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2023 MarsdenLR 626
INDUSTRIAL COURT ALOR SETAR
MOHD KHAIRI MUSTAFA ZAHARI – Appellant
Versus
ZETRO SERVICES SDN BHD – Respondent
Award No: 1699 Of 2023 [Case No: 18/4-1419/22]
The absence of a claimant in industrial proceedings can lead to the presumption of abandonment of the claim, justifying dismissal by the court.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Claimant's case dismissed due to repeated absences and failure to file Statement of Case - Court held that absence signifies abandonment of claim and dismissal was justified - Claimant failed to present evidence to rebut employer's case - Burden of proof lies with employer. (Paras 22, 27, 31)
(B) Ex-parte hearings - Principle established that if a party is absent without good reason, the Tribunal may proceed ex-parte - Conduct of Claimant deemed contumacious, justifying dismissal of case. (Paras 15, 17)
Facts of the case:
The Claimant was dismissed by the Company and subsequently failed to attend multiple court mentions and hearings despite being duly notified, resulting in the Court proceeding ex-parte. (Paras 1-12)
Findings of Court:
The Claimant's absence and failure to file necessary documents led the Court to conclude that he abandoned his claim, and the Company’s position was unchallenged. (Paras 29, 31)
Issues: The primary issues included whether the Claimant's dismissal was with just cause and whether the Claimant's conduct indicated abandonment of his claim. (Paras 23, 31)
Ratio Decidendi: The Court ruled that the Claimant's repeated absences indicated a lack of interest in pursuing the claim, leading to the conclusion that the dismissal was justified and the claim was abandoned. (Paras 27, 31)
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. court proceedings initiated under the industrial relations act. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 2. court's authority to proceed ex-parte due to claimant's absence. (Para 13 , 14 , 15 , 16 , 17) |
| 3. burden of proof lies with the employer in dismissal cases. (Para 18 , 19 , 20 , 21 , 22 , 23) |
| 4. absence of claimant leads to presumed abandonment of claim. (Para 24 , 25 , 27 , 29 , 30) |
| 5. failure to comply with court directions results in case dismissal. (Para 26 , 28) |
| 6. claimant's case dismissed due to lack of evidence and absence. (Para 31) |
Reference
[1] This is a reference made on 11 October 2022 by the Director General of the Industrial Relations Department to the Industrial Court of Malaysia under Section 20 (3) of the Industrial Relations Act 1967 (hereinafter referred to as 'the Act') arising out of the dismissal of MOHD KHAIRI BIN MUSTAFA ZAHARI (hereinafter referred to as 'the Claimant') by ZETRO SERVICES SDN. BHD. (hereinafter referred to as 'the Company') on 29 June 2021. The Director General's reference in this case before the Court requires the Court to hear and determine the Claimant's complaint of dismissal by the Company.
Background
[2] Pursuant to the Director General's reference dated 11 October 2022, this matter was fixed for mention on 21 November 2022 wherein the Assistant Manager of the Company Puan Siti Maheran was present however the Claimant was not present when the matter was called up before me. The Claimant was notified of the said mention date via Form F which was posted to him by way of AR Registered Post on 25 October 2022 and was acknowledged receipt on 31 October 2022.
[3] The Court then fixed 13 December 2022 as the next mention date. A letter from this Court dated 22 November 2022 notifying the Claimant of the next mention date was also sent by A.R Registered Post which was acknowledged receipt on the 29 November 2022. An email dated 22 November 2022 was also sent to the Claimant to this effect.
[4] On 13 December 2022, Puan Siti Maheran appeared for the Company however the Claimant was absent. The Court then fixed 16 January 2023 as the next mention date. A letter from this Court dated 13 December 2022 notifying the Claimant of the next mention date was sent by AR Registered Post and was acknowledged receipt on the 18 December 2022.
[5] On 16 January 2023, Puan Siti Maheran appeared for the Company however the Claimant was again absent. The Court then fixed 2 February 2023 as the next mention date.
[6] On 2 February 2023, Puan Siti Maheran appeared for the Company however the Claimant was again absent. The Court then fixed 28 February 2023 as the next mention date.
[7] On 28 February 2023, the matter was called up for mention before the Assistant Registrar of this Court with only the Company's representative appearing before the Court and the Claimant was absent again. The Court then decided to fix another mention date on 25 April 2023 at 10.00 am and also proceeded to fix hearing dates on 26 July 2023 and 27 July 2023 at another division of this Court in Alor Star, Kedah Darul Aman. At this time the Claimant has still not filed his Statement of Case and Bundle of Document despite being served a notice via Form H dated 21 October 2022 which was sent by A.R Registered Post and was acknowledged receipt on the 31 October 2022.
[8] This Court then informed the Claimant of the hearing dates via Form G, the Notice of Hearing and the same was sent to the Claimant by AR Registered Post on 1 March 2023 and the A.R card was acknowledged receipt on 5 March 2023.
[9] On 25 April 2023, when the matter was called before the learned Assistant Registrar only the Company's counsel, Ms Peyton Teo was present. With the absence of the Claimant the Court then fixed the matter for mention on the 24 May 2023. Even up to this time the Claimant had failed to file his Statement of Case and the Court directed the Company to file their witness statement. A letter dated 25 Apr
