In constructive dismissal cases, the employer bears the burden to prove just cause for dismissal when the dismissal is not disputed.

AWARD

Salahudin Hidayat Shariff:

Reference

[1] This is a reference dated 22 January 2024 made by the Director General of Industrial Relations pursuant to subsection 20(3) of the Industrial Relations Act 1967 [Act 177] arising out of the dismissal of Goh Yeh Wei @ Gho Yeh Wei ("the Claimant") by TG Shared Service Sdn Bhd ("the Company") on 7 September 2023.

Brief Facts

[2] The Claimant was appointed as an Accountant of the Company on 7 June 2023 via Letter of Appointment dated 1 June 2023. The Letter of Appointment expressly provides for a probationary period of three to six months. There is no letter of confirmation issued to the Claimant.

[3] The Company is the Malaysian subsidiary of a Singapore company. The Company is situated at SO-31-5, Menara 1, No 3, Jalan Bangsar, KL Eco City, 59200 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur.

[4] The Claimant contends constructive dismissal since the Company forced the Claimant to resign on 7 September 2023.

[5] The facts of the case are given as regards one side only, the Claimant's. The Company did not file any document in this case.

[6] The Court proceeded this case ex-parte because the Company did not attend the proceedings. The Court proceeded with the case ex-parte although there was no proof of service on the Company on the grounds that the Court will state in the Award.

[7] The Court has gone through the evidence as given through testimony in Court and the documents that have been filed. Those documents are listed for ease of reference as follows:

(i) Statement of Case dated 19 March 2024;

(ii) Claimant's Bundle of Documents filed on 20 March 2024 marked as exhibit CLB-1;

(iii) Claimant's Witness Statement signed on 18 July 2024 marked as exhibit CLWS-1;

(iv) Claimant's Written Submission (Post-Trial) dated 17 October 2024; and

(v) Claimant's Bundle of Authorities filed on 5 December 2024.

The Decision

The Role Of The Court

[8] The Court had stated its stand on the issue of the role of the Court in earlier reported cases. This has been discussed at length in the cases of Badariah Abdullah lwn. Malaysia Airports (Sepang) Sdn Bhd, Nor Azlina Abd Rahim lwn. Jurukur Perunding Services Sdn Bhd and Chong Jee Fatt v. Tee & C (Malaysia) Sdn Bhd; [2023] 3 ILR 204 where the Court was referring to its role in cases under subsection 20(3) Act 177. The Court also referred to the oft-cited Supreme Court case of Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd; [1987] 1 MLRA 346; [1988] 1 MLJ 92; [1988] 1 CLJ (Rep) 298 and the Federal Court case Goon Kwee Phoy v. J & P Coats (M) Bhd; [1981] 2 MLJ 129. The accepted principles in those cases are clear and needs no further elaboration.

[9] The Court does not intend to repeat itself so parties are free to view the Courts views in those cases regarding the role of the Court . Similarly for the issue of burden and onus of proof which is discussed below.

The Burden And Onus Of Proof

[10] The Court also refers to its previous case with regards the burden of proof as well as adducing evidence in the case. The case is Mohamad Suffian Ismail v. Seacera Group Berhad whereby this Court refers to the Court of Appeal case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor; [2002] 1 MLRA 188; [2002] 3 MLJ 129; [2002] 3 CLJ 314; [2002] 3 AMR 2898 and the case of International Times & Ors v. Leong Ho Yuen; [1980] 2 MLJ 86.

[11] Both the cases cited in the Mohamad Suffian case above are the standard and burden of proof required by the Court and will be used when scrutinising this case. It is important to emphasise these factors because the entire case is beholden to the evidence submitted, the burden and standard of the proof of the case of both parties. Since this matter was heard ex-parte, hence the Claimant must prove his case on the balance of probabilities.

Hearing The Matter Ex Parte

[12] As stated earlier, this matter was heard ex parte. The Court had to make a conscience decision on whether to proceed with t