Persistent late salary payments and non-payment of statutory contributions constitute a fundamental breach of employment contract, justifying constructive dismissal.

AWARD

Andersen Ong Wai Leong:

A. Reference

[1] This is a reference from the Director General for Industrial Relations to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 as amended by the Industrial Relations (Amendment) Act 2020 (A1615) ("the IRA 1967"), in respect of the dismissal of Siti Masaini Binti Md Idros ("the Claimant") by her employer, Siti Healthcare Sdn Bhd ("the Company") on 23 June 2023.

B. Ex Parte Hearing

[2] The matter was called up for trial on 9 July 2024, in the presence of the Claimant's Counsel, Mr Dennis Lim Hon Woon and the Claimant. The Company's Counsel and/or the Company's representative were absent.

[3] When this matter was first called up for e-mention on 22 February 2024, one, Encik Kamal Hadi Bin Ahmad Zaki of Messrs Hadi & Hakim, attended the e-mention on behalf of the Company.

[4] He informed the Court that he had been appointed by the Company as the Company's counsel for this matter. The Court directed him to file Form A (Application For Permission To Be Represented By A Legal Practitioner) and Form B (Warrant of Authority) for his appointment and representation.

[5] The Court also gave directions to the parties for filing of pleadings and the relevant documents. The parties were then informed of the subsequent return dates including the trial dates on 9 July 2024 and 10 July 2024.

[6] Encik Kamal was absent without providing any reason or prior notification to the Court on the subsequent mention date on 12 June 2024. Only Mr Dennis Lim was appeared on behalf of the Claimant.

[7] On 18 June 2024, when the matter was again called up for mention cum hearing of the Claimant's application to amend the Statement of Case (Enclosure 18A), both Encik Kamal and Mr Dennis Lim were present in Court .

[8] Encik Kamal informed the Court that the Company has no objection to Claimant's application to amend the Statement of Case subject to the right to file the Statement in Reply.

[9] By an interim award no 1032 of 2024, handed down on 11 July 2024, the Court allowed the Claimant's application to amend her Statement of Case (Enclosure 18A).

[10] When the matter was eventually called up for trial on 9 July 2024, both Encik Kamal and the Company's representatives were absent from Court . Mr Dennis Lim informed the Court that Mr Kamal contacted him in the morning and requested a postponement of the matter.

[11] Mr Dennis also informed the Court that he has objections to Mr Kamal's last minute request for a postponement and stated that the Claimant was present in Court , ready for the trial.

[12] The Company, for reasons best known to itself only, opted not to attend Court and/or to defend the Claimant's claims or case against the Company. The Company has also failed to file any documents in Court , to date including the Statement in Reply despite being repeatedly instructed to do so.

[13] The Claimant on the other hand had duly filed all the relevant cause papers and documents as directed by the Court . The Claimant requested to proceed with the hearing of her claims and/or case against the Company in the absence of the Company's representatives and counsel on 9 July 2024.

[14] The Court , in exercising its power under s 29(d) of the Industrial Relations Act 1969 ("the IRA ") had allowed the Claimant's application and ordered that this matter shall be heard ex parte on 9 July 2024.

[15] The role of the Court in an ex parte hearing was lucidly explained by OP Malhotra in the Law of Industrial Disputes, Volume 1, 6th Edition at page 1063 where the learned author said as follows:

"A rule empowering the tribunal to proceed ex parte if a party is absent and sufficient cause is not shown for his absence, would not enable it either to do away with the inquiry or to straightaway pass an award without giving a finding on the merits