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2024 MarsdenLR 2977
INDUSTRIAL COURT KUALA LUMPUR
NENG CHAY SEAN – Appellant
Versus
SKC TOURS SDN BHD – Respondent
Award No: 330 Of 2024 [Case No: 5/4-2918/20]
The Claimants failed to prove they were dismissed without just cause, as they abandoned their employment during the pandemic.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal without just cause – Claimants alleged unfair dismissal by the Company during the Covid-19 pandemic – The court held that the Claimants were not terminated but had abandoned their employment without notice – The burden of proof lies on the Claimants to establish dismissal without just cause. (Paras 22-33)
(B) Burden of Proof – The burden lies on the Claimants to prove dismissal on the balance of probabilities, which they failed to do. (Paras 24-30)
Facts of the case: The Claimants were dismissed by the Company during the MCO due to financial difficulties caused by the pandemic. They claimed unfair dismissal, while the Company argued that the Claimants abandoned their employment. (Paras 4-10)
Findings of Court: The court found that the Claimants had not been terminated and had failed to prove their case of dismissal without just cause. (Paras 29-33)
Issues: Whether there was a dismissal and if so, whether it was with or without just cause or excuse. (Paras 22)
Ratio Decidendi: The court ruled that the Claimants did not establish that they were dismissed; thus, the issue of just cause did not arise. (Paras 30-33)
Result: Claimants' cases dismissed.
AWARD
Reference
[1] These are references made under subsection 20 (3) of the Industrial Relations Act 1967 ("Act") arising out of the dismissal of Ho Foong Lian, Neng Chay Sean and Sia Pei Kee ("Claimants") by SKC Tours Sdn Bhd ("Company") on the 31 May 2020.
[2] The Ministerial references in these cases required the court to hear and determine the Claimants' complaint of dismissal by the Company on 31 May 2020.
[3] This court considered the notes of proceedings, documents and cause papers in handing down this Award namely:
(a) Statements of Case dated 19 January 2021;
(b) Statements in Reply dated 21 June 2021;
(c) Rejoinder dated 4 August 2021;
(d) Claimants' Documents;
(e) Company's Bundle of Documents - COB-1, COB-2, COB-3;
(f) Claimants' Witness Statement - CLWS-1 (Ho Foong Lian) CLWS-2 (Sia Pei Kee), CLW-3 (Neng Chay Sean)
(g) Company's Witness Statement - COWS-1 (Lim Chew Kwee), COWS-2 (Loo Kok Seong)
(h) Claimants' Written Submission and Reply
(i) Company's Written Submission and Reply
Background
[4] The disputes before this court are the claims by the Claimants that they had been dismissed from their employment without just cause or excuse by the Company on the said respective date.
[5] The Company is involved in travels agency business and provides outbound tour packages from Malaysia to other countries.
[6] During March until April 2020, there was an outbreak of the Covid-19 pandemic in Malaysia and the rest of the world. The Government of Malaysia has imposed a Movement Control Order (MCO) on 18 March 2020 until 29 April 2020 and further lockdowns until 26 January 2021.
[7] As a result, the Company had gone out of business and closed its business operations during MCO and its lockdowns.
[8] On 22 May 2020, the Company and the employees had a meeting to discuss about the way forward for the Company. It was agreed that the Company be closed in light of the consecutive losses in the past few years.
[9] It was proposed a mutual separation between the Company and the employees whereby the Company would pay the employees 1 month's salary as an ex-gratia payment.
[10] On 1 June 2020, the Claimants filed a representation for reinstatement and alleged to have been dismissed by the Company on 31 May 2020.
The Duty Of The Industrial court
[11] The Supreme court in the case of Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd , [1988] 1 MLJ 92 held that:
"When the Industrial court is dealing with a reference under s 20, the first thing that the court will have to do is to ask itself a question whether there was a dismissal, and if so, whether it was with or without just cause or excuse.".
[12] The Federal court in the case of Goon Kwee Phoy v. J & P Coats (M) Bhd, held that:
"Where representations are made and are referred to the Industrial court for enquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse"
The Burden Of Proof
[13] The High court in the case of Weltex Knitwear Industries Sdn Bhd v. Law Kar Toy & Anor, held that:
"The law is clear that if the fact of dismissal is not in dispute, the burden is on the company to satisfy the court that such dismissal was done with just cause or excuse. This is because, by the 1967 Act, all dismissal is prima facie done without just cause or excuse. Therefore, if an employer asserts otherwise the burden is on him to discharge"
The Standard Of Proof
[14] In the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor, , the court laid down the principle that the standard of proof that is required is one that is on the balance of probabilities.
"Thus in hearing a cl
