The court affirmed that dismissals due to genuine business closure amid financial hardship are justified, and reinstatement is impossible when the employer no longer exists.

AWARD

Ahmad Zakhi Mohd Daud:

Reference

[1] These are references made under subsection 20(3) of the Industrial Relations Act 1967 ("Act") arising out of the dismissal of Mohd Ismadi bin Mohd Isa & 69 others, Azrulazlan bin Abdul Hamid, Fiona Liu anak Japok and Zaheerah Norzaisha binti Ruslan ("Claimants") by Robinson & Co (Malaya) Sdn Bhd ("Company") on the 15 April 2021, 28 May 2021 and 21 June 2021 respectively.

[2] The references in these cases required the Court to hear and determine the Claimants' complaint of dismissal by the Company on 30 November 2020 and 31 December 2020 respectively.

[3] This Court considered the notes of proceedings, documents and cause papers in handing down this Award namely:

(a) Statements of Case dated 23 January 2023;

(b) Statements in Reply dated 21 March 2023;

(c) Claimants' Bundle of Documents - CLB-1, CLB-2, CLB-3, CLB-4;

(d) Company's Bundle of Documents - COB-1, COB-2;

(e) Claimants' Witness Statement - CLWS-A & CLWS-B (Mohd Azri bin Amran)

(f) Company's Witness Statement - COWS-1 (Ting Ying Yi)

(g) Claimants' Written Submission and Reply

(h) Company's Written Submission and Reply

Background

[4] The disputes before this Court are the claims by the Claimants that they had been dismissed from their employment without just cause or excuse by the Company on the said respective dates.

[5] On the said respective dates, the Company's Interim liquidator issued termination letters to the Claimants informing them that they are being terminated from their employment with immediate effect before or upon the voluntary winding up of the Company, which had gone out of business and closed its business operations during the Covid-19 pandemic period and its lockdowns.

[6] The Company was wound up on 24 November 2020 and a liquidator was appointed for the Company.

[7] The Claimants contended that the Company's termination exercise was done in bad faith and without just cause or excuse.

The Duty Of The Industrial Court

[8] The Supreme Court in the case of Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd, [1988] 1 MLJ 92 held that:

"When the Industrial Court is dealing with a reference under s 20, the first thing that the Court will have to do is to ask itself a question whether there was a dismissal, and if so, whether it was with or without just cause or excuse.".

[9] The Federal Court in the case of Goon Kwee Phoy v. J & P Coats (M) Bhd, [1981] 2 MLJ 129 held that:

"Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of that Court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse"

The Burden Of Proof

[10] The High Court in the case of Weltex Knitwear Industries Sdn Bhd v. Law Kar Toy & Anor, [1998] 7 MLJ 359 held that:

"The law is clear that if the fact of dismissal is not in dispute, the burden is on the company to satisfy the Court that such dismissal was done with just cause or excuse. This is because, by the 1967 Act, all dismissal is prima facie done without just cause or excuse. Therefore, if an employer asserts otherwise the burden is on him to discharge"

The Standard Of Proof

[11] In the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor, [2002] 3 MLJ 129, the Court laid down the principle that the standard of proof that is required is one that is on the balance of probabilities.

"Thus in hearing a claim of unjust dismissal, where the employee was dismissed on the basis of an alleged criminal offence such as theft of company property, the Industrial Court is not required to be satisfied beyond a reasonable doubt that such an offence was committed. The standard of proof applic