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2024 MarsdenLR 2992
INDUSTRIAL COURT KUALA LUMPUR
TAN BENG KIAN – Appellant
Versus
KURSITA PLANTATION SDN BHD – Respondent
Award No: 1353 Of 2024 [Case No: 13/4-2002/21]
The Court ruled that a forced resignation constitutes a dismissal without just cause, placing the burden on the employer to prove otherwise, and awarded back wages to the Claimant.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - The Court determined the Claimant's complaint regarding forced resignation by the Company, which did not appear or file a defense - The Claimant provided evidence of being coerced into signing a resignation letter, which the Court deemed a dismissal without just cause. (Paras 1, 36, 41)
(B) Burden of proof - The burden lies on the employer to justify dismissal when the fact of dismissal is not disputed, shifting to the employee only when the dismissal is contested. (Paras 23, 24)
(C) Standard of proof - The Industrial Court operates on the balance of probabilities, not beyond reasonable doubt, for claims of unjust dismissal. (Paras 27)
(D) Remedy - The Claimant, as a probationer, is entitled to back wages but not reinstatement, with limits on the amount awarded. (Paras 41, 45)
Facts of the case:
The Claimant alleged he was forced to resign by the Company’s manager, leading to a police report. The Company failed to defend its actions in Court. (Paras 16-20)
Findings of Court:
The Claimant's forced resignation was treated as a dismissal without just cause, leading to an award for back wages. (Paras 36, 41)
Issues: Whether the resignation was forced or voluntary, and if forced, whether it constituted a dismissal with just cause. (Paras 30)
Ratio Decidendi: The absence of the Company’s defense led the Court to conclude that the Claimant’s resignation was coerced, establishing a dismissal without just cause. (Paras 36)
Result: The Company is ordered to pay RM48,600.00 to the Claimant. (Paras 48)
AWARD
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (Act 177), arising out of the alleged dismissal of TAN BENG KIAN (hereinafter referred to as "the Claimant") by KURSITA PLANTATION SDN BHD (hereinafter referred to as the Company") on 20 May 2021.
[2] The Reference, in this case, required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 1 August 2020.
I. Procedural Chronology
[3] The Court received the letter pertaining to the reference under s 20(3) of the Industrial Relation Act 1967 on 20 May 2021.
[4] The matter was fixed for mention on 13 September 2021 and 11 November 2021. The Company had failed to attend any single of those mentions.
[5] Due to the retirement of the learned Chairman Dato Muhammad Buhkari Bin Abd Hamid, effective from 25 November 2022, the previous Learned President of the Industrial Court instructed me (ie, the current Chairman of Court 13, Kuala Lumpur) to hand down an award for this case.
[6] The Company has failed to enter an appearance in this case. It has also failed to file its Statement of Reply to justify the termination of the Claimant's employment. Once this Court receives a reference, it has a duty to determine the matter before it.
[7] Mr John Doraisamy (MTUC), represented the Claimant here. The Claimant's representative had filed the Statement of Case, Bundle of Documents, and Witness statement awaiting trial.
[8] The Claimant had filed his Written Submission on this Court on 2 May 2024.
II. Ex-Parte Hearing
[9] Under s 29(d) of the Industrial Relations Act 1967, the Industrial Court has the faculty to hear and determine a matter notwithstanding the failure of any party to file in their Statement of Case or Statement in Reply (as the case may be). Section 29(d) provides as follows:
"(d) 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 of summons to appear."
[10] On the morning of the hearing on 3 October 2022, the Company was still absent until 10.10 am. The Claimant informed the Court that he would like to proceed with the hearing and that he was the only witness for his case.
[11] The Claimant's witness statement was marked as "CLWS-1" and the Claimant had also filed a bundle of documents (marked as "CLB-1").
[12] This Court 's record shows that the Company failed to file any pleadings for this case despite being instructed. The Notice of Hearing (Form G) of the Industrial Rules 1967 for the hearing was served on the Company on the date of 15 November 2021.
[13] This Court then decided to proceed to hear the matter in the absence of the Company. The law on Ex-Parte hearing was explained by the learned Chairman Franklin Goonting in the case of Wong Brothers' Building Construction v. Choo Chee Siam ; [2005] 2 ILR 356, where it was recapitulated the principle that when one party is absent from the trial, the party at present would need to show the merits of their respective case. It held as follows:
"The Court is mindful of the role in an Ex-Parte hearing by referring to the case of Ike Video Distributors 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 Vol 3rd Edition at p 716:
A rule empowering the tribunal to proceed Ex-Parte if a party is absent and sufficient cause is not given for the absence would enable it to do away with an inquiry or pass on an Award without giving a finding on the merits of disputes. In other words, the absence of a party does not entail the consequence that an Award will straightway be made against him. Dawood Khan v. Labour Court [1969] 11 ILJ 611 (AP) per Chinnappa ReddJ: "Ex parte" only means in the absence of the other
