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2025 MarsdenLR 3171
INDUSTRIAL COURT MALAYSIA
Sugumar a/l Muniandy – Appellant
Versus
HS Brother Frozen Sdn. Bhd. – Respondent
9/4-463/24
An employer bears the burden of proving that a dismissal was for just cause through cogent evidence, even concerning probationary employees. Failure to substantiate performance claims or participate in proceedings leads to a finding of unfair dismissal and an award of monetary compensation in lieu of reinstatement.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal - Ex-parte proceeding - Section 29(d) of the Act permits the Court to hear and determine a matter despite the absence of a party, provided the merit of the case is established based on the evidence presented. (Paras 8, 17, 20)
(B) Labour Law - Probationer - A probationer holds rights equivalent to a permanent employee regarding protection from dismissal without just cause or excuse; the employer carries the burden of proving that the dismissal was supported by cogent evidence and bona fide assessment. (Paras 25, 27, 33)
(C) Remedies - Reinstatement - Where reinstatement is deemed unsuitable, monetary compensation is the appropriate remedy; such compensation is computed based on factors including prior earnings and duration of service. (Paras 34, 35, 37)
Facts of the case:
A claimant filed a dispute following their dismissal during a probationary period on the grounds of performance deficiency. The employer failed to attend hearings, submit witness statements, or produce documentation despite multiple court-mandated opportunities. Consequently, the proceedings were conducted ex parte based solely on the evidence provided by the claimant.
Findings of Court:
The court concluded that the dismissal lacked bona fide intent as no evidence was adduced to support the company's claims of unsatisfactory performance. The lack of prior performance evaluations or warnings rendered the dismissal unfair, as the employer failed to fulfill its burden of proof.
Issues: The main issues were whether the termination of a probationer during the probationary period was supported by just cause, and the appropriate calculation of compensation for an unfair dismissal.
Ratio Decidendi: The court maintained that an employer must objectively demonstrate just cause for a dismissal through cogent evidence, even for probationers. In the absence of evidence and genuine performance assessment, the dismissal is held to be unfair. Monetary compensation in lieu of reinstatement is the just result when the employment relationship is untenable.
Result: Claim allowed; the employer is ordered to pay compensation to the claimant.
| Table of Content |
|---|
| 1. industrial court's authority to proceed ex-parte upon non-compliance. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 2. definition of the dispute and the claimant's employment status. (Para 11 , 12 , 13) |
| 3. employer's burden to prove just cause on a balance of probabilities. (Para 14 , 15 , 16 , 17 , 18 , 19) |
| 4. requirement for bona fide performance assessment of a probationer. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 5. calculation of back wages as equitable remedy for unjust dismissal. (Para 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42) |
AWARD
[1] This is a reference dated 01 April 2024 from the Director General, Department of Industrial Relations Malaysia to the Industrial Court of Malaysia pursuant to section 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as “the IRA”) in respect of the dismissal of Sugumar A/L Muniandy (hereinafter referred to as “the Claimant”) by his employer, HR Brother Frozen Sdn Bhd. (hereinafter referred to as “the Company”) with effect from 29 July 2023.
A. Procedural History
[2] The Claimant represented by MTUC had first attended the e-mention on 08.05.2024 and 06.06. 2024.
[3] The Respondent was absent on the first two dates. The Court fixed 27.06.2024 for Statement in Reply and Bundle of Documents (BOD).
[4] The Respondent’s counsel attended Court on 27.06.2024, 15.08.2024 and 13.09.2024.
[5] The Court had already given directions for filing pleadings to both parties as early as 27.06.2024. The Respondent filed their Statement in Reply on 29.08.2024.
[6] Despite a few extension dates given (with or without the Company’s Representative appearance), the Company failed to file its Bundle of Documents s right up to the hearing date on 16.01.2025.
[7] On the day of the hearing, 16.01.2025, the Company was absent and no Bundle of Documents and Witness Statements have been filed by them in Court. The Court was satisfied that all the relevant notices had been served on the Company via AR Registered.
[8] 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 Industrial Relations Act 1967 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 16.01.2025 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 12 June 2024;
(b) the Company’s Statement in Reply dated 28 August 2024;
(c) the Rejoinder dated 15 January 2025;
(d) the Claimant’s witness statement (Sugumar A/L Muniandy) is marked as “CLWS-1”;
(e) the Claimant’s Bundle of Documents marked as “CLB-1”;
B. Factual Matrix
[11] The Claimant commenced his employment as a Warehouse Supervisor effective 3.06.2023 and with a basic salary of RM3,200.00.
[12] The Claimant was on probation for 3 months commencing 3.06.2023 which the period would have ended on 2.09.2023.
C. The Claimant’s Case
[13] The Claimant’s averments are as follows:
(a) The Claimant was required to serve a probationary period of 3 months which the period would have ended on 2 September 2023;
(b) By way of a letter dated 29 July 2023, the Claimant was dismissed from his employment on the grounds of poor performance (which the Claimant denies);
(c) The Company at no time conduct any evaluation and/or assessment of the Claimant’s performance;
(d) During the probationary period, the Company never discussed or notified him of its dissatisfaction with his performance;
(e) During his employment with the Company the issue
