AWARD

The reference in this case involves the dismissal of Sabari bin Ahmad ("the claimant") by Mastermain Enterprise Sdn. Bhd. ("the company").

Introduction

This case was originally heard by Tuan Augustine Liom (the former Learned Chairman of Mahkamah Perusahaan Malaysia Sarawak Branch) at Pejabat Buruh, Kota Kinabalu on 14 August 2001 but the award was not handed down.

Sometime, in or about middle of the year 2004, Tuan Augustine had left the service and I as the present Chairman took over this matter. In order to expedite this matter, the Industrial Court Sarawak Branch, sent a letter dated 22 July 2004 to both the company and the claimant ("the parties") by express post seeking their choice as to whether the parties prefer mediation, have another Chairman to hand down the Award or to have the matter heard de novo ("their preferred choice"). Both the letters were returned undelivered as both parties had shifted their place of residence.

Since the Industrial Court Sabah Branch had taken over the conduct of the matter, we fixed a mention date for both parties to appear in Court at Kota Kinabalu vide Form F dated 30 September 2004 to ascertain their preferred choice. However, both letters were returned unclaimed. In the circumstances this Court took the liberty to hand down this Award.

Background Facts

The claimant had filed his statement of case ("SOC") dated 20 April 2001 in Court on 26 April 2001. However, the Court was not able to serve Form G (notice of hearing) on the company. The claimant had in fact informed the Court on 14 August 2001 that he had personally attempted to serve the notice of hearing on the director of the company Mr Ian Daniel Muller ("the Director") at his residence in Labuan but failed. Hence, the claimant left Form G at the Director's house gate. Hence, the case proceeded in the absence of the Company on 14 August 2001.

Claimant's Case

The claimant commenced employment with the company as an Operations Manager of L.A. Rock Cafe and Fun Pub ("the cafe") in Kota Kinabalu on 1 October 1994. He was paid a basic salary of RM2,500 per month as well as an allowance of RM2,000. The claimant also claimed that he was paid an average monthly petrol allowance of RM300 per month and a sum of RM350 was paid to him to settle his monthly hand phone bills. He further claimed that he was paid a 10% service charge on a monthly basis which works out to be about an average of RM100 per month.

The claimant had pleaded that the dismissal is without just cause or excuse because the company terminated his services without any notice on 9 March 1998. The company closed its business without any notice as well.

The claimant stated in evidence that after a month of its closure, the cafe reopened its business and had instead employed one Mr. Vincent Phillip.

The claimant claims that the Director failed to fulfill his promise of agreeing to pay a contribution of USD 100,000 to help the claimant in the upgrading of his Champers KTV Lounge ("the Lounge"). After the claimant came to know that the police were investigating allegations of murder with regard to the Director, the claimant decided to leave his job as the Manager of the Cafe and started his own business. However, the Director called him back to work as a Manager for the Cafe and promised to help him in his personal business as per the Director's letter dated 23 November 1997.

The claimant had prayed for reinstatement without loss of salary and other benefits that he is entitled to and any other reliefs that the Court deems fit to grant.

Issue for Determination

The main issues in this case are:

(1) whether there was a dismissal of the claimant by the company; and

(2) if there was a dismissal, whether it was with just cause or excuse.

The Law

It is trite law that where the employer gives a reason for terminating the services of the employee it is incumbent upon the employer to justify the reason advanced.

Conclusion And Finding

On the facts of the instant case, the company did not only fail to p