The dismissal of the Claimant was found to be without just cause or excuse, as the employer failed to substantiate allegations of misconduct with evidence.

AWARD

Amrik Singh:

Reference:

[1] This is a reference dated 13 July 2022 by the Director General of Industrial Relations, Malaysia made under s 20(3) of the Industrial Relations Act 1967 (the Act) arising out of the dismissal of Lee Siew Moi by Anbound Research Center (Malaysia) Sdn Bhd on 11 November 2021.

[2] This case was initially registered at Court 20 division which went through several case management sessions in the presence of the Claimant whilst the Company has been continuously absent during those sessions. Upon the early retirement of Court 20 Chairman, the President of Industrial Court , YDP YA Dato' Wan Jeffry Bin Kassim, in cultivating a smooth and expeditious disposal of cases, has without delay directed for this case to be transferred to this Court for a full hearing and the handing down of an Award.

[3] On 8 August 2024 at about 2.35 pm, the Court finds it expedient and fit to have this matter heard by way of ex party given that during the past case management proceedings, the Company was not present to answer to the Claimant's claim.

[4] The chronology leading this Court to hear the Claimant's representation by way of ex parte hearing is this. The Company did not appear on 29 August 2022, 13 March 2023, 1 November 2023, 19 December 2023, 13 May 2024, 21 June 2024, and 8 August 2024 being the case management dates set by the Court and neither was there any documents filed for the Court 's consideration.

[5] Hence, on 8 August 2024, the Claimant who was present as usual convey her expectation to this Court to hear her case without the Company's presence.

[6] This Court is of the view that since the requisite notice has been sent to the Company's registered address wherein such notice expressly indicated that failure to be present on the hearing date will result in the matter being proceeded for trial.

[7] Considering that from the record of this Court , all due process has been complied with and to substantiate the reason for this Court to hear the Claimant's unfair dismissal claim, this Court has to assure itself that the Company is still active and existing and for that purpose, a gleaned from the Company's search shows that the Company is still active. In light of the above, the Claimant is entitled to proceed with the action against the Company for her unfair dismissal and the Court is left to consider only those documents filed by the Claimant so far as not a single document was filed by the Company for this Court 's consideration.

[8] This Court is guided by the set of rules applies in an ex parte hearing and the Act to which this Court holds as the pillars of its role and function in adjudicating the issues before it.

[9] The role of the Industrial Court in an ex parte hearing was lucidly explained by OP Malhotra in the Law of Industrial Dispute, Volume 1, 6th Edition p 1062 where it was stated by the Learned Author as follows:

"If however, a party wilfully absents himself in such a way that the adjudication is likely to be impede, or wilfully tries to delay or avoid the proceedings, the tribunal may fix a pre emptory hearing on a particular day. After reasonable notice of hearing has been given to the defaulting party, if he still neglect or refuses to attend, the tribunal may and ought to hear in his absence. Prompt discharge of business is of particular importance before a tribunal adjudicating an industrial dispute..."

And at p 1063, it was further elaborated that:

"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 away with the inquiry or to straight away pass an award without giving a finding on the merits of the dispute. In other words, the absence of a party does not entail consequences that an award will straight away be made against him."

[10] As for the Act, the relevant section that empowers an Industrial Court to hear a matter ex parte is s 29(d) of the Industrial