Background

This is a reference under s. 20(3) of the Industrial Relations Act, 1967 ('the Act') decided by the Minister of Human Resources on 23 October 2002 in connection with the termination of employment of Chan Chee Bin ('the claimant') by Ike Video Distributor Sdn Bhd ('the company') effected on 19 September 2000 and which reference found its way into Industrial Court 15 ('the Court') on 11 November 2002.

At the hearing of the reference on 23 April 2004, the Court proceeded ex parte in the absence of the company. The need therefore to elaborate on the events leading to that hearing is appropriate and now follows.

On record the company was represented by M/s Tan Kok Kwang & Co ('the company's counsel'). Of a total of six mentions, preceded by effectively served notices, the company's counsel only attended the first. In respect of all other mentions, company's counsel wrote to the Court seeking to be excused citing appearance in other civil and criminal courts as reason.

The assistant registrar's directions to file pleadings, exhibits and witness statements were complied with by the claimant through his counsel on record ('the claimant's counsel'). Not so the company's counsel, who in spite of having sought extension of one month to file the company's pleading, failed to do so forever.

After the 6th mention, company's counsel extinguished. The Court's correspondences were returned undelivered, telephonic contact failed and efforts to trace them through the Bar Council came to naught.

In the circumstances, hearing first fixed for 26 and 27 January 2004 and again fixed for 23 March 2004 had to be forcibly vacated.

On 23 March 2004, the claimant and his counsel being present, the company unrepresented, hearing was adjourned to 23 April 2004. The Court further directed a search with the Companies Commission of Malaysia and thereafter to serve individual notices of hearing on the company, its manager and director. The fruits of the search ended in notice of hearing being successfully served via AR Register upon the manager and two directors of the company.

On 23 April 2004, the date set down for hearing, claimant and his counsel were present. So too did one Lim Say Wee, an advocate and solicitor from M/s Lim Seng Wee & Kwan appear, and by permission addressed the Court. He intimated that though he was not on record representing the company, he had been requested by the company's directors " to find out the current position of the case " . He further informed the Court that the company had since ceased business and will not contest the action in the Court.

Ex-Parte Application

Whereupon claimant's counsel made an application to commence and proceed hearing ex-parte .

Section 29(d) of the Act enables the Court to hear and determine the matter before it notwithstanding the absence of any party to the proceeding who has been served with a notice or summons to appear.

After weighing the cumulative effect of the numerous notices served upon the company, the persistent refusal of the company and/or its counsel on record to respond to such notices and the final act of failing to attend hearing but instead to send an emissary, the Court formed the opinion that in accordance to equity, good conscience and the substantial merits of what had transpired thus far, it would be in the interest of justice that the application for an ex-parte hearing should be granted and so ordered accordingly.

Ex-parte Hearing

Having decided to proceed ex-parte I examine the role of the Court in an ex-parte hearing.

OP Malhotra in his text The Law of Industrial Disputes , Vol. 1, 3rd Edn. at p. 716 writes: