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2022 MarsdenLR 1075
INDUSTRIAL COURT KUALA LUMPUR
YONG CHEE KONG – Appellant
Versus
GEDUNG ENG HONG (PEKAN) SDN BHD – Respondent
Award No: 544 Of 2022 [Case No: 2/4-430/21]
The employer carries the burden to prove just cause for dismissal; failure to provide evidence of redundancy invalidates the termination.
Headnote:(A) Industrial Relations Act 1967 – Section 20 – Reference by the Minister of Human Resources regarding dismissal – Claimant was employed without written contract; terminated without just cause – Role of Industrial Court detailed in Milan Auto Sdn Bhd v. Wong Seh Yen – Burden of proof lies with the employer to demonstrate just cause for dismissal. (Paras 9-12, 14-20)
(B) Judicial Review – Employer must demonstrate genuine redundancy to justify dismissal – Court cannot consider evidence not previously submitted. (Paras 26, 28)
Facts of the case: The Claimant commenced employment in 2003, dismissed in July 2020 without a termination letter. The Company alleged redundancy but failed to provide substantial evidence for this claim.
Findings of Court: The Claimant was dismissed without just cause and redundancy was unproven.
Issues: The key questions were whether there was evidence of genuine redundancy and if the dismissal was justified.
Ratio Decidendi: The Court held that the Company had an obligation to substantiate the claims of dismissal and redundancy; failure to do so rendered the dismissal unjust.
Result: The Company ordered to pay RM217,000 to the Claimant for loss of wages and compensation.
AWARD
The Reference
[1] This is a reference dated 7 January 2021 by the Honourable Minister of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the dismissal of Yong Chee Kong ("Claimant") by Gedung Eng Hong (Pekan) Sdn Bhd ("Company") on the 6 July 2020.
[2] The parties in this matter filed their respective written submissions dated 28 December 2021 (Claimant's Written Submissions), 27 December 2021 (Company's Written Submissions. All documents attached together with this Submissions are now disallowed and rejected by this Court as they were not tendered as exhibits during the full trial of this matter), 11 January 2022 (Claimant's Submissions in Reply) and 25 January 2022 (Company's Submissions in Reply).
[3] This Court considered all the notes of proceedings in this matter, documents and the cause papers in handing down this Award namely:
(i) The Claimant's Statement of Case dated 7 April 2021;
(ii) The Company did not and /or failed to file any Statement in Reply;
(iii) The Claimant's Bundle of Documents marked as CLB1 and CLB2;
(iv) The Claimant's Witness Statement marked as CLW1-WS (Yong Chee Kong).
[4] This Court must also state here that after the conclusion of the full trial and at the close of the Claimant's case on the 6 December 2021, this Court had given directions to the parties to file their written submissions. However, this Court had observed that the Company had filed a Statement of Reply dated 27 December 2021 which was received by this Court on the 28 December 2021 after the Claimant had closed his case and parties were directed to file their respective submissions and was done so without any application made to this Court to file this document. Together with the Statement in Reply, the Company had also annexed various documents in the Statement in Reply and the Written Submissions dated 27 December 2021 (same date as the Statement in Reply). This Court would disallow and reject the use of the Statement in Reply dated 27 December 2021 and all the documents annexed in the Statement in Reply and the Written Submissions of the Company. These disallowed and rejected documents will not be considered by this Court in its evaluation of facts and the evidence, both oral and documentary tendered in Court during the full trial of this matter.
Introduction
[5] The Claimant commenced employment with an entity known as Eng Hong Mart Balok Sdn Bhd on or about October 2003 which is an entity linked to the Company. The Claimant states that at the time of the commencement of employment in October 2003, the Claimant was not given any employment letter. However, Eng Hong Mart Balok Sdn Bhd began contributing the Claimant's SOCSO contribution beginning 1 December 2003. The Claimant states that subsequently, the Claimant was transferred to another entity linked to the Company known as Eng Hong (Sg. Karang) effective 1 August 2010 with no changes to his salary and other benefits. On the 1 June 2019, the Claimant was then transferred to the Company herein as its Branch Manager with a basic salary of RM7,000.00 per month. Again the Claimant was not given any document or letter of employment with the Company by the Company. On the 6 July 2020, the Company through its officer one Dato' Ng Say Kiat, without any reasons whatsoever, terminated the Claimant's service with the Company with immediate effect on the basis that the Company is closing down its operation despite the fact that other branches of the Company were operating and conducting business as usual. The Claimant was not given any termination letter by the Company. The Claimant now states that he had been dismissed without just cause or excuse by the Company and prays that he be reinstated to his former position without any loss wages and other benefits.
[6] The Claimant gave evidence under oath and remained the sole witness for his case. As at the date of the full trial on the 6 December 2021, the Company and or its
