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2025 MarsdenLR 1974
INDUSTRIAL COURT PENANG
MOHAMED FAUZI FAROUK KHAN – Appellant
Versus
JET CONSTRUCTION AND ENGINEERING SDN BHD & ANOR – Respondent
Award No: 157 Of 2025 [Case No: 18/4-492/21]
The absence of a party at an ex-parte hearing does not preclude the Court from assessing whether dismissal was with just cause or excuse, but voluntary resignation negates claims of unfair dismissal.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Reference by Minister regarding unfair dismissal. (Paras 1, 46)
(B) Burden of proof - Employer bears the burden to demonstrate dismissal was with just cause. (Paras 47, 59)
(C) Ex-parte hearings - Courts can proceed ex-parte when parties are absent. (Paras 26, 67)
(D) Employment law - Voluntary resignation vs dismissal considerations. (Paras 60, 68)
Facts of the case:
The Claimant was dismissed by the Company, leading to a complaint of unfair dismissal. The Claimant argued he was forced to resign due to unpaid salaries during the pandemic, while the Company asserted it was forced to cease operations and denied the claim of dismissal.
Findings of Court:
The Claimant's resignation was voluntary; thus, no dismissal occurred with just cause or excuse.
Issues: Was there a dismissal, and if so, was it with just cause?
Ratio Decidendi: The Claimant failed to prove dismissal, being absent at the hearing; thus, his claim was dismissed upon establishing voluntary resignation.
Result: Claim dismissed.
| Table of Content |
|---|
| 1. court proceedings timeline and conduct (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21) |
| 2. claimant's employment and resignation details (Para 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36) |
| 3. company's defense against claimant’s allegations (Para 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44) |
| 4. role and burden of proof in industrial court (Para 46 , 47 , 48) |
| 5. analysis of dismissal and resignation context (Para 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67) |
| 6. conclusion on the dismissal claim (Para 68) |
Reference
[1] This is a reference made on 7 January 2021 by the Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 ('the Act') arising out of the dismissal of Mohamed Fauzi Bin Faruok Khan (hereinafter referred to as 'the Claimant') by Jet Construction And Engineering Sdn Bhd (hereinafter referred to as 'the Company'). The Ministers reference in this case before the Court requires the Court to hear and determine the Claimant's complaint of dismissal by the Company on 25 July 2020.
Background
[2] Pursuant to the Ministers reference dated 7 January 2021, this matter was fixed for mention on 12 March 2021 where the Claimant and the representative of the Company were present when the matter was called up before the Assistant Registrar of this Court. Directions were given by the learned Assistant Registrar to the parties to file their respective cause-papers.
[3] The Court then fixed 8 June 2021 as the next mention date which was vacated due to Movement Control Order (MCO) imposed as result of the Covid-19 pandemic. The Court fixed 1 September 2021 as the next mention date.
[4] On 1 September 2021, the Claimant was present however the Company was not present and/or represented. Directions were given by the learned Assistant Registrar to the parties to file their respective cause-papers. The Court then fixed 20 October 2021 as the next mention date.
[5] On 20 October 2021, the Union representative appeared for the Claimant, together with a representative from the Company. Directions were again given by the learned Assistant Registrar to the parties to file their respective cause-papers. The Court then fixed 30 November 2021 as the next mention date.
[6] On 30 November 2021, the Union representative appeared for the Claimant together with the representative of the Company. The Court was informed that the Claimant had filed his Statement of Case and Bundle of Documents on 23 November 2021 and the Court then directed the Company to file their Reply by the 5 January 2022. The Court then fixed 5 January 2022 as the next mention date.
[7] On 5 January 2022, the matter was called up for mention before the Assistant Registrar of this Court with both parties appearing. At this time, the Company had not filed their Statement of Reply and Bundle of Documents, and they were directed to do so by 22 January 2022. The Court was also informed that the parties are in the midst of negotiating a settlement. The Court then decided to fix another mention date on 28 January 2022 at 10.00am.
[8] On 28 January 2022, the Union representative appeared for the Claimant and mentioned on behalf of the solicitors for the Company and informed the Court that a settlement of the matter is still being discussed. The Court then fixed 17 February 2022 as the next mention date.
[9] On 17 February 2022, the Court was informed by the parties that they need more time to discuss settlement. The Court then fixed 8 March 2022 as the next mention date.
[10] On 8 March 2022, the parties applied for mediation to be conducted physically by the learned Assistant Registrar of this Court.
[11] On 1 April 2022, the parties were informed that the mediation was unsuccessful, and the matter was fixed for case management on 20 April 2022.
[12] On 20 April 2022, counsel for the Company applied for an extension to file their amended Reply, the Court
