The employer must prove just cause for dismissal; failure to appear or provide evidence leads to a ruling in favor of the employee.

The Reference

[1] This is a reference dated 11 October 2022 by the Director General of the Department of Industrial Relations, Ministry of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the dismissal of YONG CHEE SHOON ("Claimant") by 1ST SOLUTION & ENGINEERING ("Company") on the 3 January 2021.

[2] Upon the conclusion of the trial of this matter this Court invited the Claimant to make oral submissions which the Claimant agreed and thus made his oral submissions. The Company failed to attend the hearing of this matter and also failed to file any documents in Court for the proceedings of this matter.

[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 15 December 2022;

(ii) The Claimant's Bundle of Documents - CLB;

(iii) The Claimant's Witness Statement - CLW - WS (Yong Chee Shoon;

Introduction

[4] The Claimant was employed by the Company on the 5 October 2018 as a project manager with a last drawn monthly salary of RM3,500.00. The Company terminated the Claimant on the 3 January 2021 for what the Company has alleged as the Company suffering financial losses due to economic downturn arising from the COVID-19 pandemic. The Claimant deny that the Company was in financial distress and claims that he was dismissed summarily without any just cause or excuse. The Claimant now prays that he be reinstated to his former position without any loss of wages or other benefits. The Claimant gave evidence under oath and remained the sole witness for his case. The Company or its representative failed to appear before this Court during the trial of this matter and as such this matter was heard in the absence of the Company.

The Law

Role And Function Of The Industrial Court

[5] The role of the Industrial Court under s 20 of the Industrial Relations Act 1967 is succinctly explained in the case of Milan Auto Sdn Bhd v. Wong Seh Yen ; [1995] 4 CLJ 449; [1996] 1 AMR 049. His lordship Justice Mohd Azmi bin Kamaruddin FCJ delivering the judgment of the Federal Court had the occasion to state the following:

"As pointed out by this Court recently in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal [1995] 1 MLRA 412; [1995] 2 MLJ 753; [1995] 3 CLJ 344; [1995] 2 AMR 2145, the function of the Industrial Court in dismissal cases on a reference under s 20 is two-fold firstly, to determine whether the misconduct complained of by the employer has been established, and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal. Failure to determine these issues on the merits would be a jurisdictional error..."

[6] The above principle was further reiterated by the Court of Appeal in the case of K A Sanduran Nehru Ratnam v. I-Berhad ; ; ; ; ; [2007] 1 ILR 257 where his lordship Justice Mohd Ghazali Yusoff, JCA outlined the function of the Industrial Court:

"[21] The learned judge of the High Court held that the Industrial Court had adopted and applied a wrong standard of proof in holding that the respondent has failed to prove dishonest intention and further stating that the respondent has not been able to discharge their evidential burden in failing to prove every element of the charge. He went on to say that the function of the Industrial Court is best described by the Federal Court in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhdand Another Appeal [1995] 1 MLRA 412; [1995] 2 MLJ 753; [1995] 3 CLJ 344; [1995] 2 AMR 2145 where in delivering the judgment of the Court Mohd Azmi FCJ said (at p 352):

On the authorities, we were o