An employer bears the burden to prove the legitimacy of a dismissal; failure to do so renders it unjust.

Eswary Maree:

Reference

[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 (1967 Act) by the Honourable Minister of Human Resources, emanates from the dismissal of Hew Kim Soong ("the Claimant") by Study Trust International (M) Sdn Bhd ("the Company") on 30 October 2020

[2] This matter was heard ex-parte on 21 October 2022 without the presence of the Company's representative. The Court has sent all the relevant forms, notices and letters to the Company at its last known business and registered address, informing the Company of the mention dates and hearing dates. The Court had also given directions to the Company to file the relevant documents including filing of the Statement In Reply.

[3] Notwithstanding the aforesaid, the Company for reasons best to them opted not to attend Court and/or to defend the Claimant's case against the Company. The Company also did not file any document in Court.

[4] The Claimant on the other hand had duly filed the relevant cause papers and documents as directed by the Court. The Claimant had requested to proceed with the hearing of the Claimant's case against the Company in the absence of the Company's representative.

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

"The Court is mindful of the role in ex parte hearing by referring to the case of Ike Video Distributors Sdn Bhd v. Chan Chee Bin; [2004] 2 ILR 687 where the Learned Chairman quoted from the book "The Law of Industrial Disputes" by OP Malhotra Vol 3rd Edn At p 716: "A rule empowering the tribunal to proceed ex-parte if a party is absent and sufficient cause is not shown for his absence, would not enable it either to do awav with the in- quiry or straight away pass on an Award without giving finding on the merits of the disputes. In other words, the absence of a party does not entail the consequence that an Award will straightaway be made against him."

[Emphasis Added]

[6] Bearing the aforesaid principle in mind, in the case of Manimaran Karuvanan v. Tav Facility Solution (M) Sdn Bhd the Industrial Court had proceeded with an ex-parte hearing on the merit of the case pursuant to s 29(d) of the Act. It was held, inter alia, as follows:

"As such, both parties had been sufficiently informed of the hearing dates fixed for this case. However, the Company failed to turn up in Court on the Hearing date. Hence, the hearing was ordered to proceed Ex-Parte pursuant to s 29(d) of the IRA 1967. In relation to this, the Court is guided by the case of Lee Mei Wan v. Ultimate Media Group Pte Ltd. It was observed that:

Ex-parte Hearing

[4] Subsection 29(d) of Act 177 provides for an ex-parte hearing without the presence of one of the parties to the dispute as follows: "The Court may, in any proceedings before it:

(a) ...

(d) 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 maybe 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.

[6] 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 Court although the Notice of Hearing and the earlier Notice of Mention had been served on it as stated above."

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