Constructive dismissal occurs when an employer fundamentally breaches contract terms, allowing the employee to resign and claim damages.

[1] The Ministerial reference in this case required the Court to hear and determine the Claimants complaint of dismissal by the Company on 4 October 2016 and was received by the Industrial Court on 6 March 2017.

Background Of The Case

[2] The Company which was involved in the business of providing advertising services is registered in Sydney, Australia. The Company operated an office in Desa Seri Hartamas, Kuala Lumpur and had registered it with Suruhanjaya Syarikat Malaysia as Ultimate Media Group Sdn Bhd where the Claimant had worked. The Claimant claimed constructive dismissal on 4 October 2016. The case was fixed for mention on 13 April 2017, 16 May 2017, 19 June 2017, 19 July 2017, 3 August 2017 and 5 September 2017. On each mention date, the Companys representative was absent although the notices for mention had been served on the Companys registered address in Kuala Lumpur. On 5 September 2017, the Court fixed the hearing date on 5 October 2017 and ruled that if the Company failed to attend on that date, the hearing will proceed albeit ex-parte.

[3] On 5 October 2017, the Company failed to attend the hearing although the Notice of Hearing was served on it on 13 September 2017 at its registered address in Kuala Lumpur. Hearing commenced and ended on 5 October 2017 whereby the Claimant was represented by her counsel who had made an application for an ex- parte hearing to be conducted accordingly.

Ex-Parte Hearing

[4]Subsection 29(d) of Act 177 provides for an ex-parte hearing without the presence of one of the parties to the dispute as follows:

"The Court may, in any proceedings before it:

(a) .....

....

(d) hear and determine the matter before it notwithstanding the failure of any party to submit any written statement whether of case or reply to the Court within such time as may be prescribed by the President or in the absence of any party to the proceedings who has been served with a notice or summons to appear.".

[5] OP Malhotra, The Law of Industrial Disputes Vol 1: 6th Edn, at p 1062 states:

"If, however, a party wilfully absents himself in such a way that the adjudication is likely to be impede, or wilfully tries to delay or avoid the proceedings, the tribunal may fix a preemptory hearing on a particular day. After reasonable notice of hearing has been given to the defaulting party, if he still neglects or refuses to attend, the tribunal may and ought to hear in his absence. Prompt discharge of business is of particular importance before a tribunal adjudicating an industrial dispute....".

[6] Therefore, the Court was of the view that in the circumstances of this case, an ex- parte hearing was warranted due to the Companys failure to attend Court although the Notice of Hearing and the earlier Notice of Mention had been served on it as stated above.