The dismissal of a probationary employee must be justified with evidence of just cause; otherwise, it is deemed unlawful.

AWARD

Rusita Md Lazim:

[1] This is a reference dated 4 April 2023 by the Director General of Industrial Relations under s 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as "the IRA ") in respect of the dismissal of Lim Chun Wei (hereinafter referred to as "the Claimant") by his employer, IT Comp Sales & Services Sdn Bhd (hereinafter referred to as "the Company") effective 5 August 2022.

A. Procedural History

[2] The matter was fixed for mention on 12 May 2023, 12 July 2023, 2 August 2023, 22 July 2023, 26 September 2023 and 24 October 2023.

[3] On the first date of mention ie 12 May 2023, the Claimant failed to attend the e-Mention on the date despite of the Respondent's presence. After an hour waiting online, the Court had struck off the case.

[4] The Claimant had filed Notice of Application dated 6 July 2023 to reinstate this case. The Application was supported by Affidavit of Support (encl 9) affirmed on 6 July 2023.

[5] The case was fixed for hearing of application on 13 July 2023. On 13 July 2023, both the Claimant and the Company's Representatives were present. The Claimant prayed for Order in Term to the encl 8 and the Respondent and its's representative had no objection to the application.

[6] The Court granted Order in Term to the application (Enclosure 8). Then the Court had fixed 2 August 2023 for Statement of Case and Bundle of Document to be filed (The Claimant).

[7] Directions for the filing of pleadings and bundle of document had already been given by the Court to both parties as early as 2 August 2023. Despite a few extension dates given (with or without the Company's Representative appearance), the Company failed to file their Statement in Reply and Bundle of Documents right up to the date of hearing on 26 November 2023.

[8] On the day of the hearing, 27 November 2023, the Company was absent and no Statement in Reply had been filed by them into Court. The Court was satisfied that all the relevant notices had been served on the Company via AR Registered. The Court accordingly exercised its powers under s 29(d) of the Industrial Relations Act 1967 and declared this proceeding to be heard ex parte. Section 29(d) of the provides the Court may, in any proceedings before it, "hear and determine the matter before it notwithstanding the failure of any party to submit any written statement whether of case or reply to the Court within such time as may be prescribed by the President or in the absence of any party to the proceedings who has been served with a notice or summons to appear".

[9] The trial proceeded by way of an Ex Parte Hearing on 27 November 2023 with only the Claimant ("CLW-1") being the sole witness.

[10] This Court had also considered the following cause papers and documents in handing down this Award, namely:

(a) the Claimant's Statement of Case dated 2 August 2022;

(b) the Claimant's witness statement (Lim Chun Wei) is marked as "CLWS-1";

(c) the Claimant's Bundle of Documents marked as "CLB-1";

B. Factual Matrix

[11] The Claimant commenced his employment as a Business Development Executive with IT Comp Sales & Services Sdn Bhd vide a Letter of Offer dated 30 May 2022 and with a starting salary of RM4,000.00, petrol, parking and Touch & Go of RM500 and rental allowance of RM400 (CLB-1 pp 3-8).

[12] The Claimant was on probation for 3 - 6 months based on review from team lead/management.

[13] The Claimant was dismissed vide a Letter of Termination dated 28 July 2022 and took effect on 5 August 2022.

C. Role And Function Of The Industrial Court

Standard Of Proof

[14] The Court of Appeal, in the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor, 2002 MarsdenLR 1640 , laid down the principles that the standard of proof in the Industrial Court is on a balance of probabilities. His Lordship Abdul Hamid Mohamad, JCA opined:

"Thus, we can see that the preponderant view is that the Industrial Court, when hearing a claim of unjust dismissal, even where the ground is one of a dis