Ika Works (Asia) Sdn. Bhd. v 1. ) Mahkamah Perusahaan Malaysia (WA-25-337-11/2018)

FABIAN DAMIAN ESPECKERMAN …RESPONDEN-RESPONDEN (PASSPORT NO. C4K50LZTP) 2 GROUNDS OF JUDGMENT INTRODUCTION [1] This is the Applicant’s application for judicial review which seeks inter-alia for the followings:

1.1 That the Applicant be granted leave to file an application for judicial review for an order to quash the 1st Respondent’s (“Industrial Court”) decision given in Award No. 2112 of 2018 dated 4.9.2018 (the Award).

1.2 That the Applicant be granted leave to apply for an order for certiorari to quash the Award.

1.3 That the Applicant be granted leave to apply for an order for mandamus directing the Industrial Court Case No. 7/4- 285/15 to be remitted back to the Industrial Court for re-adjudication before different Chairman of the Industrial Court.

1.4 If necessary, further orders and directions be given.

1.5 Costs in the cause.

1.6 Other reliefs which is deemed fit and proper by the court. BRIEF FACTS [2] The 2nd Respondent (“the Claimant”) commenced employment with the Applicant (“the Company”) on 1.4.2002 as a Regional Sales Manager drawing a monthly basic salary of RM5,000.00. Vide a commercial agreement dated 17.10.2011 between IKA Works 3 Guangzhou and the 2nd Respondent, the 2nd Respondent was appointed as an agent of IKA Works Guangzhou to promote the sale of the products in China. [3] Although the 2nd Respondent was an agent for IKA Works in Guangzhou, the Applicant still maintained the 2nd Respondent in his position as Senior Regional Sales Manager in representing the Company. [4] Sometime in April 2012, the 2nd Respondent received instructions from IKA Works headquarters in Germany that he was to report back for duty in the Company on October 2012. The 2nd Respondent duly complied with the instructions. [5] Vide letter dated 1.10.2012, the Applicant issued the 2nd Respondent a letter of appointment whereby the 2nd Respondent was to commence as Senior Regional Sales Manager South East Asia drawing a monthly basic salary of RM13,300.00. [6] Subsequently, the Applicant has been issued with a show cause letter dated 18.11.2013 which requires him to give explanation to the allegations contains therein. The 2nd Respondent was suspended from his duties for 2 weeks with immediate effect. [7] The 2nd Respondent then gave his explanation vide his letter dated 22.11.2013. The Applicant however dissatisfied with the explanation given by the 2nd Respondent and hence issued a notice of domestic inquiry together with the charge sheet on 3.12.2013 and requested the 2nd Respondent to attend the said domestic inquiry. Pursuant to the finding of the domestic inquiry panel, the Applicant was served with the termination letter dated 13.12.2013. 4 [8] Subsequently, the Applicant filed a representation to the Industrial Relations Department and the Applicant’s representation was later been referred to the Industrial Court for adjudication and was accordingly registered as Industrial Court Case No. 7/4-285/15. After hearing both parties, the Industrial Court had on 4.9.2018 handed down the said Award whereby it was held that the 2nd Respondent’s dismissal was without just cause or excuse and ordered the Applicant to pay the 2nd Respondent a sum of RM13,766.00 as to compensation in lieu of reinstatement and a sum of RM297,345.60 for backwages to be paid within 30 days from the date of the Award. [9] Dissatisfied with the Industrial Court’s decision, hence the Applicant filed this present judicial review application to challenge the said Award amongst others on the following grounds:

5.1 The dismissal of the 2nd Respondent by the Applicant was due to the misconduct committed by the 2nd Respondent during his employment. As such, the 2nd Respondent was dismissed with just cause and excuse.

5.2 The Industrial Court has make an irrational conclusion in arriving to the said Award and had ignored the substantive justice. [10] FINDINGS OF THE COURT The Federal Court in Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629, FC has set out the function of the court in an application for Judicial Review and the correct test to be applied in reviewing findings of fact made by the Industrial Court, to be as follows: "[15]...... Historically, judicial review was only concerned with the decision making process where the impugned decision is flawed on the ground of 5 procedural impropriety. However, over the years, our courts have made inroad into this field of administrative law. Rama Chandran is the mother of all those cases. The Federal Court in a landmark decision has held that the decision of inferior tribunal may be reviewed on the grounds of "illegality", "irrationality" and possibly "proportionality" which permits the courts to scrutinize the decision not only for process but also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds. [16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts' liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Peransang Selangor Bhd v. Zaid Mohd Noh [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate. [17] The Federal Court, in Petroliam Nasional Bhd v. Nik Ramli Nik Hassan [2003] 4 CLJ 625, again held that the reviewing court may scrutinise a decision on its merits but only in the most appropriate of cases and not every case is amenable to the Rama Chandran approach. Further, it was held that a reviewing judge ought not to disturb findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to the same conclusion. [18] The Court of Appeal has in a number of cases held that where finding of facts by the Industrial Court are based on the credibility of witnesses, those findings should not be reviewed (see William Jacks & Co (M) Sdn BHd v. S Balasingam [1997] 3 CLJ 235, National Union of Plantation Workers v. Kumpulan Jerai Sdn Bhd (Rengam) [2001] 1 CLJ 681, Quah Swee Khoon v. Sime Darby Bhd [2001] 1 CLJ 9, Colgate Palmolive (M) Sdn Bhd v. Yap Kok 6 Foong & Another [2001] 3 CLJ 9. However, there are exceptions to this restrictive principle where:

reliance upon an erroneous factual conclusion may itself offend against the principle of legality and rationality, or

there is no evidence to support the conclusion reached. (See Swedish Motor Assemblies Sdn Bhd v. Hj. Md Ison Baba [1998] 3 CLJ 288). [19] It is clear from the above authorities that the scope and ambit of Rama Chandran had been clearly explained and clarified. Decided cases cited above have also clearly established that where the facts do not support the conclusion arrived at by the Industrial Court, or where the findings of the Industrial Court had been arrived at by taking into consideration irrelevant matters, and had failed to consider relevant matters into consideration, such findings are always amendable to judicial review".(Emphasis added) [11] In the case of Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers [1991] 1 MLJ 417, the meaning of “unreasonableness” was stated at page 422: “The third ground is nothing more than a repetition of the second ground but in relation to all five charges and worded so as to include all the incidents of the doctrine of ultra vires, ie cases of excess or lack of jurisdiction and unreasonableness in the broad sense as expounded by Lord Greene in Wednesbury Corp [1948] 1 KB 223, to give the appearance of a formidable ground. What it really amounts to is that in arriving at its conclusion and decision on the five charges the Industrial Court acted in excess of its jurisdiction or in other words ultra vires and therefore a nullity. Lord Reid's speech in Anisminic v Foreign Compensation Commission [1969] 2 AC 147 at p 171 is relevant: It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and I have come to the conclusion that it 7 is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. (Emphasis added.) So is Lord Green MR's speech in the Wednesbury Corp case [1948] 1 KB 223 at p 229, explaining the meaning of 'unreasonableness' in its broad or comprehensive sense: I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty – those of course, stand by themselves – unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent. For instance, we have heard in this case a great deal about the meaning of the word 'unreasonable'. It is true the discretion must be experienced reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. (Emphasis added.) [12] From the above authorities, it is clear that an application for judicial review would not be granted unless it can be conclusively established that the impugned decision suffers from any of the following infirmities: 8 12.1 Illegality - that the decision-maker had failed to keep strictly within the perimeters of its powers;

12.2 Irrationality - “Wednesbury unreasonableness” – that the decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it; and 12.3 Procedural Impropriety - that the decision-maker failed to observe basic rules of natural justice and/or procedural rules. [13] PRELIMINARY ISSUE The 2nd Respondent submits that the Applicant’s Statement at paragraph 3 (a) and (b) pursuant to Order 53 Rule 3 (2) of the Rules of Court 2012 (ROC 2012) are too general in nature for this court to exercise its supervisory power. Order 53 Rule 3(2): “(2) An application for leave must be made ex parte to a Judge in Chambers and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on.” [14] The court refers to paragraph 3 (a) and (b) of the Applicant’s grounds for the application as follows: “a) Pemberhentian Responden Kedua oleh Pemohon adalah disebabkan kesalahan-kesalahan yang dilakukan oleh Responden Kedua semasa bekerja dengan Pemohon. Responden Kedua telah ditamatkan perkhidmatan dengan sebab dan alasan yang adil. 9 b) Pengerusi Mahkamah Perusahaan telah mencapai kesimpulan yang tidak rasional dalam membuat keputusannya. Di samping itu, keadilan substantif langsung tidak diendahkan.” [15] The Court of Appeal in Sunway University College v Mahkamah Perusahaan Malaysia & Anor [2019] 7 CLJ 55, 66, CA the court held: “[34] It is a cardinal requirement that the claimant must set our her grounds clearly in the statement supported by sufficient details comprehensive particulars of the facts and matters which the claimant sought to rely on (see Ong See Teong & Anor v Tenaga Nasional Berhad [2007] 1 LND 661; [2008] 5 MLJ 717. The above general averments were not supported by any particulars and thus were insufficient to warrant a review on the merits by the High Court.” [16] As a matter of general principle, the Applicant could only rely on the grounds and relief that were set out in the Statement. It is also fatal for the Applicant to raise new grounds of challenge in the affidavits in support or tendered via oral or written submission at the later hearing stage. It is insufficient for the Applicant to state merely that the exercise by the Industrial Court is illegal, unreasonable or other commonly acceptable grounds without linking to the specific or particular facts alleged. The affidavits are only to verify the facts relied on by the Applicant. The court is not duty-bound to fill in the gaps left open by the Applicant. [17] The essence of the Applicant’s 1st ground of judicial review is that the dismissal of the 2nd Respondent by the Applicant was due to the misconduct committed by the 2nd Respondent during his employment. As such, the 2nd Respondent was dismissed with just cause and excuse. [18] There were seven (7) charges levelled against the 2nd Respondent on the alleged misconduct committed by the 2nd Respondent. The 10 Federal Court in Milan Auto Sdn. Bhd. v Wong She Yen [1995] 4 CLJ, 454, 455, FC has held that in dismissal cases on reference under Section 20 of the Industrial Relations Act 1967 (IRA 1967), it is the duty of the Industrial Court firstly to determine whether the misconduct complained of by the employer has been established and secondly, to determine whether the proven misconduct constitutes just cause or excuse for the dismissal of the employee. The standard of proof required is the civil standard based on balance of probabilities (see Telekom Malaysia Kawasan Utara v Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ, 314, CA). [19] There were 4 witnesses gave evidence on behalf of the Company and the 2nd Respondent by himself. The Industrial Court heard all the witnesses and made its own finding of fact that the Applicant had failed to prove, on a balance of probabilities, that the 2nd Respondent’s dismissal was just cause or excuse. [20] The learned Chairman had thoroughly scrutinized on each of the charges preferred against the 2nd Respondent and gave her reasons for doing so. The learned Chairman at paragraph 61 of the Award also clearly stated that she had taken into account the totality of the evidence adduced by the parties before making the Award. [21] At this juncture it is pertinent to refer the charges preferred against the 2nd Respondent. CHARGE 1 “That you had refused, without justification, to comply with the specific instruction of the Management by drawing up the Distributor Agreement dated 7th March 2013 under the Company letterhead containing terms and conditions without the Management’s prior approval, even though you had already been provided with the 11 Distributor Agreement via email by your superior, Director of Sales (Lab), Mr.Tristan Chong on Friday, February 08, 2013 at 3.56 pm.” The Company contended that the said draft Distributor Agreement had clearly indicated that it was to be signed by the Managing Director of the Company, one Tobias Amann (COW4) and the 2nd Respondent jointly, but however it was only signed by the 2nd Respondent and the Managing Director of Lesoshoppe, one Andy Goh. The Company alleged that the 2nd Respondent was not given the authority to sign any agreement solely, be that a Distributor Agreement or otherwise. [22] The learned Chairman of the Industrial Court at paragraph 24-28 of the Award made her finding of fact as follows:

The 2nd Respondent had received instruction to draft the Distributor Agreement and the instructions could be drawn from the series of email correspondence between COW-4 and Andy Goh, the Managing Director of Lesoshoppe Sdn. Bhd. The Company’s Human Resource Manager (COW-2) in her evidence agreed that the 2nd Respondent had authority to include terms as agreed by parties as authorized by COW-

Based on those emails, the 2nd Respondent had the authority to prepare and conclude the Distributor Agreement based on negotiations. COW-2 also agreed that the email sent by COW-2 did not give any specific instruction to the 2nd Respondent that the Distributor Agreement shall use the Company’s letterhead as described in charge 1.

(ii) The email dated 8.2.2013 which was sent by COW-1 would show that there was no specific instruction from COW-1 to the 2nd Respondent on drafting the Distributor Agreement 12 based on the format given. Further, COW-4 had given the 2nd Respondent further instruction to draft the Agreement according to the terms agreed by both parties. COW-4’s email dated 9.2.2013 had clearly stated that if Andy Goh was agreeable to the terms stated therein, the 2nd Respondent would prepare the Agreement accordingly, which was clearly an approval from the management of the Company.

(iii) According to COW-3, the finding of guilt for charge 1 was solely based on the SOP and the said SOP was not produced at all during trial before the Industrial Court. It was right for the Industrial Court to conclude that, since the SOP was not produced, the alleged breach under the SOP was not proven by the Applicant. [23] CHARGE 2 “That you on 7th March 2013, you have committed an act which exceeded your authority by signing the Distributor Agreement with M/S Lesoshoppe Sdn Bhd by using your own personal agreement terms even though you knew that you were not authorized to deviate from the contract terms without obtaining prior approval from the Management.” The Industrial Court in its Award make a finding of fact that the 2nd Respondent was the sole signatory, in which he signed in the presence of COW-1, in the Guangzhou Agreement. COW-1 admitted that the Managing Director of Leso Instruments (M) Sdn. Bhd. and Lesoshoppe Sdn. Bhd. was the same person, i.e Andy Goh and that the companies are related and within the same group of companies. Most importantly, COW-1 had admitted that the 2nd Respondent as Regional Sales Manager had the authority to sign the agreement. It is right for the Industrial Court to conclude that the Company’s allegation that the 2nd 13 Respondent had used his own personal agreement terms are unfounded. [24] CHARGE 3 “That on 7th March 2013, you had committed an act where you have willfully and deliberately concealed from the Management the said Distributor Agreement executed between you and M/S Lesoshoppe Sdn. Bhd. in Wisma Leso, which was only discovered by the Management in June 2013.” The evidence of COW-1, COW-2 and COW-4 clearly showed that they had discovered 2 similar Agreements which was without the word “current” and another with the word “current”. The Company’s witnesses in their evidence alleged in the Distributor Agreement, the 2nd Respondent inserted fixed prices based on existing 2013 price up to December 2013 as the word “current” is used. Instead it ought to be a price with the right reserved to change with prior notice. They also discovered that there was another Distribution Agreement with Lesoshoppe Sdn. Bhd. which is without the word “current”. Both the said Agreements were found in the Company’s premises. Subsequently, the Company made its own conclusion that the 2nd Respondent had deceived the Company. COW-1 admitted in his evidence and said “it was clear the Claimant had intended to deceive the Company”. [25] There was no evidence from the Applicant to show the purported act of concealing willfully and deliberately done by the 2nd Respondent. The Industrial Court was not erred when she found that there was no evidence to show how these Agreements were concealed by the 2nd Respondent and it was only a mere assumption based on their understanding. The Industrial Court in its Award at paragraph 36 stated that the Company must prove the charge and not just rely on a mere suspicion as admitted by COW-1. 14 [26] CHARGE 4 “That on 7th March 2013, you had willfully inserted a fixed price based on the existing 2013 price list up to December 2013 in the Distributor Agreement with M/S Lesoshoppe Sdn. Bhd. even though you are fully aware and have knowledge that the Company would normally reserve the right to fix new price rate at any time by providing three months’ notice to the other party. Your action by inserting a fixed price has exposed the Company to economic loss (existing and future) The Industrial Court at paragraph 38 of its Award referred to the proviso on the validity or prices as shown in the Company’s normal price list. The 2013 price list (at the bottom of the price list) had clearly stated: “Validity of prices The prices in this list are recommended prices only. We reserve the right to replace this price list with a new, subsequent list as a response to changing circumstances; this right also applies if the printed price is a blatantly obvious printing error.” The plain reading of the proviso showed that the prices in the list are recommended prices only and the Company had the right to replace the price list with a new one. COW-4 agreed that the Company had a right to change the prices in the 2013 price list and also agreed that Lesoshoppe Sdn. Bhd. knew that the prices were not fixed because of the validity clause in the Agreement. The price list also did not show a fixed price and this was admitted by the evidence of COW-2. [27] The Industrial Court did not err when she conclude that the word “current” would not make a difference; and that if a customer insisted on a fixed price, the Company could always rely on that clause to change prices to the latest price list. [28] There was no prove that the 2nd Respondent’s action by inserting a fixed price has exposed the Company to economic loss (existing and 15 future). It was merely an assumption and there was no cogent evidence to support the Applicant’s averment. [29] CHARGE 5 “That on 2 October 2013, at 11.00 am in the Videoconference room, you had conducted yourself arrogantly and disrespectfully towards your superior by raising your voice towards him during a discussion with our customer Lesoshoppe Sdn. Bhd. on a Certificate of Origin, even though you were reminded several times by the Managing Director, Lab to lower your voice.” It was the evidence of COW-2 who testified that she had personal knowledge about the alleged misconduct by the 2nd Respondent in Charge

Nevertheless, COW-2 could not describe the 2nd Respondent’s arrogant and disrespectful conduct because she was not present in the meeting. COW-2 was told by the Managing Director that the 2nd Respondent had raised his voice repeatedly even though he was asked to lower down his voice. [30] The 2nd Respondent had explained that if it was a misunderstanding during the discussion, the 2nd Respondent had apologized for his misconduct. The Industrial Court in its Award at paragraph 50 has clearly stated that there was no evidence led by COW-4 regarding him asking the 2nd Respondent to lower down his voice or acting rudely to the superior. The Company only had COW-2’s evidence which was not conducive enough to satisfy the Industrial Court on Charge 5. Therefore, it was not wrong for the Industrial Court to give the benefit of doubt to the 2nd Respondent. [31] CHARGE 6 “That you have been habitually sleeping during working hours: 16 a. 21st August 2013 at 1.10 pm at your work station; b. 4th October 2013 at 11.00 am, in Videoconference Room during internal sales meeting; and c. 29th October 2013 at 11.30 am during sales meeting. COW-2 in her evidence admitted that there were 3 witnesses who witnessed all the habitual sleeping of the 2nd Respondent. The only witness produced by the Company for c Charge 6 was COW-4 and yet there was no evidence from him to support the Company’s assertion. No explanation was given by the Company as to why the other two witnesses were not produced during the trial even though the Company found that the 2nd Respondent’s conduct was serious. The Industrial Court has rightly made an adverse inference against the Company for not calling the witnesses as its witnesses. [32] CHARGE 7 “That on 25 September 2013 at 11.00 am during Sales discussion with UP Marketing in the Videoconference Room, you had disobeyed the instructions to defend the interest of the Company regarding discount and pricing structure exceeding USD700K.” It was the 2nd Respondent’s evidence that in September 2013, UP Marketing was asking to extend the 42% discount as per 2012 agreement for the 2013 stock orders. However, the Company had turned down the UP’s request for the discount. Thereafter, the 2nd Respondent informed the management of the Company that he can closed the 2013 stock orders, if the Company continued to give the client the 42% discount and instead of losing the orders. COW-4 was not agreeable to the 2nd Respondent’s suggestion. The Company disagreed; the clients request was denied and the 2nd Respondent suggestion was ignored. 17 [33] The 2nd Respondent contended that his intention was to generate more sales volume for the Company instead of losing the orders and did not disobey any instruction to defend the interest of the Company. The Company turned down the 2nd Respondent’s suggestion and COW-4 admitted that the deal did not go through as parties could not agree on the discount. COW-4 in his evidence admitted that there is no evidence of the 2nd Respondent supported the client. In fact, the 1st Respondent at paragraph 58 of the Award had clearly stated that the Company had not produce any evidence before the court to explain what was that “instruction given to defend the interest of the Company”. All in all, the Industrial Court accepted the 2nd Respondent’s evidence and stated that the 2nd Respondent’s explanation was reasonable and sensible. [34] This court is of the view that the ruling made by the Industrial Court was entirely based on the finding of fact after hearing and evaluating the evidence of witnesses before the Industrial Court. In Yong Peng Kean v Akira Sales & services (M) Sdn Bhd & Anor [2015] 1 LNS 648, CA the Court of Appeal held that: “[13] It is well settled that appellate courts will not interfere with the finding of facts of the Industrial Court.” [35] In Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd (supra), the Federal Court held: “[17] The Federal Court, in Petroliam Nasional Bhd v. Nik Ramli Nik Hassan [2003] 4 CLJ 625, again held that the reviewing court may scrutinise a decision on its merits but only in the most appropriate of cases and not every case is amenable to the Rama Chandran approach. Further, it was held that a reviewing judge ought not to disturb findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where 18 the reviewing judge might not have come to the same conclusion.” (Emphasis added) [36] Bearing in mind that the Federal Court in the case of Petroliam Nasional Bhd v Nik Ramli Nik Hassan [2003] 4 CLJ, 625,FC Steve Shim CJ (Sabah & Sarawak) in his judgment has reminded us about the function and duties of the Industrial Court under IRA 1967 and held: “The fear of unnecessarily emasculating the functions of the Industrial Court can be laid to rest if the reviewing courts, in the exercise of their powers, constantly bear in mind that the review of the Industrial Court's award on the merits is akin to, though not the same as, the exercise of appellate powers. The courts should also remind themselves that the Industrial Court operates under the Industrial Relations Act 1967, in accordance with principles quite different from those in the civil courts. For example, s. 30(4) and (5) of the Act stipulates:

In making its award in respect of trade dispute, the court shall have regard to the public interest, the financial implications and the effect of the award on the economy of the country, and on the industry concerned, and also to the probable effect in related or similar industries;

The court shall act according to equity, good conscience and the substantial merits of the case without regard to the technicalities and legal form.” The Industrial Court in this case had conducted a detailed review of all facts and evidence, both oral and documentary, presented by the disputing parties. It had drawn inferences from the conduct of the 2nd Respondent and the relevant officers of the Applicant. It then came to the conclusion that the Applicant failed to prove all charges levelled against the 2nd Respondent and made its finding that the dismissal was 19 without just cause or excuse and awarded remedies as provided under the law. [37] The Industrial Court had conducted a detailed review of all facts and evidence, both oral and documentary, presented by the disputing parties. In the instant case, on a careful perusal of the award given by the Industrial Court, this court is unable to detect any substantial flaws in its reasoning or the conclusions therein. This court is of the view that there is no illegality in the finding of the Industrial Court, nor can it be said to be plainly irrational in all the circumstances. On the contrary, a closer perusal of the award shows that there has been a proper appreciation of the facts and law by the Industrial Court. CONCLUSION [38] After having considered the Applicant’s application and submissions by the parties and having regard to the established facts and for the reasons stated, this court takes the view that the conclusion or finding arrived at by the Industrial Court that the 2nd Respondent had been dismissed without just cause or excuse to be reasonable in all the circumstances. [39] The Industrial Court had acted in accordance with the relevant principles prescribed by law. There was no procedural impropriety involved in the decision making process nor could it be said that its finding or conclusion was based on grounds of illegality or irrationality. [40] In the premises, the court dismissed the Applicant’s application for judicial review with cost of RM3,000.00 subject to allocatur. 20 MARIANA BINTI HAJI YAHYA JUDGE HIGH COURT MALAYA (SPECIAL POWERS DIVISION 2) KUALA LUMPUR. DATED: 25 MAC 2020 Counsel for the Applicants Miss Pramjit Kaur, Messrs Mann & Associates, Rawang, Selangor Darul Ehsan. Counsel for the 2nd Respondents Miss S.P Devi, Messrs. A. Rajadurai P. Kuppusamy 7 Co, Petaling Jaya, Selangor, Darul Ehsan. Legislation(s) referred to: Rules of Court 2012 - Order 53 Rule 3(2) Industrial Relations Act, 1967 - s 20, s 30 (4) & (5) Case(s) referred to: 1) Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629, FC. 21 2) Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers [1991] 1 MLJ 417, SC. 3) Sunway University College v Mahkamah Perusahaan Malaysia & Anor [2019] 7 CLJ 55, 66, CA. 4) Milan Auto Sdn. Bhd. v Wong She Yen [1995] 4 CLJ, 454, 455, FC. 5) Telekom Malaysia Kawasan Utara v Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ, 314, CA). 6) Yong Peng Kean v Akira Sales & services (M) Sdn Bhd & Anor [2015] 1 LNS 648, CA. 7) Petroliam Nasional Bhd v Nik Ramli Nik Hassan [2003] 4 CLJ, 625, FC.