The employer bears the burden of proof to justify dismissal; failure to appear results in the presumption of the employee's claims being true.

Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal without just cause - The Court determined that the Claimant was dismissed without just cause due to the Company's failure to appear and rebut the Claimant's evidence. The Court emphasized the importance of the burden of proof resting on the employer to justify the dismissal. (Paras 22, 23, 34, 40)

(B) Ex-parte proceedings - The Court held that it can proceed with a case ex-parte when a party fails to attend despite being duly notified. The absence of the Company led to the presumption that the Claimant's evidence was true. (Paras 13, 14, 33)

Facts of the case:
The Claimant, employed as a Security Guard since February 2020, was dismissed on 6 April 2023 after contesting a transfer order. The Company failed to respond to his letters of appeal and was absent from multiple court hearings. (Paras 18-21)

Findings of Court:
The Court found that the Company did not provide evidence to prove that the dismissal was justified, thus accepting the Claimant's account as true. (Paras 36-37)

Issues: The main issues were whether the dismissal occurred and if it was with just cause or excuse. (Paras 24)

Ratio Decidendi: The Court concluded that the Company failed to rebut the Claimant's evidence, leading to the finding that the dismissal lacked just cause. (Paras 40)

Result: The Court awarded RM32,760.00 to the Claimant for back wages and compensation in lieu of reinstatement. (Paras 45)

AWARD

Jeyaseelan T Anthony:

Reference

[1] This is a reference made on 20 November 2023 by the Director General of Industrial Relations Department to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 ('the Act') arising out of the dismissal of MURUGAN VARATHAN (hereinafter referred to as 'the Claimant') by BRINKS CORPORATION SDN BHD (hereinafter referred to as 'the Company'). The Director General's reference in this case before the Court requires the Court to hear and determine the Claimant's complaint of dismissal by the Company on the 6 April 2023.

Background

[2] Pursuant to the Director General's reference dated 20 November 2023, this matter was fixed for mention on 21 December 2023 wherein the Claimant was present however, the representative of the Company was not present when the matter was called up before the Assistant Registrar. The Company was notified of the said mention date via Form F which was posted by way of AR Registered Post on 4 December 2023.

[3] The Court then fixed 15 January 2024 as the next mention date. A letter from this Court dated 21 December 2023 notifying the Company of the said mention date was also sent by AR Registered Post to the Company, however the AR card was returned, unclaimed.

[4] On 15 January 2024, both the Company and the Claimant was absent. The Court then fixed 19 February 2024 as the next mention date. A letter from this Court dated 15 January 2024 notifying the Company of the said mention date was sent by AR Registered Post and was again unclaimed. The Claimant was notified of the said mention date via an email from this Court dated 15 January 2024.

[5] On 19 February 2024, the Union representative appeared for the Claimant, however the Company was again absent. The Court then fixed 11 March 2024 as the next mention date and directions were given for the filing of the Statement of Case and Bundle of Documents.

[6] On 11 March 2024, the Union representative appeared for the Claimant however, the Company was again absent. The Court then fixed 26 March 2024 as the next mention date.

[7] On 26 March 2024, the matter was called up for mention before the Assistant Registrar of this Court with only the Claimant's representative appearing before the Court and the Company was absent again. The Court then decided to fix another mention date on 15 April 2024 at 10.00 am. At this time, the Claimant has still not filed his Statement of Case and Bundle of Documents and was directed to do so by 15 April 2024.

[8] On 15 April 2024, the Union representative appeared for the Claimant however, the Company was absent. The Court then fixed 13 May 2024 as the next mention date and for Witness Statements to be filed before the said date. This Court also fixed the matter for hearing on 18 June 2024 at 9.30 am.

[9] This Court then informed the Company and Claimant of the hearing date via Form G, the Notice of Hearing dated 21 May 2024 and the same was sent to the Company at their address in Sandakan, Sabah by AR Registered Post on 23 May 2024. However, the AR card was returned unclaimed.

[10] On 13 May 2024, when the matter was called before the learned Assistant Registrar only the Claimant's representative was present. This Court then directed that the matter would proceed for hearing on 18 June 2024.

[11] On the hearing date of the matter, 18 June 2024, the Company was absent when the matter was called up before me. The Company was absent despite being informed of the hearing date by a Notice of Hearing (Form G) which was sent to the Company to their registered/business address in Melaka as stated in the latest SSM search of the Company dated 15 May 2024 (CLB-2) which was posted on 23 May 2024 by AR Registered Post.

[12] This Court decided to send a copy of the Notice of Hearing to the Company's registered/business address in Melaka as the notices sent to its address in Sandakan, Sabah was returned to this Court , unclaimed. As such this Court ha

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2024 MarsdenLR 1223

INDUSTRIAL COURT PENANGMURUGAN VARATHAN – AppellantVersusBRINKS CORPORATION SDN BHD – RespondentAward No: 1502 Of 2023 [Case No: 18/4-1695/23]

The employer bears the burden of proof to justify dismissal; failure to appear results in the presumption of the employee's claims being true.

Cases Referred (3)

INDUSTRIAL COURT PENANG
MURUGAN VARATHAN – Appellant
Versus
BRINKS CORPORATION SDN BHD – Respondent
Award No: 1502 Of 2023 [Case No: 18/4-1695/23]