AWARD

The reference in this case involves the dismissal of Mohd. Norzaidi Abdul Razak ("the claimant") by Marudu Publisher ("the company").

Introduction

This case was originally heard by Tuan Augustine Liom (the former Learned Chairman of Mahkamah Perusahaan Malaysia Sarawak Branch) at Pejabat Buruh, Kota Kinabalu on 19 April 2001 but the award was not handed down.

Sometime, in or about middle of the year 2004, Tuan Augustine had left the service and I as the present Chairman took over this matter. In order to expedite this matter, the Industrial Court Sarawak Branch, sent a letter dated 22 July 2004 to both the company and the claimant seeking their choice as to whether the parties prefer mediation, have another Chairman to hand down the award or to have the matter heard de novo ("their preferred choice"). There was, however, no response from both parties.

Since the Industrial Court Sabah Branch had taken over the conduct of the matter, we fixed a mention date on 30 September 2004 for both parties to appear in Court at Kota Kinabalu vide Form F dated 24 August 2004 to ascertain their preferred choice. However, both letters were returned unclaimed. In the circumstances, this Court took the liberty to hand down this award.

Background Facts

The claimant had filed his statement of case ("SOC") dated 28 September 2000 in Court on 5 October 2000. The company was served with Form G (notice of hearing) but the A.R. Registered Card was not returned to the Court. The company did not file its statement in reply. Hence, on the hearing date of 19 April 2001 the Court proceeded with the case in the absence of the company.

Claimant's Case

The claimant commenced employment with the company as sub-editor on 19 August 1999. He was paid a basic salary of RM700 per month. On 15 September 1999, the claimant alleged that he was dismissed with ½ month pay amounting to RM350.

The claimant in his evidence had stated that on the day he was dismissed En. Shamsul Abdul Shukor, the manager of the company ("En. Shamsul") had verbally informed him that the company was going to stop publishing as they were facing financial difficulties. According to the claimant, En. Shamsul's explanation is incorrect. This is because a lady colleague of the claimant had informed the claimant that the reason why En. Shamsul wanted to dismiss him was because En. Shamsul did not like the claimant.

The claimant further stated in evidence that even though the company had said that it wanted to stop its operations, nevertheless, he knew that the company had carried on its business and in fact a new staff was hired and he too was cheated by En. Shamsul. In the circumstances, the claimant had pleaded that the dismissal is without just cause or excuse. At the trial the claimant admitted in evidence that the company had closed its operations.

Issue For Determination

The main issues in this case are:

(1) whether there was a dismissal of the claimant by the company; and

(2) if there was a dismissal, whether it was with just cause or excuse.

The Law

It is trite law that where the employer gives a reason for terminating the services of the employee it is incumbent upon the employer to justify the reason advanced.

Conclusion And Finding

On the facts of the instant case, the Court is of the view that company did in fact close its business operations due to financial problems. The company did in fact pay the claimant ½ month's pay before its closure.

The claimant's version of what his lady colleague had told him about the fact that the company had in fact hired a new staff is hearsay as she was not called to testify at the hearing. Therefore her evidence is without any merit.

For these reasons, the Court is of the view that the claimant's claim that his dismissal is without just cause or excuse is without any merit. Accordingly the claimant's claim is hereby dismissed.