The employer bears the burden of proof to justify dismissal, and failure to provide evidence of performance issues renders the dismissal unjust.

AWARD

Rusita Md Lazim:

[1] This is a reference dated 1 April 2024 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 Sugumar A/L Muniandy (hereinafter referred to as "the Claimant") by his employer, HR Brother Frozen Sdn Bhd (hereinafter referred to as "the Company") with effect from 29 July 2023.

A. Procedural History

[2] The Claimant represented by MTUC had first attended the e-mention on 8 May 2024 and 6 June 2024.

[3] The Respondent was absent on the first two dates. The Court fixed 27 June 2024 for Statement in Reply and Bundle of Documents (BOD).

[4] The Respondent's counsel attended Court on 27 June 2024, 15 August 2024 and 13 September 2024.

[5] The Court had already given directions for filing pleadings to both parties as early as 27 June 2024. The Respondent filed their Statement in Reply on 29 August 2024.

[6] Despite a few extension dates given (with or without the Company's Representative appearance), the Company failed to file its Bundle of Documents s right up to the hearing date on 16 January 2025.

[7] On the day of the hearing, 16 January 2025, the Company was absent and no Bundle of Documents and Witness Statements have been filed by them in Court . The Court was satisfied that all the relevant notices had been served on the Company via AR Registered.

[8] 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".

[9] The trial proceeded by way of an Ex Parte Hearing on 16 January 2025 with only the Claimant ("CLW-1") being the sole witness.

[10] 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 12 June 2024;

(b) the Company's Statement in Reply dated 28 August 2024;

(c) the Rejoinder dated 15 January 2025;

(d) the Claimant's witness statement (Sugumar A/L Muniandy) is marked as "CLWS-1";

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

B. Factual Matrix

[11] The Claimant commenced his employment as a Warehouse Supervisor effective 3 June 2023 and with a basic salary of RM3,200.00.

[12] The Claimant was on probation for 3 months commencing 3 June 2023 which the period would have ended on 2 September 2023.

C. The Claimant's Case

[13] The Claimant's averments are as follows:

(a) The Claimant was required to serve a probationary period of 3 months which the period would have ended on 2 September 2023;

(b) By way of a letter dated 29 July 2023, the Claimant was dismissed from his employment on the grounds of poor performance (which the Claimant denies);

(c) The Company at no time conduct any evaluation and/or assessment of the Claimant's performance;

(d) During the probationary period, the Company never discussed or notified him of its dissatisfaction with his performance;

(e) During his employment with the Company the issue of poor performance was not raised by the Company. The Claimant denies that his performance was below satisfactory and puts the company to strict proof thereof;

(f) During his employment with the Company, he never received any warning letter including oral warning or counselling from the Company in respect of his work performance issue; and

(g) The Claimant's dismissal was without just cause or excuse and was in breach of the fundamental principles of natural justice.

D. Role And Function Of The Industrial Court

Standard of Proof

[14] The C