4-743/06 between encik adar bin ya and proton ... - Industrial Court

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contradict them. This appears in all cases from the celebrated judgment of Lord Loreburn, L.C. in Board of Education v. Rice down to the decision of their Lordships' Board in Ceylon University v. Fernando. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not enquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough.”. The next question for the court is what is the effect of an improperly conducted DI ? It is trite law that irregularities that occur during a DI and even the absence of a DI itself would not per se render a dismissal as unfair. The law is clearly set out in the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. & Anor [1995] 3 CLJ 344; [1995] 2 MLJ 753 where Mohd. Azmi FCJ had this to say at page 767:- "The Industrial Court was not competent to declare the dismissal void for failure to comply with the rules of natural justice. The very purpose of the inquiry before the Industrial Court was to give both parties to the dispute an opportunity to be heard irrespective of whether there was a need for the employer to hold a contractual or statutory inquiry. We are confident that the Industrial Court as constituted at present was capable of arriving at a fair result by fair means on all matters referred to it. If therefore there had been a procedural breach of natural justice committed by the employer at the initial stage, there was no reason why it could not be cured at the re-hearing by the Industrial Court.". 12
Based on the authority as cited above, the court will proceed to hear the case afresh to see if the company has succeeded in proving, on a balance of probabilities, the allegations of misconduct against the claimant. In this case, it is germane to note that the court will only deal with charges which the company relied when terminating the services of the claimant against the claimant (see: Mohd Firdruz Mohamad Nari & 2 Ors v. MJSB Resorts Sdn Bhd [2008] 2 LNS 1551 (Award No. 1551 of 2008) that is charge no.2 and no.3. Charge No. 2 As for this charge it is pertinent to note that it falls upon the court to inquire into all aspects of the scuffle before determining whether the claimant did threat Sugimoto with a “parang”. In Steelform Industries Malaysia Sdn. Bhd. V. Foo Fook Ban [1991] 1 ILR 442 (Award No. 126 of 1991) the learned chairman observed: “Material facts and relevant evidence in any case of assault or fighting should include the causes, reasons and motives that led to the fight to determine the various degrees of culpability of the persons involved in the fight, and if there is any justification to exonerate the innocent victim.”. In this case also, the court notes that parties have filed statement of agreed facts (enclosure 9) and briefly both parties did not dispute that there was a scuffle between Sugimoto and the claimant. After evaluating 13
Page 1 and 2: INDUSTRIAL COURT OF MALAYSIA CASE N
Page 3: not find any problem in handing dow
Page 6 and 7: “It is trite that the Industrial
Page 8 and 9: incident between the claimant and S
Page 10 and 11: Vide his written statement (CLWS2 (
Page 14 and 15: oth the evidence of the company thr
Page 16 and 17: “parang” but it was done with a

4-743/06 between encik adar bin ya and proton ... - Industrial Court

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