The employer bears the burden of proof in dismissal cases, and probationary employees have equivalent rights to permanent employees regarding constructive dismissal claims.

AWARD

Rusita Md Lazim:

[1] This is a reference dated 4 September 2023 from the Director General, Department of Industrial Relations Malaysia to the Industrial Court of Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as "the IRA ") in respect of the dismissal of Lee Tze Torng (hereinafter referred to as "the Claimant") by her employer, Limmas Manufacturing (Malaysia) Sdn Bhd (hereinafter referred to as "the Company") with effect from 2 February 2023.

A. Procedural History

[2] On the first and second mention dates 25 October 2023 and 8 November 2023, the Claimant and the Respondent failed to attend the e-Mention on the date despite the Notice been served.

[3] The Claimant who was represented by MTUC had first attended the e-Mention on 4 January 2024.

[4] The Court had already given directions for filing pleadings and the bundle of documents to both parties as early as 15 February 2024. Despite a few extension dates given (with or without the Company's Representative appearance), the Company failed to file its Statement in Reply and Bundle of Documents right up to the hearing date on 25 March 2024.

[5] On the day of the hearing, 29 April 2024, the Company was absent and no Statement in Reply had been filed by them in Court. The Court was satisfied that all the relevant notices had been served on the Company via AR Registered.

[6] The Court accordingly exercised its powers under s 29(d) of the Industrial Relations Act 1967 and declared this proceeding to be heard ex parte. Section 29 (d) of the provides the Court may, in any proceedings before it, "hear and determine the matter before it notwithstanding the failure of any party to submit any written statement whether of case or reply to the Court within such time as may be prescribed by the President or in the absence of any party to the proceedings who has been served with a notice or summons to appear".

[7] The trial proceeded by way of an Ex Parte Hearing on 29 April 2024 with only the Claimant ("CLW-1") being the sole witness.

[8] This Court had also considered the following cause papers and documents in handing down this Award, namely:

(a) the Claimant's Statement of Case dated 23 February 2024;

(b) the Claimant's witness statement (Lee Tze Torng) is marked as "CLWS-1";

(c) the Claimant's Bundle of Documents marked as "CLB-1";

B. Factual Matrix

[9] The Claimant commenced his employment as a Sales and Marketing Manager effective 15 August 2022 vide a Letter of Employment Offer dated 15 August 2022 with a basic salary of RM15,000.00 and transport allowance of RM1,000.00 per month. (CLB-1 pp 1-7).

[10] The Claimant was on probation for 6 months based on the review from the Company.

[11] The Claimant averred that his salary has not been paid according to the Letter of Employment dated 15 August 2022 since the first month of his employment.

[12] The Claimant via a letter dated 4 January 2023 had written to the Company's Chief Executive Director, Mr Lim Choon Huat setting out the relevant matter. Nevertheless, the Claimant did not receive any reply from the Company for certainty (CLB-1 p 8)

[13] The non-payment of the salary continuously occurred up to January 2024. The Claimant on 2 February had written to the Company on the Company's breach of the Employment Contract dated 15 August 2022. The Claimant also had raised his intention to bring this matter to the relevant authority and alternatively would claim for constructive dismissal. (CLB-1 p 9)

C. Role And Function Of The Industrial Court Standard Of Proof

[14] The Court of Appeal, in the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor, 2002 MarsdenLR 1640 , laid down the principles that the standard of proof in the Industrial Court is on a balance of probabilities. His Lordship Abdul Hamid Mohamad, JCA opined:

"Thus, we can see that the preponderant view is that the Industrial Court, when hearing a claim of unjust dismissal, even where the ground is one of a dishonest act,