AWARD

Amelia Tee Hong Geok Abdullah:

[1] The parties to the dispute are DTS Trading Sdn. Bhd. ("the claimant") and Wong Weng Kit ("the claimant"). The dispute between the parties arose out of the dismissal of the claimant by the company on 23 October 2003.

[2] It is the claimant's contention that he was dismissed by the company on 23 October 2003. Vide para. 4 of the Statement of Case (SOC), the claimant alleges that the company had, vide its letter dated 23 October 2003, terminated his appointment with the company with effect from that same date. Vide para. 6, he pleads that his dismissal was without just cause or excuse and/or in breach of the principles of natural justice and/or an unfair labour practice and/or unlawful and/or a colorable exercise of the company and/or an act of mala fide of the company's management.

[3] It is the company's contention that the claimant was not employed by the company but by DTS Marketing (Malaysia) Sdn. Bhd. (para. 3 of the Statement in Reply). In para. 4, it avers that the company, out of a good intention to help the claimant, gave him temporary employment but had warned him to find another more suitable job. It further avers that after 2 years of operation, the company asked the claimant to leave as it was not doing well and this was accepted by the claimant.

[4] In the case of Wong Chee Hong v. Cathay Organisation (Malaysia) Sdn. Bhd. , Y.A.A. Salleh Abas L.P. had this to say at p. 302:

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 at p. 303:

The next question is this: Is the dismissal with a just cause or excuse? Since the appellant has succeeded in showing that he was dismissed, it is for the respondent company to show that the dismissal was with a just cause or excuse.

[5] The case of Weltex Knitware Industries Sdn. Bhd. v. Law Kar Toy & Anor sheds further light. There, his lordship Abdul Kadir Sulaiman J had this to say:

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 a dismissal was done with just cause or excuse ... However, where the fact of dismissal is in dispute, it is for the workman to establish that he was dismissed by his employer.

[6] Reading these two authorities together, it is clear that if the fact of dismissal is not in dispute, the burden would be on the company to satisfy the Court that such dismissal was done with just cause or excuse. However, where the fact of dismissal is disputed, it is for the workman to establish that he was dismissed by his employer. In this case, the Court is satisfied that the company is disputing that it is in fact the claimant's employer and hence the fact of dismissal. The burden thus falls on the claimant to prove that the company is his employer as well as the fact of his dismissal. In light of such circumstances, the Court thus directed the claimant to start the case.

The Claimant's Case

[7] In his witness statement, the claimant states that he was employed by DTS Marketing (M) Sdn. Bhd. ("DTS Marketing") since May 1996 and that effective January 2000 his services were continued under the company. He was appointed as a Technician by DTS Marketing and continued in such position with the company.

[8] The claimant told the Court that his boss at DTS Marketing was Mr. Hoong Tuck Chuen (COW1) who held the position of Director. He testified that DTS Marketing did not tell him that they were closing shop or that he was dismissed. No termination or dismissal letter was ever issued to the claimant by DTS Marketing.

[9] The claimant states that when he continued employment with the company in January 2000, his position was the same as that in DTS Marketing, namely that of a Technician. There was no change to his job functions or his working hours and his superior was still Mr. Hoong who was the one who paid his salary each month. The company in f