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2024 MarsdenLR 1409
INDUSTRIAL COURT KUALA LUMPUR
MOHD AB HAMID MD DOM – Appellant
Versus
MY JET XPRESS AIRLINES SDN BHD – Respondent
Award No: 1441 Of 2024 [Case No: 20/4-1112/23]
The court found that the Claimant voluntarily resigned and was not constructively dismissed, as the evidence did not support claims of dismissal.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Reference arising from dismissal of employee - Claimant contended constructive dismissal due to unilateral reduction of salary and allowances - Company failed to appear in proceedings - Court held that absence does not preclude examination of evidence - Constructive dismissal not established as Claimant resigned voluntarily. (Paras 27, 47)
(B) Ex Parte Hearing - Court's authority to proceed in absence of one party - Sufficient opportunity must be afforded to all parties - Court found sufficient notice given to Company. (Paras 8, 12)
Facts of the case:
The Claimant was dismissed by the Company on 17 November 2022, alleging constructive dismissal due to salary reduction. The Company failed to appear in hearings despite notifications. (Paras 1, 4, 47)
Findings of Court:
Claimant was not dismissed, but resigned voluntarily; therefore, the claim was dismissed. (Paras 47, 49)
Issues: Whether the Claimant was constructively dismissed and whether the dismissal was with just cause. (Paras 27)
Ratio Decidendi: The court held that the Claimant's resignation was voluntary, influenced by a new job opportunity, negating claims of constructive dismissal. (Paras 47)
Result: Claimant's claim dismissed.
AWARD
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Mohd Ab Hamid Bin Md Dom (hereinafter referred to as "the Claimant") by My Jet Xpress Airlines Sdn Bhd (hereinafter referred to as "the Company") on 17 November 2022.
[2] Based on the Court 's records, during the first mention on 26 July 2023, the Company was represented by its Secretary/Human Resources Executive, Ms Premala Vesadeason, while the Claimant appeared in person. The Court issued directions for the filing of pleadings, instructing the Claimant to file his Statement of Case (SOC) on or before 25 August 2023, the Company to file its Statement in Reply (SIR) by 25 September 2023, and the Claimant to file his Rejoinder by 16 October 2023. The matter was also set for e-mention on 19 October 2023.
[3] On the date of the second e-mention, both the Claimant and the Company failed to attend, despite being duly notified. A new e-mention date was fixed.
[4] On 6 December 2023, both the Claimant and the Company's representative, Ms Premala Vesadeason, were present. The Claimant had filed his SOC, dated 7 July 2023, but the Company had failed to submit its SIR. The Court issued further directions for the Company to file its SIR by 12 January 2024, the Claimant to file his Rejoinder by 2 February 2024, and both parties to file their witness statements and bundle of documents by 7 June 2024, The hearing was fixed for 12 and 13 August 2024, and a further e-mention was set to ensure compliance with these directions.
[5] On 28 June 2024, the Claimant was represented by En Mohamad Kamaluddin Zainoorin Bin Madros, while the Company was absent. The Claimant had complied with all the Court 's directions; however, the Company had neither filed any documents nor appeared for the e-mention.
[6] On 18 July 2024, the matter was called up, and once again, the Company was absent. The Court notified the Claimant's counsel that the hearing scheduled for 13 and 14 August 2024 would proceed as scheduled.
[7] The Claimant subsequently filed an Amended SOC dated 31 July 2024.
[8] On 13 August 2024, the Claimant and his counsel were present in Court . Despite having been duly notified of the hearing date, the Company failed to appear. As a result, this Court proceeded to hear the matter ex parte, pursuant to s 29(d) of the Industrial Relations Act 1967, as the hearing had been properly scheduled by the Court .
The Law On Ex Parte Hearing
[9] The law governing ex-parte hearings is set out in the case of Wong Brothers' Building Construction v. Choo Chee Siam ; [2005] 2 ILR 356, wherein the Court held inter alia, as follows:
"The Court is mindful of the role in ex parte hearing by referring to the case of Ike Video Distributor Sdn Bhd v. Chan Chee Bin ; [2004] 2 ILR 687 where the Learned Chairman quoted from the book "The Law of Industrial Disputes" by OP Malhotra Vo 3rd Edn At p 716:
"A rule empowering the tribunal to proceed ex-parte if a party is absent and sufficient cause is not shown for his absence, would not enable it either to do away with the inquiry or straight away pass on an Award without giving finding on the merits of the disputes. In other words, the absence of a party does not entail the consequence that an Award will straightaway be made against him."
[Emphasis Added]
Dawood Khan v. Labour Court [1969] 11 ILJ 611 (AP) per Chinnappa Reddi J:
"Ex parte" only means in the absence of the other party. It creates a fiction which enables a tribunal to presume that all parties are present before it. A fortiori; an adjudicator may imagine that the absentee is present and having done so, it may give full effect to its imagination and carry it to its logical conclusions."
[10] In Manimaran Karuvanan v. TAV Facility Solution (M) Sdn Bhd, the Industrial Court proceeded with an ex-parte hearing pursuant to s 29(d) of the Industrial Relations Act 1967. It was held, inter alia, as follows:
