2026 MarsdenLR 366

INDUSTRIAL COURT MALAYSIA
SUNITA KAUR JESSY, CHAIRMAN
Charanjit Singh a/l Mahinder Singh – Appellant
Versus
Straqta Property Management Sdn Bhd – Respondent
10/4-503/25

In an ex parte dismissal hearing, the employer bears the burden to prove misconduct. Where the employer fails to appear and adduce evidence, the claimant's unchallenged testimony may suffice to show dismissal without just cause or excuse.

Headnote:(A) Industrial Relations Act 1967 [Act 177] - Sections 20(3), 29(d), 30(5) - Industrial Court Rules 1967 - Rules 8(3), 19(c) - Dismissal without just cause or excuse - Ex parte hearing - Burden of proof - Misconduct - Tampering with attendance records - Reinstatement - Compensation in lieu - Backwages - Post-dismissal earnings - Contributory misconduct.

(B) Ex parte hearing - Court empowered under section 29(d) of Act 177 to hear and determine matter notwithstanding absence of a party served with notice - Role of court is not to straightaway pass award against absent party but to hear merits and require evidence from attending party - Claimant must prove case on balance of probabilities - Absence of employer does not relieve court from examining merits - Case law: Lee Mei Wan v. Ultimate Media Group Pte Ltd [2017] ILRU 1668; Wong Brothers Construction v. Choo Chee Siam [2005] 2 ILR 356; Kuldipjeet Singh A/L Tharam Singh v. Tesco Stores (Malaysia) Sdn. Bhd. & Mahkamah Perusahaan Malaysia [2022] CLJU 1166. (paras 3-5, 8-10)

(C) Misconduct - Definition per Holiday Inn Kuching Sarawak v. Elizabeth Lee Chai Siok [1990] 2 ILR 262: improper behavior, intentional wrongdoing, deliberate violation of rule - Employer must prove misconduct - Failure to hold domestic inquiry not fatal but irregularity curable by de novo proceedings before Industrial Court - Case law: Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. [1995] 3 CLJ 344; Dreamland Corporation (M) Sdn. Bhd. v. Choong Chin Sooi [1988] 1 CLJ 1; Ang Bee Hoon v. Be-P Pharmacy Sdn. Bhd. [2023] 4 ILR 204. (paras 18-22)

(D) Reinstatement - Not appropriate where employee had short service (10 months) and lapse of 2 years - Industrial harmony considered per Hong Leong Bank Bhd. v. Phung Tze Thiam John Phung [2008] CLJU 921 - Factors: past record, nature of lapse, conduct, relations, duties, nature of establishment - Compensation in lieu not suitable per Practice Note 3 of 2019 - Backwages awarded for period of unemployment. (paras 29-31) (E) Assessment of backwages - Post-dismissal earnings to be deducted per Dr. James Alfred (Sabah) v. Koperasi Serbaguna Sanya Bhd. (Sabah) & Anor [2001] 3 CLJ 541 - No deduction for contributory misconduct where allegation not proven - Backwages for 4 months at RM5,200 per month = RM20,800. (paras 32-33)

Facts of the case:
The claimant commenced employment on 20.08.2023 as a Building Manager with a salary of RM5,200 and was confirmed on 22.11.2023. On 17.05.2024, the company dismissed the claimant by letter alleging that he had tampered with attendance records between September 2023 and March 2024 by altering or falsifying attendance data to misrepresent actual working hours. The claimant denied the allegation and claimed he was not given any show cause or domestic inquiry. The company failed to appear at the hearing despite service, and the Industrial Court proceeded ex parte. The claimant testified that attendance was recorded via a thumbprint device which could not be altered. No evidence was adduced by the company.

Findings of Court:
The court held that the allegation of misconduct was not proven on a balance of probabilities. The company failed to discharge its burden of proof. The claimant's unchallenged evidence that the attendance system was by thumbprint, which could not be tampered with, was accepted. The dismissal was therefore without just cause or excuse. The court declined to order reinstatement due to the short duration of employment (10 months) and the lapse of 2 years, as it would not be conducive to industrial harmony. Compensation in lieu of reinstatement was also not suitable. Instead, the court awarded backwages for the period the claimant was unemployed.

Issues: (1) Whether the claimant's dismissal due to alleged misconduct of tampering or falsifying attendance records has been proven on a balance of probabilities. (2) Whether the claimant's dismissal was without just cause or excuse.

Ratio Decidendi: The employer bears the legal burden to prove that it had just cause or excuse to dismiss the employee. In an ex parte hearing, the claimant must still prove his case. The absence of a domestic inquiry is not fatal to the employer's case but the Industrial Court may cure the irregularity by conducting a de novo hearing. However, the employer must adduce evidence to support the allegation of misconduct. Where the employer fails to appear and provide evidence, the court may rely on the claimant's unchallenged testimony. On the facts, the claimant's evidence that attendance was via a thumbprint device, which could not be altered, was unrebutted, leading to a finding that the misconduct was not proven. Reinstatement is not appropriate where the employee had a short tenure and significant time has elapsed, as industrial harmony would be affected.

Result: Claimant's claim allowed. Award of backwages of RM20,800 (Ringgit Malaysia: Twenty Thousand Eight Hundred Only) to be paid within 30 days from the date of award, subject to statutory deductions.