The employer bears the burden to prove lawful dismissal; failure to do so results in a finding of unfair dismissal.

The Reference

[1] This is a reference dated 17 March 2021 by the Honourable Minister of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the alleged dismissal of LIM EE WAN ("Claimant") by CHEETAH INTERNATIONAL EXPRESS SDN BHD ("Company") on the 10 June 2020.

[2] Pursuant to the directions of this Court, the parties in this matter filed their respective submissions dated 21 December 2022 (Claimant's written submissions), 23 December 2022 (Company's written submissions) and 19 January 2023 (Claimant's written submissions in reply)

[3] This Court considered all the notes of proceedings in this matter, documents and the cause papers in handing down this Award namely:

(i) The Claimant's Statement of Case dated 5 May 2021;

(ii) The Company's Statement in Reply dated 9 November 2021;

(iii) The Claimant's Rejoinder dated 23 November 2021;

(iv) The Claimant's Bundle of Documents - CLB;

(v) The Claimant's Document - CL2

(vi) The Company's Bundle of Documents - COB1 & COB2;

(vii) The Claimant's Witness Statement - CLW - WS (1) & CLW- WS(2);

(viii) Company's Witness Statement - COW1- WS (Lim Chi Tong);

(ix) Company's Witness Statement - COW2- WS (Pang Yong Kang);

Introduction

[4] The Claimant commenced employment with the Company on the 1 October 2019 as an administrative manager with a basic salary of RM3,000.00 and a monthly fixed allowance of RM300.00. From the documents before this Court it is apparent the Claimant was not furnished with a written contract of employment. Instead the Claimant was given a letter dated 10 September 2019 captioned "Recruitment Offer Letter For Miss Lim Ee Wan" and nothing more with regards to her employment with the Company. It is the Claimant's version that the Company did not pay her salary for the month of May 2020 and had also failed to contribute her monthly EPF and SOCSO statutory contribution for the period of February 2020 till May 2020 which prompted the Claimant to demand from the Company what is due to her on the 10 June 2020. The Company's managing director one Lim Chi Tong was displeased with the Claimant's demand and had then paid a reduced amount not equivalent to her salary and has told her to leave the Company on the 10 June 2020 without even giving the Claimant a termination letter to dismiss her from her employment with the Company. The Claimant now states that she has been unreasonably, unilaterally and without just cause or excuse dismissed from her employment by the Company and prays that she be reinstated to her former position in the Company with no loss of wages and other benefits.

[5] The Company's version is markedly different from the Claimant's version. The Company states that the Claimant was asked to carry out her responsibilities in the Company on the 9 June 2020 but had refused. On the 10 June 2020, Lim Chi Tong has asked the Claimant to do some work and the Claimant refused and instead screamed at Lim Chi Tong and demanded that her salary be paid for the first 10 days of June 2020 as she wanted to resign and stop working any further for the Company. The Company paid the Claimant her salary and upon receiving her salary, the Claimant left the Company's premises. The Claimant resigned from her employment with the Company voluntarily. The Company maintains that the Claimant was not dismissed from her employment by the Company and instead states that the Claimant has voluntarily resigned and has left the Company on the 10 June 2020. The Company states that the Claimant's contention the she was dismissed from her