AWARD

Background

1. This dispute involves the dismissal of Mohd. Rashid bin Mohd. Ibrahim the Claimant by his employer Uncang Emas Sdn. Bhd. on 01.09.2003. The Claimant commenced employment with MBF Property Services Sdn. Bhd. on 03.12.1993 which was these taken over by the Company with effect from 01.06.1998. The Claimant contends that for the purposes of computing the length of service with the Company, his services with MBF Property Services Sdn. Bhd. should be deemed continuous.

2. The Claimant had filed his Statement of Case on 07.11.2005 but the Company had not filed in their reply. At the hearing on 31.03.2005 the Court was told that the Company had gone under receivership and the Company's solicitors M/S Sarbjit & Co. informed the Court that the Company had been would up on 07.12.2005. M/S Sarbjit & Co. has been appointed solicitors for the receiver of the Company which is M/S Ernst & Young. M/S Sarbjit & Co. had informed the Court that they have not been appointed to act for the liquidator and had no instruction to file a Statement in Reply on their behalf. The Court directed that the liquidator appoints their solicitors if need be to file in their Statement in Reply and set 5th - 6th February 2007 for hearing.

3. On the first day of the hearing date on the 5th February 2007, Mr. Mohd Faizan Osman from M/S Sarbjit & Co. counsel for the receiver informed the Court that they had notified Mr. Tambulingam a/l Sethuraman of Rimbun Corporate Advisory Sdn. Bhd. the liquidator of the Company to appoint a solicitor and to file in their Statement in Reply, if any. The liquidator had not appointed any solicitor to represent them nor had they filed in their Statement in Reply. Neither was the liquidator Mr. Tambulingam present in Court for the hearing. Counsel for the Claimant Mr. Chandra Segaran Rajandran applied to this Court to proceed with the matter ex-parte pursuant to Section 29(d) of the Industrial Relations Act 1967 . After hearing Mr. Chandra, the Court allowed the hearing to proceed ex-parte .

4. It has been established that a Court of law or tribunal is empowered to hear a case ex-parte if no sufficient cause is shown for the defendant's absence. In the case of Leow Seok Lan v. John Loh; [1993] 3 CLJ 158; [1993] 4 AMR 568 the Court held that..."in considering the particular case in view of the absence of the defendant, I bear in mind the following principles of law namely that the plaintiff is required to prove her claim as far as the burden of proof lies on her...". Section 29(d) of the Industrial Relations Act 1967 provides that the Court may in any proceedings... "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. Raddi. J. in Dawood Khan vs. Labour Court [1960] 11 ILJ. 611 said "Ex-parte only means in the absence of the other party. It creates a fiction which enables a tribunal to presume that all parties are present before it "A fortiori" an adjudicator may imagine that the absentee is present and having done so it may give full effect to its imagination and carry it to its logical conclusion".

Learned author Maholtra in "Law of Industrial Disputes " has this to say on 'ex- parte' ..... "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 to either do away with the enquiry or straightaway pass an award without giving a finding on the merits of the dispute. In other words, the absence of a party does not entail the consequence that an award will straightaway be made against them".

Parties Contention

6. In the absence of the Company's representative, the Claimant adduced evidence in Court vide his witness statement and his presence in Court. The Court was told that the