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2025 MarsdenLR 2066
INDUSTRIAL COURT KUALA LUMPUR
SIM TEN YONG – Appellant
Versus
SAMA CONCRETE MOULD & ENGINEERING SDN BHD – Respondent
Award No: 401 Of 2025 [Case No: 21/4-1306/23]
The court upheld the dismissal as justified, finding the business closure genuine and supported by evidence of financial losses, with the claimant failing to prove otherwise.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - The court addressed the complaint of dismissal by the claimant, who alleged unfair termination due to business closure - The company failed to appear at the hearing, leading to an ex-parte decision - The court found that the dismissal was with just cause as the closure was genuine and supported by evidence of accumulated losses. (Paras 1, 8, 41, 42)
(B) Burden of Proof - The burden lies on the employer to prove just cause for dismissal - The claimant failed to establish that the closure was mala fide or incomplete, thus the dismissal was justified. (Paras 15, 38, 41)
Facts of the case:
The claimant was dismissed on 31 October 2022, claiming the closure of business was a pretext for retrenchment. He served the company for 29 years and sought reinstatement or compensation. (Paras 8, 10)
Findings of Court:
The court concluded that the claimant did not prove the closure was not genuine or complete, and the dismissal was justified based on the company's financial losses. (Paras 41, 42)
Issues: Whether the dismissal was without just cause or excuse and if the business closure was genuine. (Paras 32)
Ratio Decidendi: The court ruled that the employer must demonstrate the closure was bona fide and complete; the claimant failed to prove otherwise. (Paras 20, 41)
Result: The dismissal was upheld as with just cause.
AWARD
Reference
[1] This is a reference dated 25 July 2023 made under s 20(3) of the Industrial Relations Act 1967 ("the Act") arising out of the dismissal of Sim Ten Yong (hereinafter referred to as "the Claimant") by Sama Concrete Mould & Engineering Sdn Bhd (hereinafter referred to as "the Company") on 31 October 2022.
[2] The reference in this case required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 31 October 2022 in order for a final award be handed down. Hearing proceeded Ex-Parte and concluded on the day fixed for Hearing ie on 2 October 2024 in the absence of the company pursuant.
Pre-Trial Chronological Events
[3] Having received the reference by the Director General of Industrial Department dated 28 July 2023 pursuant to s 20(3) of the Industrial Relation Act 1967, this Court had proceeded to fix dates for e-mention for 29 August 2023. Further e-mention dates to monitor the filings of cause papers and case management were fixed for 17 October 2023, 16 November 2023, 5 December 2023, 19 December 2023, 15 January 2024, 7 February 2024, 17 October 2024 and 8 November 2024. The parties to the proceeding were duly informed of the first e-mention date on 29 August 2023 vide Form F dated 3 August 2023 sent by AR Registered.
[4] Before the Assistant Registrar ("AR") on 29 August 2023, this Court had fixed the dates for filings of the Statement of Case (19 September 2023), Statement in Reply (10 October 2023), Rejoinder (17 October 2023), Witness Statements as well as Bundles of Documents (18 September 2024), and dates for hearing (2 October 2024 and 3 October 2024). The company was absent and had only appeared online on 29 August 2023 and did not appoint any counsel to act on its behalf, failed to comply with the Court 's directive whatsoever despite the multiple time lines given.
[5] By way of Form G dated 5 September 2023 (Notis Perbicaraan) sent by AR Registered on both parties on 14 December 2023 and duly acknowledged receipt by the company director on 21 December 2023, the company and the claimant were informed that hearing date for the matter had been fixed for 2 October 2024 and 3 October 2024.
[6] Based on the above pre-trial case management, 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 on the dates fixed for hearing. Hence, the hearing was ordered to proceed Ex-Parte on 2 October 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.
[7] The company was unrepresented at any material time whilst the claimant was represented by a Representative of the Malaysian Trades Union Congress (MTUC).
Overview Facts
[8] The Claimant holds the position that without prior consultation and/or discussion and/or both, the Company had via letter dated 1 October 2022 terminated his employment under the guise of closure of business and stated that his last date of employment was on 31 October 2022. The Claimant contended that the termination of employment due to closure of business tantamounts to an act of retrenchment as the Company has not ceased the business operations in the factory.
[9] During the tenure of the claimant, there were apparently no issues of default in the payment of salaries and statutory payments/contributions. Having served the company for twenty nine complete years (1 July 1993 - 21 October 2022), the claimant's last position in the company was as a Supervisor, and his last drawn salary was RM5500 [CLWS-1, QA1]. The claimant pleads that aside from being an employee, he was also a shareholder of the company who was given 600 share units out of 60,000 total share units prior to the company redeemed the same for allocation to two new shareholders at 300 share units each.
[10] It is contended that the reason for dismissal as closure of business w
