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2024 MarsdenLR 2821
INDUSTRIAL COURT KUALA LUMPUR
ANG TEE CHIAN – Appellant
Versus
VETTONS SDN BHD – Respondent
Award No: 1761 Of 2024 [Case No: 21/4-774/23]
The court established that constructive dismissal occurs when an employer fundamentally breaches the employment contract, leading to an unjustified dismissal.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal - Claimant alleged constructive dismissal due to withholding of salaries - Court found dismissal without just cause or excuse - Compensation awarded in lieu of reinstatement. (Paras 24, 25, 31, 32)
(B) Burden of Proof - Employer must prove just cause for dismissal - Failure to attend hearing deemed acceptance of Claimant's evidence. (Paras 26, 27)
(C) Standard of Proof - Civil standard of proof on balance of probabilities applies in dismissal cases. (Paras 12, 14)
Facts of the case:
The Claimant was dismissed by the Company after eight months of unpaid salaries, leading to claims of constructive dismissal. The Company failed to attend the hearing, resulting in an ex-parte decision.
Findings of Court:
The Court found that the Claimant's dismissal was without just cause or excuse, and the Company failed to provide evidence to the contrary.
Issues: Whether the Claimant proved constructive dismissal and if the dismissal was with just cause.
Ratio Decidendi: The Court ruled that the Claimant's evidence was undisputed due to the Company's absence, establishing that the dismissal was unjustified.
Result: Compensation awarded in lieu of reinstatement.
| Table of Content |
|---|
| 1. claimant's dismissal and complaint (Para 1 , 2 , 3 , 4 , 5 , 6 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17) |
| 2. claimant's claim of constructive dismissal (Para 7) |
| 3. court's evaluation of evidence (Para 18 , 19 , 20 , 21 , 22 , 23) |
| 4. court's findings on dismissal (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37) |
| 5. court's award and decision (Para 38 , 39 , 40) |
AWARD
Reference
[1] This is a reference dated 4 April 2023 made under s 20(3) of the Industrial Relations Act 1967 ("the Act") arising out of the dismissal of Ang Tee Chian (hereinafter referred to as "the Claimant") by Vettons Sdn Bhd (hereinafter referred to as "the Company") on 14 September 2022.
[2] The reference in this case required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 17 June 2021. Hearing proceeded and concluded before Chairman of this division of Court 21 on 23 September 2022 pursuant to the instructions from the learned President of the Industrial Court of Malaysia in order for a final award be handed down.
Procedural History
[3] Having received the reference by the Director General of Industrial Department dated 4 April 2023 pursuant to s 20(3) of the Industrial Relation Act 1967, this Court had proceeded to fix a date for mention for 12 May 2023 in which the parties to the proceeding were duly informed of the mention date vide Form F dated 14 April 2023 was sent by hand.
[4] Before the Assistant Registrar ("AR") on 14 April 2023 which was fixed by way of e-mention, the AR proceeded to fix the dates for filings of the Statement of Case (2 June 2023), Statement in Reply (23 June 2023), Rejoinder (3 July 2023) Witness Statements as well as Bundles of Documents (10 July 2024), and dates for hearing (24 July 2024 and 25 July 2024). The company was absent.
[5] The claimant had dutifully extracted and provided to this Court a SSM search report dated 15 May 2023 which shows that the status of the company is existing. By way of Form G dated 18 May 2023 (Notis Perbicaraan) sent by personal service on both parties, the company and the claimant were informed that hearing date for the matter had been rescheduled to 25 July 2024.
[6] Based on the above timeline, the company had been sufficiently informed of the hearing dates fixed for this case. There is no excuse for the Company for failing to turn up in Court for hearing on 25 July 2024. Hence, the hearing was ordered to proceed Ex-Parte on 25 July 2024 pursuant to s 29(d) of the IRA 1967. In relation to this, the Court is guided by the case of Lee Mei Wan v. Ultimate Media Group Pty Ltd .
Overview & Factual Matrix
[7] The Claimant holds the position that constructive dismissal applies in this case notwithstanding a Notice of Resignation was tendered dated 14 September 2022. The claimant submits that he was constructively dismissed due to the withholding of eight months' salaries that constitutes fundamental breach to the terms of the contract of employment by the company; such dismissal without just cause or excuse and therefore seeks for an order that he be reinstated to the former position without any loss of wages, allowance, service, seniority, privileges or benefits of any kind and/or any other alternate relief as this Court deems fit and proper.
Cause Papers, Witness Statements, Bundles Of Documents And Written Submissions
[8] The following documents had been filed by the Claimant for the purpose of trial:
Cause Papers
(i) Statement of Case dated 21 July 2023 incorporating therein the following exhibits:
CL1 - Notice of Resignation dated 14 September 2022.
CL2 - Letter of Employment dated 24 July 2020.
CL3 - Telegram and whatsApp group messages.
CL4 - Letter by KWSP to the company dated 21 February 2022 [Kelulusan Bayaran Ansuran Caruman Tertunggak Tempoh 04/2020-01/2022].
Witness Statements
(ii) Claimant's Witness Statement marked as CLWS1.
Bundles of Documents
(iii) Claimant's Bundle of Do
