The employer bears the burden of proof to justify dismissal, especially during probation, and failure to provide evidence results in a finding of unfair dismissal.

AWARD

Rusita Md Lazim:

[1] This is a reference dated 1 April 2024 from the Director General, Department of Industrial Relations Malaysia to the Industrial Court of Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as "the IRA ") in respect of the dismissal of Maha Qurratu Aini Maharazi (hereinafter referred to as "the Claimant") by her employer, HR Brother Frozen Sdn Bhd (hereinafter referred to as "the Company") with effect from 15 September 2023.

A. Procedural History

[2] The Claimant represented by MTUC had first attended the e-mention on 8 May 2024 and 6 June 2024.

[3] The Respondent was absent on the first two dates despite the notice being served. The Court fixed 27 June 2024 for Statement in reply and Bundle of Documents (BOD).

[4] The Respondent's counsel attended Court on 27 June 2024, 15 August 2024 and 13 September 2024.

[5] The Court had already given directions for filing pleadings to both parties as early as 27 June 2024. The Respondent filed their Statement in Reply on 29 August 2024.

[6] Despite a few extension dates given (with or without the Company's Representative appearance), the Company failed to file its Bundle of Documents right up to the hearing date on 16 January 2025.

[7] On the day of the hearing, 16 January 2025, the Company was absent and no Bundle of Documents and Witness Statements have been filed by them in Court . The Court was satisfied that all the relevant notices had been served on the Company via AR Registered.

[8] The Court accordingly exercised its powers under s 29(d) of the Industrial Relations Act 1967 and declared this proceeding to be heard ex parte. Section 29 (d) of the provides:

the Court may, in any proceedings before it, "hear and determine the matter before it notwithstanding the failure of any party to submit any written statement whether of case or reply to the Court within such time as may be prescribed by the President or in the absence of any party to the proceedings who has been served with a notice or summons to appear".

[9] The trial proceeded by way of an Ex Parte Hearing on 16 January 2025 with only the Claimant ("CLW-1") being the sole witness.

[10] This Court had also considered the following cause papers and documents in handing down this Award, namely:

(a) the Claimant's Statement of Case dated 12 June 2024;

(b) the Company's Statement in Reply dated 28 August 2024;

(c) the Rejoinder dated 15 January 2025;

(d) the Claimant's witness statement (Maha Qurratu Aini Maharazi) is marked as "CLWS-1";

(e) the Claimant's Bundle of Documents marked as "CLB-1";

B. Factual Matrix

[11] The Claimant commenced her employment as a Human Resources Executive effective 2 May 2023 vide a Letter of Employment Offer dated 2 May 2023 and with a basic salary of RM2,300.00 (CLB-1 pp 1-4).

[12] The Claimant was on probation for 3 months based on the review from the Company.

C. The Claimant's Case

[13] The Claimant's averments are as follows:

(a) The Claimant was required to serve a probationary period of 3 months which the period would have ended on 1 August 2023;

(b) By way of letter dated 1 September 2023, the Claimant was dismissed from her employment on the grounds of poor performance (which the Claimant denies);

(c) The Company at no time conduct any evaluation and/or assessment of the Claimant's performance;

(d) During the probationary period, the Company never discussed or notified her of its dissatisfaction with her performance;

(e) During her employment with the company the issue of poor performance was not raised by the Company. The Claimant denies that her performance was below satisfactory and puts the company to strict proof thereof;

(f) During her employment with the company she never received any warning letter including oral warning or counselling from the Company in respect of her work performance issue;

(g) By way of her letter dated 15 September 2023, she had written to the Company on her disagreement towards the company's action of