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2023 MarsdenLR 282
INDUSTRIAL COURT PENANG
KOAY KAR HIN – Appellant
Versus
DN CLEANING & SERVICES SDN BHD – Respondent
Award No: 2348 Of 2023 [Case No: 18/4-1012/23]
The court determined that the dismissal of the Claimant was without just cause as the Company failed to appear and provide evidence to rebut the Claimant's claims, resulting in an award of backwages.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) and Section 29(d) - Dismissal from employment - Claimant dismissed by Company without just cause or excuse - Company failed to appear in Court and rebut evidence - Claimant awarded backwages of RM18,000.00 from 1 September 2022 to 22 September 2023. (Paras 1, 31, 36)
(B) Burden of Proof - Employer bears the burden to prove dismissal was with just cause - Claimant must first establish he was dismissed - Burden shifts to employer thereafter. (Paras 16, 17)
(C) Ex-parte Hearings - Court may proceed ex-parte if a party is absent after due notice - Absence of Company deemed contumacious. (Paras 9, 12)
| Table of Content |
|---|
| 1. reference made under industrial relations act. (Para 1) |
| 2. court's mention dates and attendance. (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9) |
| 3. court's power to hear ex-parte. (Para 10 , 11 , 12) |
| 4. role of the industrial court defined. (Para 15) |
| 5. burden of proof in dismissal cases. (Para 16 , 17 , 18) |
| 6. issues to determine in dismissal cases. (Para 19) |
| 7. claimant's evidence regarding dismissal. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 8. effect of unchallenged evidence. (Para 27 , 28 , 29) |
| 9. finding of dismissal without just cause. (Para 31 , 32) |
| 10. award of back wages and final order. (Para 33 , 34 , 35) |
The Reference
[1] This is a reference made on 29 May 2023 by the Director General of the Industrial Relations Department to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as 'the Act') arising out of the dismissal of KOAY KAR HIN (hereinafter referred to as 'the Claimant') by DN CLEANING & SERVICES SDN BHD (hereinafter referred to as 'the Company'). 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 on the 1 September 2022.
Background
[2] Pursuant to the Director-General's reference dated 29 May 2023 the matter was fixed for mention before this Court on 21 June 2023 at 10.00am by way of google-meet. However, both the Claimant and the Company was absent. The parties were informed of the mention date by way of a notice in Form F which was sent by AR Registered Post to the last known address of the parties on 12 June 2023. The Company acknowledged receipt of the said notice by signing on the AR Card on 15 June 2023, however the notice addressed to the Claimant was returned unclaimed. The Court then fixed 6 July 2023 for mention by way google-meet.
[3] On the 6 July 2023, again both the Claimant and the Company was absent. The parties were informed of the mention date by way of a letter dated 22 June 2023 which was sent by AR Registered Post to the last known address of the parties. The Company acknowledged receipt of the said letter on 28 June 2023 by signing on the AR Card, however the letter addressed to the Claimant's was returned unclaimed. The Court then fixed 4 August 2023 as the next mention date by way of google-meet.
[4] On the 4 August 2023, the Claimant and the Company was again absent. The parties were informed of the mention date by way of a letter dated 12 July 2023 which was sent by AR Registered Post to the last known address of the parties. The Company acknowledged receipt of the said letter on 17 July 2023 by signing on the AR Card, however the notice addressed to the Claimant's was returned unclaimed. Directions were then given by this Court for the matter to be fixed for final mention on 18 August 2023 with the physical presence of both parties in Court.
[5] On the 18 August 2023, only the Claimant appeared in Court for the mention of this case and the Company was absent again despite being informed of the date by a letter dated 7 August 2023. The Company acknowledged receipt of the said letter which was sent by AR Registered Post on 8 August 2023 by acknowledging the AR Card. However, the Court informed the Claimant that the Chairman of this Court is away for a meeting in Kuala Lumpur Industrial Court and hence fixed another mention dated on 21 August 2023.
[6] On the 21 August 2023, the Claimant was present in Court however, the Company was absent. The Court was informed by the Claimant that he has no counsel to represent him. The Court takes note that directions were already given by the Assistant Registrar of this Court to the Claimant to file his Statement of Case by the 21 June 2023 however the Claimant has not done so.
[7] This Court then decided to fix the matter for hearing on the 22 September 2023 at 9.30 am. A Notice of Hearing (Form G) dated 22 August 2023 was served on the Company and the Claimant by way of AR
