AWARD

The dispute is over the claimant's dismissal by the company on 6 December 2001.Vide letter of 23 October 2002 from the Minister of Human Resources the matter was referred to the Industrial Court for an award under s. 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as "the Act").

The case which was originally fixed for hearing on 6 August 2003 had been postponed three times, twice at the request of the company's counsel.

On the subsequent day of hearing on 8 December 2004 the company's counsel was again absent. The Court was not informed of the reason for his absence and neither was there a representative from the company present in Court. At 9.30am on the application of the claimant's representative, Peter Kandiah, the Court proceeded to hear the case exparte under s. 29(d) of the Act .

The facts of the case according to the claimant are these:

He was employed by the company as a production supervisor on 27 July 1994 with a starting salary of RM1,600 per month vide letter of appointment (CL2). His last position with the company was as a quality management representative manager and his last drawn monthly salary was RM4,289. By a letter of 3 December 2001 the claimant was offered the voluntary separation scheme (VSS) but he refused to accept this vide letter of 6 December 2001. He was the only one in management who was offered the VSS. Subsequently on 6 December 2001 he was forced to sign the letter of "Surat Tawaran Pemberhentian Kerja" after being threatened by the human resource manager. However he put in the words "dengan bantahan" before his signature to denote his protest.

It is the claimant's submission that he was forced to resign and take the termination benefits. He contends that if the company had indeed retrenched him, it failed to adhere to proper procedures. Hence he submits he had been dismissed without just cause or excuse and he prays for reinstatement.

It is the duty of the Court to determine whether the claimant was dismissed for just cause or excuse. See Wong Yuen Hock v. Hong Leong Assurance & Another Appeal, [1995] 2 MLJ 753 and Milan Auto Sdn. Bhd. v Wong Seh Yen; [1995] 3 MLJ 537; [1995] 4 CLJ 449; [1996] 1 AMR 049 . The burden of proof lies on the company to establish through adducing convincing and compelling evidence that the claimant was dismissed for just cause or excuse. The just cause must be either misconduct, poor performance or retrenchment.

In this case although it has filed a Statement in Reply the company failed to appear in Court to adduce evidence through its witnesses and to discharge its burden of proof. The Court is unable to get it's version of the story and hence the claimant's evidence is uncontroverted. Accordingly the Court has no alternative but to find that the claimant was dismissed without just cause or excuse.

Remedy

As for the remedy sought the Court is of the considered view that reinstatement is no longer appropriate and will order compensation in lieu instead.

The claimant gave evidence that he is now gainfully employed. Since 11 February 2004 he has been working with Zeito Plantation Components Sdn Bhd and his salary is RM4,300 per month. Before that from eight to nine months he was employed by United More Sdn. Bhd. and he was paid a monthly salary of RM3,000.

In the circumstances it is fair and reasonable that an adjustment be made to an award of backwages. See Koperasi Serbaguna Sanya Bhd. Sabah v. Dr. James Alfred & Mahkamah Perusahaan Malaysia, [2000] 4 MLJ 87 .

The Court hereby orders the company to pay the claimant as follows:

a) Backwages for 24 months less 50%

i.e. RM4,289 x 24 months = RM102,936

less 50% = RM51,468

b) Compensation in lieu of reinstatement i.e. one month's pay for every year of service (27 July 1994 to 8 December 2004)

ie, RM4,289 x 10 months = RM42,890

The claimant had already received RM23,320.73 as termination benefits as well as two months pay in lieu of notice on 6 December 2001. Therefore this amount of RM31,898.73 will be deducte