AWARD

The dispute is over the dismissal of the claimant by the company.

The claimant contends he had been dismissed without just cause and excuse.

At the outset of the hearing on 28 September 2001 the claimant and his counsel were presented. However the company was not represented by counsel. The company's marketing executive who was present asked the court to postpone the hearing but this was disallowed. The claimant's counsel then applied to proceed ex parte under s. 29(d) of the Industrial Relations Act 1967 (hereinafter referred to as "the Act") which application was allowed by the court.

The claimant gave evidence that he commenced employment with the company on 15 May 1996 as the marketing and sales manager. His basic salary was RM5,000 per month and he was also paid RM400 and RM300 monthly for transport and handphone allowances respectively. Subsequently in September 1996 he was confirmed. The claimant travelled locally and internationally to promote the company's products. In July 1997, the claimant submitted his claims for all the expenses incurred on the various business trips done for the company to Solomon Jacobson, the director of sales and marketing. The claim amounted to RM30,000. Vide memo dated 28 August 1997, the company through the said Solomon Jacobson requested the claimant and his sales and marketing executive, one Menon, to submit a sales achievement report from the date of employment until August 1997, by 10am on the following day. The memo also contained various allegations against the claimant. Although the said memo stated that he had been given a monthly quota of RM1 million this was not true. This was not an achievable quota. It was also not true that he was given a quota of RM100,000 per month for the three months preceding the memo. The claimant did not submit the sales achievement reports as requested because the company already had records of monthly sales. Vide letter of 9 September 1997 the claimant was handed a dismissal letter which was effective immediately. The reason advanced was that since he had not met with its sale quotas, the company was terminating the services of all the marketing staff. Before this the claimant had never received a warning or a show cause letter. Subsequent to his dismissal the claimant received by post a letter dated 9 September 1997 from the company containing unfounded allegations of insubordination. Prior to this letter the claimant had never received a written warning pertaining to these allegations.

The evidence of Menon (CLW2) is that the reason given by the company in the claimant's letter of dismissal was not true. CLW2 said that Solomon Jacobson informed him that he wanted to dismiss the claimant and therefore gave the claimant the impression that he was closing down the marketing department and dismissing all the marketing staff. CLW2 also confirmed that the company never gave them a monthly sales quota of RM100,000 or RM1 million as stated in the memo of 28 August 1998.

It is the claimant's submission that since the company has failed to appear and adduce evidence, the only evidence is that of the claimant's which is corroborated by CLW2. The claimant contends that since the evidence is not rebutted by the company the court should make a finding in his favour.

It is the duty of the Industrial court in dealing with a reference under s. 20 of the Act to ascertain firstly whether there was a dismissal, and if so, whether it was with or without just cause or excuse. See Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd[1987] 1 MELR 32, [1988] 1 MLJ 92, Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal[1995] 1 MLRA 412; [1995] 2 MLJ 753; [1995] 3 CLJ 344; [1995] 2 AMR 2145 and Milan Auto Sdn Bhd v. Wong Seh Yen[1995] 2 MLRA 23; [1995] 3 MLJ 537; [1995] 4 CLJ 449; [1996] 1 AMR 049. It is a principle of industrial jurisprudence that in a dismissal case the employer must produce convincing and cogent evidence that the employee committed the o