The employer bears the burden of proof in dismissal cases, and failure to provide evidence results in a finding of unjust dismissal.

AWARD

Amrik Singh:

Reference:

[1] This is a reference dated 12 March 2024 by the Director General of Industrial Relations, Malaysia made under s 20(3) of the Industrial Relations Act 1967 (the Act) arising out of the dismissal of Thavaneswaran A/L Mutaya by My Jet Xpress Airlines Sdn Bhd on 31 January 2023.

Preliminary

[2] This matter first came up for e-mention on 29 April 2024 before the Assistant Registrar wherein the Company's Human Resource Officer and the Claimant was present during which a date for parties to file their respective pleadings was given. On the 6 June 2024, the second mention date, the Company's representative was absent whilst the Claimant filed his Statement of Case.

[3] Consequently, notice for the subsequent mention date on 1 July 2024 was issued to inform the Company of the subsequent mention date and the need to file the Statement In Reply. On 1 July 2024, the Company again failed to appear before this Court or filed any cause papers. The Claimant informed the Court that he has served the Statement of Case to the Company's business address.

[4] To ensure that the Company was well informed of the hearing date, Form g was issued to the Company's registered and business address and to the directors. The Company and two (2) of its directors received the Court 's Form G.

[5] On the date of the hearing the Company did not appear despite the attempts made by the Court to notify the Company and its' directors of the hearing date.

[6] Considering that from the Court 's record, all due process has been complied with and to substantiate the reason for this Court to hear the Claimant's unfair dismissal claim, this Court has to assure itself that the Company is still subsisting and for that purpose, a gleaned from the Company's search shows that the Company is still active. In light of the above, the Claimant is entitled to proceed with the action against the Company for his unfair dismissal and the Court is left to consider only those documents filed by the Claimant so far. No documents were filed by the Company for this Court 's consideration.

[7] It is imperative that this Court adheres to the rules that govern an ex parte hearing as well as the Act, which forms the basis of its role and function in adjudicating matters before it.

[8] The role of the Industrial Court in an ex parte hearing was lucidly explained by OP Malhotra in the Law of Industrial Dispute, Volume 1, 6th Edition p 1062 where it was stated by the Learned Author as follows:

"If however, a party wilfully absents himself in such a way that the adjudication is likely to be impede, or wilfully tries to delay or avoid the proceedings, the tribunal may fix a pre emptory hearing on a particular day. After reasonable notice of hearing has been given to the defaulting party, if he still neglect or refuses to attend, the tribunal may and ought to hear in his absence. Prompt discharge of business is of particular importance before a tribunal adjudicating an industrial dispute..."

And at p 1063, it was further elaborated that:

"A rule empowering the tribunal to proceed ex parte if a party is absent and sufficient cause is not shown for his absence, would not enable it either to do away with the inquiry or to straight away pass an award without giving a finding on the merits of the dispute. In other words, the absence of a party does not entail consequences that an award will straight away be made against him."

[9] As for the Act, the relevant section that empowers an Industrial Court to hear a matter ex parte is s 29(d) of the Industrial Relations Act 1967 that provides:

"The Court may in any proceedings before it (d) hear and determine the matter before it notwithstanding the failure of any party to submit any written statement whether of