THIS MATTER was referred to court by way of a ministerial reference under section 20(3) of the Industrial Relations Act, 1967, on the 30th January 2004 and was received by the court on 1st March 2004.

The reference papers were properly filed and duly served on the Company. However, time and again the Company declined appearance. Neither were any representative nor counsel appointed to appear and act on its behalf. Up to date the Company has yet to enter appearance or file any pleadings nor submit any documents relevant to their case. Wherefore, in the interest of justice, I decided to proceed with the hearing of this reference on an ex-parte basis.

The Claimant commenced employment with the Company as a General Manager on the 16th June 2001 vide Letter of Appointment exhibited as Appendix 1 attached to his Statement of Case (SOC) with a starting salary of RM6,500.00 per month plus petrol allowance of RM300.00 per month. He was placed on a 6 months probationary period which was to be completed on the 17th November 2001.

By letter dated 13th October 2001, shown as Appendix 2 attached to his SOC, the Company informed the Claimant that his services had been terminated with immediate effect for the reasons enumerated in paragraphs 1, 2, 3 and 4 therein.

The Claimant denied all the allegations altogether and contended that his alleged negligence and non-perfomance was never brought to his attention and that the said allegations was baseless. There were no warnings, verbal or otherwise given to him in respect of his alleged arrogant ways. Equally he was never told of any complaint from the Company's consultants, sub contractors or workers at site or from his own subordinates. It was his further contention that the Company's allegation that he did not attend to his duties is also without basis. On the final allegation, the Claimant testified that the punch card system was only introduced from 1st October 2001 and prior to that he was recording his attendance in the Company's attendance book. He added that through out the period he was with the Company he was not shown of any record of his coming late to work. Additionally the Claimant testified that he was never given any show cause letter and no domestic inquiry was ever convened against him.

The Claimant therefore contends that his dismissal was without just cause or excuse and amounts to an unfair labour practice and applied to be reinstated to his former position without loss of wages, seniority or benefits, whether monetary or otherwise.

It has been restated over and over that the burden is upon the Company to show by evidence that the excuse or reasons given to terminate the Claimant's employment has been made out. If it fails to do so, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. (See Goon Kwee Phong v. J & P Coats (M) Bhd. [1981] 2 MLJ 129); Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. & Anor [1995] 3 CLJ 344. Additionally, the Federal Court in Milan Auto Sdn. Bhd. v. Wong She Yen [1995] 4 CLJ 449; [1995] 3 MLJ 537, held that the function of the Industrial Court in a reference under 0section 20 of the Industrial Relations Act, 1967, to be 2 folds - first to determine whether the alleged misconduct has been established and secondly, whether the proven misconduct constitute just cause or excuse for the dismissal.

In this reference before me, as noted earlier, the Company declined appearance and has not entered any pleadings nor filed any documents to substantiate their case. The Company was also absent during the entire course of the hearing of this reference to present their side of the evidence or to challenge the evidence adduced by the Claimant.

In the circumstances, therefore the entire testimony of the Claimant was never challenged nor rebutted by the Company. It stood uncontroverted. By the Company's absence and not giving evidence, the Company had failed to discharge the onus that the dismi