AWARD

The dispute is over the dismissals of Kee Soo Tark (1st claimant), Lim Tack Kee (2nd claimant), Foo Weng Heng (3rd claimant) and Wong Tai Kum (4th claimant) on 28 February 2002 (collectively called the claimants) by Soon Lee office equipment (the company).

Facts of The Case

The claimants alleged that the company terminated their services without giving any reasons. The only reason apparent to the claimants is that the company is recruiting foreign workers with less pay.

Submission

The claimants representative from MTUC submitted that all the claimants were terminated without just cause and excuse, even if the company was in a financial problem they should maintain the claimants instead of engaging the foreign workers. The claimants should be paid some compensation because each of them had served the company for a long period of between six years to 14 years. The termination of the claimants were without valid reasons and was against the principles of natural justice.

The Law

In Goon Kwee Phoy v. J & P Coats (M) Sdn. Bhd , [1981] 2 MLJ 129 Raja Azlan Shah CJ (Malaya) (as he then was) at p. 136 stated as follows:

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 choose 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 bee proved then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the Court is the reason advance by it and that Court or the High Court cannot go into another reason not relied on by the employer or find one for it.

The burden of proof lies on the company, as employer, to prove on a balance of probabilities that it had just cause or excuse for dismissing the claimant cases of reference are Union Construction, Allied trades and Technician v. Brain [1981] IRLR 224, Smith v. City of Glasgow District Council [1985] IRLR 79, Court of Session, Ireka Constructions Berhad v. Chantiravathan Subramaniam James; [1995] 2 ILR 11 and Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor, [2002] 3 MLJ 129 ).

The Issues

The issues before the Court are:

1) Whether the claimants were dismissed.

2) If they were dismissed, whether the dismissal were with just cause or excuse.

Decision

This case was called for mention on 1 September 2004. On that occasion the company representative or its counsel was absent. On the next mention date of 1 November 2004, the claimant's representative from MTUC applied for the case to be heardex-parte if the next mention date the company still fails to be present. On 14 December 2004 the company still failed to be present and no statement in reply was filed. The claimant's representative applied for the case to be heard ex-parte and the Court granted the application.

The first issue here is not in dispute as all the claimants were orally informed by the company that their services were terminated on 28 February 2002.

The 1st claimant stated in his evidence that he joined the company on 1 March 1996 as a welder. On 28 February 2002 the company's manager Khor told him that he was terminated. The company did not give a termination letter to the claimant. The company employed a lot of foreign workers and pay them much less then the claimant. The claimant was not paid any compensation. The claimant was paid daily wages of RM37. After termination the claimant was unemployed for three months. Later he found employment with a company called Extra Idea Sdn Bhd. The claimant was paid RM40 per day until now.

The 2nd. claimant stated that he joined the company on 1 December 1988 as a supervisor. He was a daily paid worker and received RM102 per day. On 28 February 2002 at about 4pm the company's manager told the claimant that