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2025 MarsdenLR 4773
INDUSTRIAL COURT MALAYSIA
Sherin Errina Binti Abd Samad – Appellant
Versus
Jamumall Sdn. Bhd. – Respondent
4/4-776/24
The burden of proving a dismissal was with just cause or excuse rests entirely with the employer. In the absence of evidence from the employer, the employee's unchallenged testimony must be accepted, and the court may award backwages while considering post-dismissal earnings based on equity.
Headnote:(A) Industrial Relations Act 1967 - Sections 20(3), 30(5) and 30(6A) - Dismissal - Termination of employment - Burden of proof - In a claim for unfair dismissal, the employer bears the evidentiary burden to prove that the dismissal was based on just cause or excuse. The Industrial Court is duty-bound to determine whether the alleged misconduct was proven and if it justifies the dismissal; failure by the employer to provide evidence results in the court relying upon the unchallenged evidence of the employee. (Paras 10-13, 22)
(B) Industrial Court - Role and function - The court must act according to equity, good conscience, and substantial merits of the case. In assessing backwages, the court is required to consider evidence of post-dismissal earnings to ensure a fair adjustment of the quantum. Compensation in lieu of reinstatement is subject to statutory requirements regarding the minimum period of service. (Paras 24, 33-34)
Facts of the case:
The claimant was dismissed from employment following allegations of misconduct. The claimant denied these allegations and filed a claim for reinstatement and backwages. Throughout the legal proceedings, the employer failed to appear, submit documents, or present any witness to defend the dismissal, leaving the claimant’s evidence as the sole and unchallenged testimony before the court.
Findings of Court:
The court found that the employer failed to fulfill its burden of proof to justify the dismissal. Consequently, the evidence provided by the claimant was accepted as true. The court determined that the dismissal was without just cause or excuse, noting that the tribunal must act based on the available evidence and principles of equity, notwithstanding the absence of one party.
Issues: The primary issues were whether the dismissal was justified by the alleged misconduct and, if not, what constitutes an appropriate and equitable remedy given the employer's failure to participate and the duration of the claimant's service.
Ratio Decidendi: Where an employer fails to participate or provide evidence in a dismissal dispute, the employer fails to discharge the burden of proof required by law. The court must accept the employee's version if it remains unchallenged. Equity requires that backwages be adjusted for post-dismissal income while adhering to statutory limitations regarding compensation.
Result: Claim allowed; employer ordered to pay backwages.
| Table of Content |
|---|
| 1. employment background and procedural history of the dismissal. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. parties' contentions regarding misconduct charges and employment termination. (Para 8 , 9) |
| 3. court authority to hear cases despite respondent's absence. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 4. effect of unchallenged evidence on employer's burden of proof. (Para 19 , 20 , 21 , 22 , 23 , 24) |
| 5. determination of remedies and assessment of monetary backwages. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38) |
THE REFERENCE:
This is a reference dated 01.07.2024 by the Director General of the Department of Industrial Relations, Ministry of Human Resources pursuant to section 20(3) of the Industrial Relations Act 1967 (“The Act”) arising out of the dismissal of SHERIN ERRINA BINTI ABD SAMAD (Claimant) by JAMUMALL SDN. BHD (Company) on the 18.01.2024.
AWARD
[1] Pursuant to the directions of this Court, the Claimant in this matter filed her written submissions dated 28.04.2025 (Claimant’s written submissions). The Company failed attend the proceedings before this Court. There are no documents filed by the Company in this matter including any written submissions due to the Company’s failure to attend the proceedings before this Court.
[2] This Court considered all the notes of proceedings in this matter, documents and cause papers in handing down this Award namely:
(i) The Claimant’s Statement of Case dated 02.09.2024;
(ii) The Claimant’s Bundle of Documents – CLB;
(iii) The Claimant’s Witness Statement – CLW – WS (Puan Sherin Errina Binti Abd Samad);
INTRODUCTION
[3] The dispute before this Court relates to the claim by Sherin Errina Binti Abd Samad (“Claimant”) that she was dismissed from her employment without just cause or excuse by Jamumall Sdn. Bhd. (“the Company”) on the 18.01.2024.
[4] The Claimant commenced employment with the Company on the 15.02.2023 as a Human Resources Executive and was promoted to the position of Operations Manager by an email dated 14.07.2023. The Claimant was a confirmed employee of the Company. The Claimant’s last drawn salary was RM8,000.00 per month.
[5] On the 02.01.2024, the Claimant was issued a show cause letter with 14 charges of misconduct levelled against her. Immediately on the 05.01.2024, the Claimant responded to the show cause letter denying all the charges of misconduct levelled against her. Following a series of exchange of letters between the Claimant and the Company and a
discussion between the Claimant and the Company’s representatives on the 15.01.2024 on the alleged misconducts of the Claimant, the Company on the 17.01.2024 issued a letter terminating the Claimant from her employment with the Company effective 18.01.2024 as the Company was of the view that the Claimant had committed the alleged misconducts.
[6] The Claimant in this Court denied all the charges of misconduct levelled against her and maintained that she was dismissed from her employment without just cause or excuse and prays that she be reinstated to her former position in the Company without any loss of wages and other benefits. The Company did not file any documents as directed by this Court neither did the Company appear on the hearing date to state its case.
[7] The Claimant gave evidence under oath and remained the sole witness for her case. The Company’s representatives failed to attend this Court’s proceedings and no witnesses appeared in this Court on behalf of the Company.
THE COMPANY'S CASE
[8] The Company/Company’s Representative was absent on the hearing date thus there is nothing before this Court in support of the Company's case. The Company having dismissed the Claimant was not present in this Court and had not filed any documents to justify the dismissal of the Claimant from her employment.
THE CLAIMANT’S CASE
[9] The Claimant’s case can be summarised as follows:-
(i) The Claimant commenced employment with the C
