The failure to pay salaries constitutes a fundamental breach of an employment contract, justifying an employee's claim for constructive dismissal.

Reference

[1] This is a reference by The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 ('the Act') in respect of the dismissal of Sylvain Marcel Jacques Perret (hereinafter referred to as "the Claimant") by his employer Nearbuy South East Asia Sdn Bhd (hereinafter referred to as "the Company") on 3 October 2019.

Preliminary

[2] The Claimant filed an Application (Encl 43A) for an Order that Darayus Happy Minwalla (DHM) who is the Chairman of Nearbuy Group of Companies be joined as a party to the proceedings and the Application was supported by the Claimant's Affidavit In Support. The Court having heard the Application had vide Award No 627 of 2023 ordered that the Chairman of Nearbuy Group of Companies, the proposed joinee be joined as a party in this proceedings, Hereinafter, the Company and the Joinee are, for convenience jointly referred to as "the Respondents".

[3] The Claimant who is a Frenchman, had resided in Malaysia under a working visa during his employment with another company known as Nearbuy Group Ltd which is part of the Nearbuy Group of Companies vide an Employment Agreement dated 1 April 2018, in which the Claimant held the position of General Manager Asia.

[4] Approximately three (3) months later, the Claimant was offered the position of General Manager Asia in the Company which is a Malaysian subsidiary in the group of companies vide Employment Agreement dated 1 July 2019.

[5] On 3 October 2019, the Claimant via an email dated 3 October 2019 to the Company, tendered his resignation letter claiming constructive dismissal on reasons that the Company had failed to pay his outstanding salaries for the months of January 2019 and May to September 2019 which total up to AED 212, 243.51.

[6] On the date of the hearing, the Claimant's counsel had informed the Court that the Claimant would wish to proceed the case for trial despite the absence of any representative from the Company. By an Interim Award No 2457 of 2022 handed down by the previous Chairman of Court 6, the Claimant's counsel had informed the Court that the relevant cause papers had been served to the Company in accordance with the required mode of service that is by advertisement in the paper and posting to the last known address of the Company. Having satisfied that the prescribed mode of service had been complied with the Court note that the Respondents were not present to defend the constructive dismissal claim and neither did they file any document to that effect. In fact, despite issuing the relevant Court Forms, the Respondents did not make any effort to be present before this Court.

[7] On the application by the Claimant's counsel that the case be proceeded by way of ex parte hearing in the absence of the Respondents, it is necessary to understand the role of the Court in adjudicating in an ex parte hearing and the accompanying principles.

The Law On Ex Parte Hearing

[8] The role of the Industrial Court in an ex parte hearing was lucidly explained by OP Malhotra in the Law of Industrial Disputes, Volume 1, 6th Edition at page 1062 where the learned author stated 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 tr