Kirba Daisy a/p John Das v City-Link Express (M) Sdn Bhd (W-01(A)-13-01/2018)

MAHKAMAH PERUSAHAAN MALAYSIA ... RESPONDENTS [In the matter of High Court of Malaya at Kuala Lumpur Judicial Review Application No. 25-54-03/2015 Between Kirba Daisy A/P John Das ... Applicant And

City-Link Express (M) Sdn Bhd

Mahkamah Perusahaan Malaysia ... Respondents] CORAM: TENGKU MAIMUN BINTI TUAN MAT, JCA ABANG ISKANDAR BIN ABANG HASHIM, JCA ABDUL RAHMAN BIN SEBLI, JCA JUDGMENT OF THE COURT Brief facts of the case [1] Kirba Daisy a/p John Das, ("the Applicant") joined City-Link Express (M) Sdn Bhd ("the $ 1^{\mathrm{st}} $ Respondent") on 5 February 1990 as a Credit Control Executive. She was subsequently promoted to the position of General Manager on 1 January 2001. [2] During a restructuring exercise on 26 April 2007, the $ 1^{\mathrm{st}} $ Respondent re-designated the Applicant to the position of General Manager of Operations to support the Chief Executive Officer of the $ 1^{\mathrm{st}} $ Respondent. A further restructuring exercise was undertaken by the $ 1^{\mathrm{st}} $ Respondent on 21 January 2008 in relation to the Central Region and the Logistics Department. The Applicant was asked to head these two Departments, where one Mr Steven Chong, the Senior Logistics Manager at the $ 1^{\mathrm{st}} $ Respondent is to report to the Applicant. [3] The working relations between the Applicant and Mr Steven Chong deteriorated and led to an alleged scuffle between them on 15 April 2008 in the corridor outside the Applicant's office. As a result of the scuffle, both of them were suspended on 3 June 2008. A domestic inquiry was held jointly against both of them on 5 June 2008 and 6 June 2008 on three charges. [4] Both were found guilty of conducting themselves improperly, unruly and disrespectfully in the discharge of their duties thus showing a bad example of managerial leadership to their subordinates. That was the subject-matter of the First Charge. Both were demoted. The Applicant was demoted to Senior Manager of the Investigation and Security Department while Mr Steven Chong to Manager of Sea Freight Division of City Link Sea and Air Services Sdn. Bhd. In addition, the Applicant was also found guilty of the Third Charge. [5] The Applicant appealed against her demotion vide her letter dated $ 1^{\mathrm{st}} $ July 2008. The management considered the appeal but decided to maintain its decision. [6] The Applicant then put the $ 1^{\mathrm{st}} $ Respondent on Notice of its breach of the Applicant's contract of employment vide letter dated $ 7^{\mathrm{th}} $ July 2008, giving the $ 1^{\mathrm{st}} $ Respondent seven days to rectify its breach by reinstating her to her previous position, failing which, she would deem that she had been constructively dismissed. [7] The Applicant did not report to the position of Senior Manager, considered herself to have been constructively dismissed by the $ 1^{\mathrm{st}} $ Respondent and she had subsequently filed a representation under section 20 of the Industrial Relations Act 1967 to the Industrial Relations Department. [8] The representation was referred to the Industrial Court ("the $ 2^{\mathrm{nd}} $ Respondent") for adjudication. On $ 10^{\mathrm{th}} $ December 2014, the $ 2^{\mathrm{nd}} $ Respondent decided that the Applicant has failed, on a balance of probabilities, to show that she was constructively dismissed by the $ 1^{\mathrm{st}} $ Respondent and therefore, there was no constructive dismissal and that the Applicant had resigned on her own volition. [9] Dissatisfied by the decision, the Applicant filed an application for Judicial Review in the High Court. Finding of the High Court [10] The learned High Court Judge ("HCJ") in dismissing the Applicant's application, concluded in paragraph 21 of her Grounds of Judgment that: [21] The Industrial Court has decided that from the evidence, the conduct of the applicant warranted the disciplinary action against her, as well as Mr. Chong over the scuffle. Having made a finding of guilt against the applicant over the misconduct, it is within the powers of the 1st respondent to demote her. The same cannot be said to be a claim for constructive dismissal as it cannot be said that the 1st respondent had acted in breach of a fundamental term of the contract of employment." The Appeal [11] The Applicant's continued frustration brought her to the Court of Appeal. We heard her appeal on $ 2 2 ^{n d} $ November 2018 and we had unanimously allowed the appeal with costs of RM 15,000.00 for here and below. We set aside the decision of the High Court dated $ 4^{th} $ October 2017 and we also made an order for parties to go back to the $ 2 ^{n d} $ Respondent for assessment of damages. [12] Before arriving at our decision, we had considered the issues raised and submissions by parties before us. The Applicant had submitted according to the Charges preferred against her. Therefore, it is prudent to have the said Charges laid down here, as follows: First Charge: That on 15th April 2008, at approximately 12.00pm to 1.00pm, in the afternoon, you Madam Kirba Daisy and another Mr. Steven Chong Deng Hoe, being managers of the Company have conducted yourselves improperly, unruly and disrespectfully in the discharge of your duties, thus showing bad examples of managerial leadership to subordinates. Second Charge: That on 15th April 2008, at approximately 3.00pm, you have reported at the Ibu Pejabat Polis Daerah, Shah Alam of an incident between you and Steven Chong Deng Hoe that happened in the company premises, without exhausting internal remedy, thus bringing bad image to the good name of the company. Third Charge: That on 6th May 2008, you have caused to issue a legal letter by your Lawyer's against Steven Chong Deng Hoe on an internal e-mail, which matter is being investigated by the Company, thus causing unnecessary fear to your fellow manager, Mr. Steven Chong Deng Hoe and total disregard to company's investigation process. [13] It has to be noted that despite the action was taken against the Applicant as stated in paragraph 4 above, the Panel of the Domestic Inquiry found the Applicant guilty only for the First and Third Charges. [14] Therefore, before us, for the First Charge, the Applicant's complaint was that she had not acted in an unruly manner by being involved in the scuffle, that there was no scuffle and that instead she was being pushed by Mr Steven Chong while she was only doing her job i.e. the investigation on the pallets/boxes being sold to a $ 3 ^{rd} $ party without her knowledge and that of the Management of the Company. [15] In respect of the Third Charge, the Applicant submitted that the said charge was a baseless one. Mr Steven Chong had defamed her by alleging her as "Trouble Instigator & Actress" via an email dated $ 1 6^{th} $ April 2008. Despite that fact, the company did not take any action against him. Therefore, it was not wrong for the Applicant to file suit against Mr Steven Chong when there was no action taken by the company despite her complaints. [16] The 1 $ ^{st} $ Respondent, on the other hand contended that with the full knowledge of strained working relationship between the Applicant and Mr Steven Chong, the Applicant's action in doing investigation about the pallets at his back and refused to return the log book when demanded could only serve to provoke Mr Steven Chong into losing his cool. The act also demonstrated malice on the part of the Applicant as an attempt to get him into trouble especially when she lodged a police report against Mr Steven Chong. The 1 $ ^{st} $ Respondent also highlighted that the Charges against the Applicant was for conducting herself improperly, unruly and disrespectfully in discharging her duties, thus showing examples of bad managerial leadership to her subordinates. Not only the Applicant who was subjected to domestic inquiry, but Mr Steven Chong also faced the same charge as well. In fact, while the Applicant was found guilty for only the First and Third Charges, Mr Steven was found guilty of all charges he was charged with. Instead of dismissing both of them, the management decided to demote both of them which the 1 $ ^{st} $ Respondent has every right so to do. There was therefore no unreasonable conduct on the part of the $ 1^{\mathrm{st}} $ Respondent that would amount to a fundamental breach of the implied term of mutual trust and confidence. Our deliberations and findings [17] We noted that the basis for the $ 1^{\mathrm{st}} $ Respondent's action against the Applicant in respect of the First and Third Charges had been premised upon its findings of fact, in particular in respect of the First Charge. A lot depended on the finding by the $ 1^{\mathrm{st}} $ Respondent as to what had happened on the corridor between the Applicant and Mr Steven Chong. The $ 1^{\mathrm{st}} $ Respondent had found that there was a scuffle between them. This finding was disputed by the Applicant, who had contended all along that in fact no scuffle had occurred between them. The Applicant continued with that contention before us. [18] Until quite recently, the appeal Court or review Court could not disturb the findings of fact by the Industrial Court. But, in 2010 such religious adherence to that non-interference policy was abandoned by the apex Court in the case of Ranjit Kaur S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629. In departing from the long held principle of giving due deference to the findings of fact made by the trial tribunal, the apex Court has this to say: [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. Balasingam [1997] 3 CLJ 235, National Union of Plantation Workers v. Kumpulan Jerai Sdn Bhd (Renggam) [2000] 1 CLJ 681, Quah Swee Khoon v. Sime Darby Bhd [2001] 1 CLJ 9, Colgate Palmolive (M) Sdn Bhd v. Yap Kok Foong & Another Appeal [2001] 3 CLJ 9. However, there are exceptions to this restrictive principle where: (a) reliance upon an erroneous factual conclusion may itself offend against the principle of legality and rationality, or (b) 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] The contention of the Applicant before us had required us to peruse through the evidence to look and see whether the learned Chairman of the Industrial Court's finding on the matter of 'scuffle' in respect of the First Charge, which was affirmed by the learned HCJ was indeed a correct one, in the circumstances. [20] At this juncture, it must be recalled that the Applicant's version as to what had happened along the corridor was that she was at all material times a victim of an assault by Mr Steven Chong. For this, we had to look at the relevant evidence and not simply believe the Applicant's contention just because she had said so. Upon due perusal of the appeal record, in particular, the notes of proceedings before the Industrial Court, we noted the evidence of the CLW2, Sumathy a/p Gengadurai, who testified that she saw Mr Steven Chong chasing after the Applicant and demanded that she returned the log book that she had obtained from CLW2 who had earlier obtained it from Mr Rajan. It was her further testimony that Mr Steven Chong managed to snatch the book from the Applicant's hands and that Mr Steven Chong also pushed her against the glass door along the corridor outside her room. We now reproduce that part of the evidence of CLW2, given in the course of her examination-in-chief, like so: "45. What happened you went into Miss Daisy office followed by Steven? - Miss Daisy was coming out of her room with the book, then Steven reached her and angrily asked for the book.

When did this incident take place? - Just outside her room. - 47. What happened then? - Mr Steven pushed her backwards and he wanted to pull away the book from her. He shouted "give me back the book and don't interfere in my operations and duties." He uttered the word crazy lady.

When Mr Steven pushed the Claimant did she fell? -She almost felled but she leaned against the glass door.

Who started this commotion at this place? -Mr. Steven Chong." [21] Further in her testimony, CLW2 was asked, "Apart from pushing the Claimant, did Steven assault her? -He raised his hand like he wanted to beat her but he didn't." [22] Those are the evidence of CLW2 in so far it relates to the incident involving the Applicant and Mr Steven Chong at the corridor, given in her examination-in-chief, on the day in question, namely the 15 April 2008. (See, pages 103-104 Common Core Bundle ("CCB")). [23] Naturally, the next question that needed to be asked must be this, "was this testimony challenged in material particular by the $ 1^{\mathrm{st}} $ Respondent?" A perusal of the cross-examination of CLW2 had revealed that only two questions were raised that would tend to relate to that damning portion of CLW2's testimony in respect of Mr Steven Chong's conduct against the Applicant. At page 108 of CCB, the following appears: "41...The incident outside the Claimant's office. Top Box last paragraph. Is it here it happened? -Yes, I also saw Steven pulled away the book.

..Did the Claimant say why acting like "samseng". I'll go make police report... -Yes." [24] Now, an objective appreciation of the above evidence that was elicited from the cross-examination of CLW2 would result in an irrefutable conclusion that the testimony of CLW2 must necessarily be that there was no 'scuffle' and that what had happened was that the Applicant was assaulted by Mr Steven Chong who was bent on getting the log book away from the Applicant, who had the right to have sight of its contents as it was connected with alleged improper sale to third parties, of pellets/boxes belonging to the $ ^{1 \mathrm{st}} $ Respondent. It could hardly have amounted to an effective challenge of Ms Sumathy's testimony on the extent of Mr Steven Chong's behaviour towards the Applicant on the day in question. It was also admitted by the witnesses for the $ 1^{\mathrm{st}} $ Respondent that the Applicant would be responsible should there be misappropriation of such property belonging to the $ 1^{\mathrm{st}} $ Respondent. This was borne out from the testimony of COW2, Mdm Lee Hwee Leng during her cross-examination, at page 116 of the CCB, like so: "9. Do you agree that the Claimant is responsible if there is any misappropriation of the Company's properties in the Logistic Department? [25] In short, the Applicant was discharging her obligations as senior official of the $ 1^{\mathrm{st}} $ Respondent in protecting the latter's properties from being improperly pilfered, albeit by its own employees. [26] This unchallenged testimony of CLW2, in our view, goes to the roots of the First Charge against the Applicant. A failure to cross-examine a witness of the adverse party, on a material factual circumstance must mean that such fact is accepted. [See, Wong Swee Chin v PP [1980] 1 LNS 138]. But yet, the Industrial Court Chairman in paragraph 23 of his award found that there was a 'scuffle' that he said could be attributed to the hostile relationship between the Applicant and Mr Steven Chong. He concluded at paragraph 23, by stating as follows: "Thus this Court agrees with the Company's submissions that the Company did not act unreasonably when it decided to discipline both the Claimant and Mr. Chong." It must be borne in mind that the First Charge had been concerned with a specific incident on the specified date as mentioned in the said charge. It had referred to a scuffle. That word would necessarily and ordinarily connote an altercation between two persons, involving an equally active participation by both persons involved. It is in this connection that the evidence of CLW2 assumed great significance. From such evidence, it was clear that it was a one-way traffic all the way. The Applicant was pushed and she had almost fallen to the ground but for the intervention of the glass door that had broken the fall. Mr Steven Chong had raised his hand like wanting to beat her up but to his credit it must be said, he did not follow through. The fact that the Applicant was the victim could not be ignored in the circumstances. Even if there was a hostile relationship between the Applicant and Mr Steven Chong, that could not be a valid reason for Mr Chong to treat the Applicant in the manner that he did. In fact, in labour law jurisprudence, an assault by a subordinate against his superior would invariably entail a summary dismissal from employment of the perpetrator. [27] It was clear to us that the Applicant was a victim of an assault by Mr Steven Chong, who was a subordinate of the Applicant. There was no scuffle, and therefore, the Applicant did not conduct herself in a manner that was unruly and disrespectfully thereby showing bad examples of managerial leadership to subordinates. Looking at paragraph 23 of his Award, the learned Chairman did not exhibit any reference to the evidence of CLW2 and how he had addressed the implication of the substantial rebuttal effect of her evidence on the element of 'scuffle' in the First Charge. Clearly, his finding was made without taking into account relevant consideration, otherwise, against the weight of uncontroverted evidence, in particular of CLW2. On that ground, the First Charge was not made out against the Applicant by the $ ^{1 \mathrm{st}} $ Respondent. [28] As regards the Third Charge, we could not agree with the finding of the Industrial Court tribunal that had militated against the Applicant. The circumstances surrounding this charge may be described as follows. From the evidence, it was not disputed that Mr Steven Chong had called the Applicant as a "Trouble Instigator & Actress". The Applicant had taken umbrage at this and considered such remark as defamatory and a blemish against her character. In light of such circumstance, would it be unreasonable for a person circumstanced as the Applicant to take action against Mr Steven Chong, who in the estimation of the Applicant had defamed her? It must be borne in mind that the 1 $ ^{st} $ Respondent did not take action on the complaint lodged by the Applicant pertaining to allegations that Mr Steven Chong had made defamatory remarks against her. On top of that the impugned email by the Applicant was not copied to the 1 $ ^{st} $ Respondent. It was sent to Mr Steven Chong only for his notice of an impending legal action against him. The Applicant was clearly exercising her private rights to vindicate a perceived wrong against her which the 1 $ ^{st} $ Respondent, to her mind, was not able to provide. Learned counsel for the 1 $ ^{st} $ Respondent did not show us evidence to the effect that the Applicant was prohibited from enforcing her private rights while in the employment of the 1 $ ^{st} $ Respondent. Neither had it been shown in evidence that the Applicant was mandatorily obliged to exhaust all internal remedies and mechanisms before she could launch a legal action in order to enforce any of her private rights by suing another individual although that person may be her fellow co-worker in the employment of the 1 $ ^{st} $ Respondent. Indeed, it was rather telling to us that COW2 did not give any answer when she was cross-examined on this matter as could be seen at pages 121-122 of CCB, in relation to questions nos. 26 and 27. The Applicant had taken legal action against Mr Steven Chong in his personal capacity. On top of it all, the 1 $ ^{st} $ Respondent was never cited or named as a party in the legal notice. We could not see how the $ 1^{\mathrm{st}} $ Respondent could mount the Third Charge against the Applicant given the factual matrix of this case. [29] In that regard, we reproduce the notes of evidence in relation to the Third Charge emanating as it were, from COW3, Tan Ah Bah (David Tan). He was the husband of COW2 and together they were the majority shareholders of the $ 1^{\mathrm{st}} $ Respondent. "65. The $ 3 ^{rd} $ charge of sending legal notice is her personal opportunity [sic] is a personal matter and the company is not involved. She should not be found guilty based on Chris Tan letter this is a personal matter and the Company should not be involved? - Yes, agree.

When you demote her to a lower position it is a breach of the contract of employment, therefore she has the right to claim for constructive dismissal? [30] We noted that there was no re-examination by the $ 1^{\mathrm{st}} $ Respondent on these issues as raised in the questions posed and amplified by us in the immediate paragraph above. [31] Again, there was no reference to these evidence by the learned Chairman, which on the face of it would appear to favour the Applicant in coming to his award. Again, there was a failure to take into account relevant consideration in deciding the case before him in relation to the Third Charge against the Applicant. [32] We noted as well, that the learned HCJ had expressed her reservation in her Grounds of Judgment, about disturbing the findings of fact made by the $ 2^{\mathrm{nd}} $ Respondent. True, an award of the Industrial Court is ipso facto deserving of deference, but that having been said, it is not a rule cast in stone. Only in deserving cases would an award be immune from interference by the HCJ during judicial review. As alluded to above, the law had since evolved and now an award may be interfered with in terms of finding of fact, if the circumstances before the review or appeal court are such that interference is warranted, so as to right an obvious wrong that had occasioned an injustice to an aggrieved party to the adjudication. We reiterate the words of learned Justice Raus FCJ (as he then was) in the Ranjit Kaur case [supra] having cited long established cases, such as R Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 CLJ 147 thus: [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. [20] That was what had exactly happened in this case. The Industrial Court whilst recognising that there was no positive proof of victimisation nevertheless went on to conclude that there was victimisation. The learned chairman of the Industrial Court held: The manner in which the charges have been framed against the Claimant gives the impression that the Claimant has been victimised. This Court of course cannot uphold a plea of victimisation in the absence of positive proof but as a Court of social justice it is bound to give due consideration to the possibility of victimisation and should any doubt arise it should give the benefit of the doubt to the employee after taking into consideration of the whole of evidence and the particular circumstances surrounding the case. [21] The High Court as well as the Court of Appeal found that there was no evidence to support the issue of victimisation. Justice Low Hop Bing, JCA held that the 'Industrial Court had gone on a frolic of its own' in finding that the Applicant had been victimised. He further held that it was manifestly wrong for the Industrial Court to proceed to embark on 'the possibility of victimisation' when it should have been concerned with probabilities i.e., on the balance of probabilities. We agree with Justice Low Hop Bing JCA. Clearly the Industrial Court has committed jurisdictional errors when finding the possibility of victimisation in the absence of positive proof and misdirecting on the standard of proof by reference to possibility instead of a balance of probabilities. [33] In the context of the factual circumstances obtaining in this appeal, we were of the respectful view that the courts below were wrong in finding that there was a scuffle between the Applicant and Mr Steven Chong, the crucial gravamen in the First Charge. Such finding was against the weight of evidence adduced before the $ 2^{\mathrm{nd}} $ Respondent, or otherwise not supported by the revealed facts. The unjustified finding that there was a scuffle had led the $ 2^{\mathrm{nd}} $ Respondent to conclude that both parties were at fault and thereby handing an award that it did, which was later affirmed by the learned HCJ at the judicial review application hearing. Surely, the finding of the $ 2^{\mathrm{nd}} $ Respondent was not deserving of deference by the learned HCJ. In fact such a finding was one susceptible to a review and ought to be disturbed. We would apply the above quoted words of the apex court Justices in the Ranjit Kaur case [supra] mutatis mutandis. We found that the First Charge was not proven against the Applicant on the balance of probabilities. [34] As regards the Third Charge, we were also of the considered view that the $ 1^{\mathrm{st}} $ Respondent had failed to establish the case against the Applicant. As could be seen, there was no valid reason for the Third Charge to be framed against the Applicant. What the Applicant did by sending the legal notice to Mr Steven Chong via email was a valid exercise of her private right against Mr Steven Chong and had nothing to do with the $ 1^{\mathrm{st}} $ Respondent. How such a valid exercise of personal right by the Applicant had caused unnecessary fear to her fellow manager, Mr Steven Chong and had amounted to a total disregard to company's investigation process, to our minds, could be utilised to found a charge such as the Third Charge against the Applicant was mystifying to say the least. Obviously, the Third Charge had stood on tenuous ground. We were in agreement with learned counsel for the Applicant that the Third Charge against his client had no proverbial legs to stand on. [35] Now, the statement of the law on constructive dismissal in Malaysia can be found in the Supreme Court decision of Wong Chee Hong v Cathay Organisation (M) Sdn Bhd [1988] 1 CLJ 45 where Salleh Abas had occasion to state the following: "The common law has always recognised the right of an employee to terminate his contract of service and therefore to consider himself as discharged from further obligation 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." [36] Of course the English position was reiterated with typical clarity, 10 years prior, by Lord Denning MR in the case of Western Excavating [ECC] Ltd v Sharp [1978] 2 WLR 344 where an employee was justified to walk away from his employment when his employer had evinced the intention not to be bound by the contract of employment. In this case, the Applicant had given notice to the $ 1^{\mathrm{st}} $ Respondent to the effect that if she was not reinstated to her former position, she would deem herself as having been constructively dismissed. Upon expiry of the period given to reinstate and there being no reinstatement by the $ 1^{\mathrm{st}} $ Respondent, the Applicant walked away from her workplace. There was no evidence of the Applicant evincing any intention to affirm the contract of employment between her and the $ 1^{\mathrm{st}} $ Respondent. She had done all that needed to be done before leaving the $ 1^{\mathrm{st}} $ Respondent, including the notice of her intention of leaving if she was not reinstated to her former position in the $ 1^{\mathrm{st}} $ Respondent. As Lord Denning MR had said in the Western Excavating case [supra] the employee 'must make up his mind soon after the conduct of which he complains, for if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract'. We found no delay on the part of the Applicant in leaving the $ 1^{\mathrm{st}} $ Respondent. [37] It is trite law that an award of the Industrial Court is susceptible to be set aside if it is unreasonable within the meaning in the decision in the celebrated case of Associated Provincial Pictures Limited v Wednesbury Corp [1948] 1 KB 223, otherwise commonly referred to as the Wednesbury's unreasonableness test. It is also susceptible to be quashed if it is one which is perverse. It is a perverse award if it falls within the embrace of illegality, irrationality, and procedural impropriety as propounded and understood vide the speech of Lord Diplock in the Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374 ("the CCSU case"). In fact, Lord Diplock had added to the list another ground to quash an award, namely proportionality. A common thread, we noted, that had run through a perverse decision under any of the heads listed in the CCSU case, has been the element of it being contrary to the accepted or expected standard or practice. [38] In light of the fact that the First Charge and the Third Charge were not established, there was no reason whatsoever for the $ 1^{\mathrm{st}} $ Respondent to demote the Applicant from her position. Without those adverse findings against the Applicant, there existed no justification for the $ 1^{\mathrm{st}} $ Respondent to impose the demotion against the Applicant. Even COW3 agreed that the Applicant should not have been demoted. The Applicant was justified in treating herself as having been constructively dismissed by the $ 1^{\mathrm{st}} $ Respondent, in the circumstances. In our considered view, this award by the $ 2^{\mathrm{nd}} $ Respondent had qualified as a perverse decision and it cannot be allowed to stand and must therefore be quashed. [39] With respect, we were constrained to rule that there were merits in the Applicant's appeal. Our conclusion [40] Premised on the above, we had allowed this appeal with costs. We set aside the decision of the HCJ and that of $ 2^{\mathrm{nd}} $ Respondent, the Industrial Court. An order of certiorari was therefore issued to quash the award of the $ 2^{\mathrm{nd}} $ Respondent. We had also ordered that the case be remitted back to the $ 2^{\mathrm{nd}} $ Respondent for damages payable to the Applicant for wrongful dismissal by the $ 1^{\mathrm{st}} $ Respondent, for assessment. In the circumstances of this case, we agreed with the learned counsel for the Applicant that reinstatement was not the appropriate remedy as there was already a loss of mutual trust between the litigating parties. As to costs, we ordered the $ 1^{\mathrm{st}} $ Respondent to pay RM15,000.00 for here and below, subject to payment of allocator fees. Deposit, if any was paid, was ordered to be refunded to the Applicant, being the Appellant in this appeal. Dated: 11 July 2019. Sgd. ABANG ISKANDAR BIN ABANG HASHIM Judge Court of Appeal, Malaysia Parties appearing: For the Appellant: Mr Mohan Ramakrishnan; Messrs Ramakrishnan & Associates. For the 1 $ ^{st} $ Respondent: Mr P. Mithran; Messrs Sothi & Ang Cases referred to:

Associated Provincial Pictures Limited v Wednesbury Corp [1948] 1 KB 223

Council of Civil Service Unions v Minister for the Civil Service [1985] A.C.374

Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 CLJ 147

Ranjit Kaur S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ

Western Excavating [ECC] Ltd v Sharp [1978] 2 WLR 344

Wong Chee Hong v Cathay Organisation (M) Sdn Bhd [1988] 1 CLJ 45

Wong Swee Chin v PP [1980] 1 LNS 138 Note: This copy of the Court's Grounds of Judgment is subject to formal revision.