrined in Art 5(1) of the Federal Constitution of Malaysia.) 120 Dr Mohammad Shabbir, 'Approaches to Understanding the Nature of Social Justice: A Jurisprudential Discourse (Ambedkars' Perspective)' [1999] 5 CLJ i. This article illuminates the concept of social justice from the perspective of disadvantaged people in society. 121 This is notwithstanding the need for our reviewing courts not to forget that what they are called upon to review are not decisions by ordinary courts of law but by the Industrial Courts. It is appropriate to repeat Mill's observation on the role of the Industrial Courts '...It is of essence of the industrial arbitration jurisdiction that the court is to decide...What are to be the rules which will govern the future relations between the parties. This is to be contrasted with the traditional function of the court which is to apply the already established rules ...to the existing or past relations between the parties'. (CP Mills, supra n 91 at p 163).