Rujukan ini dibuat oleh Y.B. Menteri Perusahaan Sumber Manusia berdasarkan seksyen 20(3) Akta Perhubungan Perusahaan 1967. Ianya berpunca daripada pembuangan kerja Encik Lee Ee Liang oleh Polypump Engineering Corporation Sdn. Bhd.

AWARD

(NO. 1022 OF 2008)

Reference:

This is a reference by the Honourable the Minister of Human Resources Malaysia under Section 20(3) of the Industrial Relations Act 1967 (hereinafter known as "the Act") arising out of the dismissal of Lee Ee Liang (hereinafter known as "the Claimant") by Polypump Engineering Corporation Sdn. Bhd. (hereinafter known as "the company").

Background

The company in this case was absent and never filed statement-in-reply, apart for mention dates on 18 April 2005, 5 May 2005, 4 August 2005, 7 September 2005, 27 October 2005, 17 March 2006, 20 July 2006 and 26 July 2007 where it was represented by its administrative officer, had failed to attend this court for hearing which was originally fixed on 21 April 2008. On the subsequent day of hearing on 11 June 2008 again the company was absent and no ground was advanced to this court as to why it was again absent. This court had sent letters informing the date of hearing to the company via its registered address and its business address. Posting of the court's letter to the business address of the company was done vide A.R. registered. The court then received the acknowledgment of the A.R. card. Therefore, the letter is deemed to have been received by the company. Counsel for the Claimant then requested for the hearing to be proceeded ex-parte for which this court allowed and proceeded on with the hearing in accordance with Section 29(d) of the Act as it was clear that the company did not seem to be interested in the case having absented itself for hearing twice. No reason had ever been made known to this court as to its continuous absence nor had it written to this court to inquire of this case or to request for postponement and others. This court finds no valid ground not to proceed with the hearing in the absence of the company.

In hearing this matter ex-parte, this court is mindful of what was held in the case of Wong Brothers Construction v. Choo Chee Slam [2005] 2 ILR 356 (Award No. 784 of 2005):

"(1) In the event that the company is absent from trial, a claimant would still need to show substantial merits in this case if the Court were to make a finding for him.".

From the book "The Law of Industrial Disputes" by O.P. Malhotra, Vol. 3rd Edn, at page 716 it states:

"A rule empowering the tribunal to proceed ex-parte if a party is absent and sufficient cause is not shown for his absent, would not enable it either to do away with the inquiry or straightway pass on an award without giving a 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.".

In light of the above, the court shall proceed to make its finding.

Facts of the Case

Claimant was employed by the company as a store keeper cum lorry driver from 1 April 2002 with a commencement salary of RM1,200.00 per month. The claimant was initially place on probation for a period of 3 months and the period would have ended on 30 June 2002. However, before the completion of the said probationary period the claimant was issued with a termination letter dated 15 May 2002 informing him that he was dismissed from employment with effect from 24 April 2002. The claimant states that he was from on medical leave for a period of 88 days with effect from 24 April 2002 until 20 July 2002 due to the road accident resulting collar bone fractures. In his witness statement (CLWS-1), the claimant said he notified the company about his medical leave through his wife. The company told the claimant to collect his outstanding salary for the month of April 2002. Prior to his dismissal, no warning nor show cause letters were issued to the Claimant. There was no domestic inquiry held. C