Dismissal without just cause requires substantiation, and absence of proof leads to findings against the employer.

Reference

[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Thee Giok Lan (hereinafter referred to as "the Claimant") by Angsana Project & Manpower Development Sdn Bhd (hereinafter referred to as the Company") on 31 January 2021.

[2] The Director General's reference, in this case, required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 5 July 2021.

I. Procedural History

[3] The Court received the letter pertaining to the Director General's reference under s 20(3) of the Industrial Relation Act 1967 on 30 July 2021.

[4] The matter was fixed for mention on 22 November 2021, 22 December 2021, 20 January 2022, 7 February 2022 and 13 December 2022. The Company failed to attend any of those mention 22 November 2021, 22 December 2021, 20 January 2022, 7 February 2022, 13 December 2022.

[5] The Company had also failed to file its Statement of Reply despite the clear instructions given by the Court.

[6] By virtue of s 29 (d) of the Industrial Relations Act 1967 , the Court has the power to hear and determine the matter notwithstanding the failure of any party to file in their Statement of Case or Statement in Reply (as the case may be).

[7] On the morning of the hearing on 8 April 2022, the Company was still absent right up to 10.06 am. The Claimant's Representative informed the Court that they were ready to proceed with the case and that they have only one witness, ie Thee Giok Lan (the Claimant, himself). The witness statement is (marked as "CLWS-1") and the Claimant's bundle of documents is (marked as "CLB-1").

[8] The law on ex-parte was set out in the case of Wong Brothers 'Building Construction v. Choo Chee Siam ; [2005] 2 ILR 356 . In this case, since the Company was absent during the hearing date, the Court went on to hear the matter on an ex-parte basis. The Court held as follows:-

(i) The Court is mindful of the role in ex-parte hearing by referring to the case of Video Distributors Sdn Bhd v. Chan Chee Bin , where the Learned Chairman quoted from the book "The Law of Industrial Disputes" by OP Malhotra Vol 3rd Edition at p 716:- "A rule empowering the tribunal to proceed Ex-Parte if a party is absent and sufficient cause is not given for the absence would enable it to do away with an inquiry or pass on an Award without giving a finding on the merits of disputes. In other words, the absence of a party does not entail the consequence that an Award will straightway be made against him."

[Emphasis Is Ours]

(ii) Section 29 (d) of the Industrial Relations Act 1967 read as follows:-

29 Power of the Court

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 the 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] Therefore, the Court was of the view that in the circumstances of this case, an ex-parte hearing was warranted due to the Company's failure to attend the Court, although the Notice of Hearing and Notice of Motion (what notice of motion?) was served on it as stated above.

[10] The Trial proceeded by way of an ex parte hearing before the learned Chairman, Dato Muhammad Bukhari Bin Abd. Hamid on 8 April 2022, with CLW-1 being the sole witness for the Claimant. The written submission was filed thereafter.

[11] Due to the retirement of the learned Chairman Dato Muhammad Buhkari Bin Abd Hamid effective from 25 November 2022, the lear