Back
2025 MarsdenLR 6348
HIGH COURT MALAYA PULAU PINANG
DN CLEANING & SERVICES (M) SDN BHD – Appellant
Versus
KOAY KAR HIN – Respondent
[Civil Appeal No: PA-16A-1-01/2024]
The burden of proof in unfair dismissal cases rests with the employer, who must demonstrate just cause for the dismissal. Failure to appear at hearings undermines the employer's position.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) and 29(d) - Appeal against Industrial Court's decision on unfair dismissal without cause - The Claimant was awarded RM18,000.00 for back wages, ruling that dismissal was unjustified due to the Company's absence in proceedings. (Paras 1, 4, and 16)
(B) Principles of natural justice - An appearance is required from both parties in employment disputes to ensure fairness. Missing parties afford claims undue credence if unchallenged. (Paras 9 and 18)
Facts of the case:
The Claimant, employed as a cleaner, was dismissed after reporting ongoing harassment and refusing to resign. Without proper procedural following, the Company's absence from the hearings led to a default judgment in favor of the Claimant. (Paras 7 and 14)
Findings of Court:
The Claimant's evidence was uncontested due to the Company's failure to appear, affirming the claim's validity and justifying the Industrial Court's award for back wages. (Paras 16 and 17)
Issues: The main questions were whether the Company had justified the dismissal and whether adequate notice of hearings was provided to ensure a fair trial. (Paras 15 and 18)
Ratio Decidendi: The appellate court upheld that the burden lies with the employer to prove a dismissal was with just cause; absence from hearings results in possible acceptance of the opposing party's claims. (Paras 15 and 17)
Result: Appeal dismissed with costs RM3,000.00 payable by the Company to the Claimant.
| Table of Content |
|---|
| 1. unfair dismissal claim and procedural history (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. details of the claimant's employment and dismissal (Para 7 , 8) |
| 3. company’s arguments against the dismissal claim (Para 9 , 10 , 11 , 12 , 13 , 14) |
| 4. court's analysis on the appeal and legal standards (Para 15 , 16 , 17 , 18) |
A. Introduction
[1] This is an appeal by the Appellant/Company against the award of the Industrial Court which was delivered on 12 December 2023, allowing the Respondent/Claimant's claim for unfair dismissal without cause and awarded RM18,000.00 to the Respondent/Claimant for back wages. This appeal was filed by the Appellant/Company for the reason that the hearing in the Industrial Court was done in the absence of the Appellant/Company to give direct evidence to prove its case.
[2] The parties will be referred to as the Claimant and Company as they were in the Industrial Court.
B. Background Of The Case
[3] The case before the Industrial Court (IC) is pursuant to a reference made on 29 May 2023 by the Director General of the Industrial Relations Department to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of the Claimant by the Company.
[4] The matter was fixed for mention before the IC on 21 June 2023, 6 July 2023 and also 4 August 2023 by way of google-meet. However, both the Claimant and the Company was absent on the three dates fixed. The parties were informed of every mention date via Form F which was sent by A.R Registered Post to the last known address of the parties. On all occasions, the Company had acknowledged receipt of the said notice by signing on the A.R Card but the notice addressed to the Claimant was returned unclaimed. Subsequently, directions were given for the matter to be fixed for final mention on 18 August 2023 with the physical presence of both parties in Court.
[5] On 18 August 2023, only the Claimant appeared in Court for the mention and the Company was absent again despite being informed of the date by a letter and the Company had even acknowledge receipt of the said letter. The Court then fixed another mention date on 21 August 2023 where the Claimant was again present in Court but the Company was still absent. Since the Claimant has no counsel to represent him, the IC decided to fix the matter for hearing on the 22 September 2023 at 9.30 am. A notice of hearing in Form G was served to the Company and the Claimant by way of A.R Registered Post to inform the parties of the hearing date and to appear, failing which the IC will proceed to hear and determine the case notwithstanding the absence of any parties.
[6] On 22 September 2023, the Claimant was present while the Company again was absence. The IC then heard the matter ex-parte as the Claimant was ready to proceed with the case with the Claimant himself giving evidence. Upon hearing the matter, the IC come to a finding that the Claimant's dismissal was without just cause and excuse. Being dissatisfied with the IC's decision, the Company appeal to this Court.
C. The Claimant's Case
[7] The Claimant work as a cleaner with the Company starting from 21 March 2022. At the material time of his dismissal, the Claimant's last drawn salary was RM1,500.00. The Claimant worked for nearly 5 months and was confirmed in his position after undergoing a three (3) month probation period. The Claimant was disturbed and sexually harassed by one of the Company's foreign workers from Bangladesh and had made a police report due to it. Since there were continuance of disturbance, the Claimant had a fight with the said foreign worker and later, the Claimant informed his supervisor of what had happened to him with in turn the supervisor told the Claimant that he would report the matter to the Company's Human Resource (HR) Manager.
[8] However, on 30 August 2022, the HR Manager and the director of the Company asked the Claimant to resign but the Claimant refused to do so. On the n
