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2023 MarsdenLR 2142
INDUSTRIAL COURT KUALA LUMPUR
WONG SWEE CHEE – Appellant
Versus
AH YAT ABALONE FORUM RESTAURANT SDN BHD – Respondent
Award No: 1638 Of 2023 [Case No: 19/4-1436/21]
The employer bears the burden of proof to justify dismissal, and failure to provide evidence leads to a conclusion of unjust dismissal.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal - Claimant dismissed without just cause or excuse due to alleged financial difficulties from Covid-19 pandemic - Employer failed to prove justification for dismissal - Claimant entitled to reinstatement and back wages amounting to RM232,870. (Paras 1, 27, 39, 46)
(B) Burden of Proof - Employer must prove just cause for dismissal - Failure to provide evidence leads to conclusion of unjust dismissal. (Paras 21, 34)
(C) Standard of Proof - Civil standard of proof on a balance of probabilities applies in dismissal cases. (Paras 22, 30)
| Table of Content |
|---|
| 1. employment details and dismissal context (Para 1 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 2. onus of proof on employer for dismissal justification (Para 17 , 18 , 19 , 20) |
| 3. burden of proof and standard in dismissal cases (Para 21 , 22 , 23) |
| 4. ex-parte hearing and its implications (Para 24 , 26 , 27 , 28) |
| 5. criteria for justifiable dismissal (Para 29 , 30 , 31 , 32 , 33) |
| 6. lack of evidence from employer for dismissal (Para 34 , 35 , 36) |
| 7. court's finding on dismissal validity (Para 38 , 39) |
| 8. remedies and compensation awarded (Para 40 , 41 , 42 , 43 , 44 , 45) |
Reference
[1] This is a reference by the Honourable Minister of Human Resources, under s 20(3) of the Industrial Relations Act 1967 dated 8 April 2021 pertaining to the dismissal of Tan Kang Loog (hereinafter referred to as "the Claimant") by Ah Yat Abalone Forum Restaurant Sdn Bhd (hereinafter referred to as "the Company") on 30 September 2020.
Procedural History
[2] Pursuant to the Court's directive on a date fixed for hearing on 25 April 2022 held before the Chairman, the parties were ordered to file the relevant pleadings on specified dates and fixed for hearing on 20 February 2023 and 21 February 2023. It must be noted that in both occasions, the Claimant was present while the Company had been in absent.
[3] Hence, this case was ordered to proceed with the hearing Ex-Parte because for the purpose of this award, this Court had only considered the Claimant's Statement of Case, the Claimant's Bundle of Documents marked as CLB1, the Claimant's Witness Statement marked as CLWS1 and the Claimant's Written Submission.
[4] This case was heard jointly with Case Nos 19/4-1432/21, 19/4-1433/21, 19/4-1434/21, 19/4-1435/21, 19/4-1436/21, 19/4-1775/21 on 13 April 2023. The hearing was proceeded by way of ex-parte hearing due to absent of the Company.
Facts
[5] By a letter of employment dated 13 March 2003, the Claimant was employed by the Company as an Assistant Chef subject to the terms and conditions of the letter of employment.
[6] Effective 1 July 2003, the Claimants was confirmed due to his good performance and his basic salary was increased to RM3,900.00 per month.
[7] Effective 1 April 2004, the Claimant's basic salary was increased to Rm4,200.00 per month.
[8] Effective 1 November 2012, the Claimant's basic salary was increased RM5,500.00 per month.
[9] Effective 16 May 2017, the Claimant's basic salary was increased to RM5,800.00 per month.
[10] Around December 2018, the Claimant was promoted to 1st Chef and his basic salary was increased to RM8,900.00 per month.
[11] On 7 May 2020, the Company notified the Claimant that the Company will only make payment of RM1,200.00 for the month of April 2020 and the Claimant agreed to accept such salary reduction only for the month of April 2020.
[12] The Company went on with the pay-cut and only made a payment of RM1,200.00 though the Claimant did not sign any consent to a pay-cut for the month of May 2020.
[13] The Company further imposed a continuity of the Claimant's salary reduction of 50% from RM8,900.00 to RM4,450.00 and fixed allowance reduction from RM600.00 to RM300.00 from June 2020 until September 2020.
[14] The said salary and fixed allowance reduction were done unilaterally by the Company. The Claimant did not sign any consent to the pay cut.
[15] On 30 September 2020, the Claimant was dismissed from her service with immediate effect and the Company uses the reason of financial difficulties due to Covid-19 pandemic as a reason of laying off.
[16] On the date of his dismissal, the Claimant was denied of any severance package nor was he offered any lay off benefits by the Company in view of two years and 1 month of his service for the Company.
Claimant's Case
[17] On 30 September 2020, the Claimant was dismissed from his service with immediate effect without compensation and the Company used the reason of financial difficulties due to Covid 19 pandemic as a reason of laying off.
[18]
