Award 39476
Award 39476
Award 39476
BETWEEN
AND
2. SIMON SOH
1
REFERENCE
20(3) of the Industrial Relations Act 1967 dated 21.02.2020 pertaining to the dismissal
22.07.2019.
Procedural History
[1] Pursuant to the Court’s directive on a date fixed for case management on
08.05.2023 held before the Chairman, the parties were ordered to file the relevant
pleadings on specified dates and fixed for hearing on 18.07.2023. It must be noted that
the Claimant was present while the Company had been absent.
[2] Hence, this case was ordered to proceed with the hearing ex-Parte because of
this award, this Court had only considered the Claimant’s Statement of Case, the
[3] The hearing was proceeded by way of an ex-parte hearing due to the absence of
2
FACTS
[4] After the mention date was fixed for administrative purposes and file
management purposes, this Court commenced and completed the trial of this
case on 18.07.2023, where evidence was duly recorded from two (2) witnesses
[5] The Claimant commenced employment with the Company on 22.12.2009 for the post
of Lighting Design Engineer for the New & Product Development Department, with
an increment and the adjusted basic salary is RM3,200.00 per month with effect from
January 2011. On 29.01.2013, the Claimant received another increment which made
the Claimant’s new salary RM 4,400.00 effective January 2013. On 17.02.2014, the
Claimant received another increment with the newly adjusted basic salary of RM
[6] The Company transferred the Claimant from Kamunting Plant, Taiping to Puchong
Office, Selangor, with the title Senior Design Engineer with effect from 29.12.2014
vide the Company’s letter dated 05.12.2014. On the same day, the Company had
3
On 25.09.2017, the Company had given the Claimant’s living expenses allowance of
RM 500.00 per month with effect from September 2017. On 01.06.2018, the Claimant
was promoted to Assistant Manager for the Sales & Marketing Division with a basic
[7] The said employment was permanent. The Claimant's last drawn salary was RM
8,225.00 per month until his terminated of employment. The Claimant had discharged
his duties and responsibilities to the best of his abilities and in the interests of the
[8] The Claimant now presents before this Court to aver that his respective terminations
from service were without just cause or excuse and were contrary to the principles of
CLAIMANT’S CASE
[9] The Claimant had a legitimate expectation that his fixed term contract would be on
a permanent. However, things started to turn sour when the Company failed to pay
the Claimant's full monthly salary and instead only paid his salary by way of staggered
payments. The Claimant contends that the Company' s continuous conduct in failing
to pay him his half monthly salary for May 2019 and full monthly salary for both June
2019 and July 2019 were wilful breaches of the Company’s obligations under the
4
[10] The Claimant had repeatedly demand and payment of his salary to the
predicaments due to the Company' s failure to pay the Claimant's half monthly
salary for May 2019 and full monthly salaries for June 2019 and July 2019.
[11] In the Claimant’s letter dated 22.07.2019, the Claimant officially notified the Company
that due to its breach of the employment contract terms and its failure to remedy the
said breach, the Claimant has thus been constructively dismissed by the Company
THE ISSUE
[12] The sole issue that arose for the determination of this Court was whether the
Claimant was terminated with just cause or excuse. That notable pronouncement
in the case of Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd. [1988]
1 CLJ 45 (of the then Supreme Court of Malaysia) as per Tun Salleh Abas LP,
“When the Industrial Court is dealing with a reference under s. 20, the first thing
that the Court will have to do is to ask itself a question [of] whether there was a
dismissal, and if so, whether it was with or without just cause or excuse.”
5
[13] In the case of Syahirah A Karim v. Baiduri Dimensi Sdn Bhd [2019] 2 LNS
3192 (Award 3192 of 2019) 24, on the issue of the Company’s letter titled
“[90] In Lewis v. Motorworld Garage Ltd [1985] IRLR 465, Neil LJ held as
follows:
repudiatory breach of the implied term of the contract of employment that the
employer will not, without reasonable and proper cause, conduct himself in a
... In the very first day where he was subordinated to the said GM, the latter
abused his superior position in an arbitrary and capricious manner which was
manifestly vindictive in nature. It is the court’s finding that the conduct of the
term of trust and confidence. While the company might not have calculated to
destroy or seriously damage the said trust and confidence, the said conduct had
claimant and the company. The court accordingly holds that the claimant had
6
THE GENERAL PRINCIPLE
[14] In Colgate Palmolive Sdn. Bhd. v. Yap Kok Foong [1998] 2 ILR 965 (Award
he has been dismissed, and secondly that such dismissal was without lust
cause or excuse. It is upon these two elements being established that the
workman can claim his relief, to wit, an order for reinstatement, which may be
industrial adjudication readily recognizes that any act which has the effect of
section 20.
The terminology used and the means resorted to by an employer are of little
[15] In Goon kwee Phoy v. J & P Coats (M) Bhd. [1981] 1 LNS 3018 Raja Azlan Shah
CJ (Malaya) (as Al-Marhum DYMM Paduka Seri Sultan Azlan Shah Sultan Perak
Darul Ridzuan, then was) speaking for the Federal Court ruled:
7
"Where representations are made and are referred to the Industrial Court for
dismissal is with or without just cause or excuse. If the employer chooses to give
a reason for the action taken by him, the duty of the Industrial Court will be to
enquire whether that excuse or reason has or has not been made out. If it finds
as a fact that it has not been proved, then the inevitable conclusion must be
that the termination or dismissal was without just cause or excuse. The
proper enquiry of the court is the reason advanced by it and that court or the High
Court cannot go into another reason not relied on by the employer or find one for
it."
[16] That learned author, Dr. Dunston Ayadurai in his erudite text Industrial Relations
"A workman can seek a remedy under section 20 only if he had been dismissed.
More often than not, there is no dispute that there was an actual dismissal of the
workman by his employer. The only issue for the Industrial Court to
determine is whether the dismissal had been for just cause or excuse, the
onus of proving the existence of the same being cast upon the employer."
[17] And this onus or burden of proof on the Company is based on a standard of a
AIL Subramaniam James (1995] 2 ILR 1119 and Telekom Malaysia Kawasan
Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314)
8
[91] It is submitted by the Company that the Claimant had failed to comply with
December 2018 and failure to comply with supervisor’s orders would tantamount
correct, the actions of the Company in this case however illustrates that the
[92] The ill motive of the Company became crystal clear when the Company
had failed to give a proper reply to the Claimant’s grievances or complain about
the unfair treatment she was undergoing via her letter dated 14 January 2019.
Similarly, when the Claimant after 3 days of non-response from the Company
wrote to inform that she was claiming constructive dismissal due to the
Company’ s actions, the Company did not even see it fit to deny her allegations.
Instead, the Company had quickly acknowledged the Claimant’s letter within a
day and considered that the Claimant had willingly resigned from the Company.
Through its actions, the Company’s intent to drive the Claimant out of her
9
ROLE OF INDUSTRIAL COURT
[18] The role of the Industrial Court was lucidly explained by His Lordship Raja Azlan
Shah CJ (Malaya) (as His Royal Highness then was) in a Federal Court Case of Goon
Kwee Phoy V. J & P Coats (M) Bhd. [1981] 1 Lns 30; [1981] 1 Mlj 129 at page
136 as follows:
“Where representations are made and are referred to the Industrial Court for
enquiry, it is the duty of the Court to determine whether the termination or
dismissal is with or without just cause or excuse. If the employer chooses to give
a reason or excuse for the action taken by him, the duty of the Industrial Court
will be to enquire whether that reason or excuse has or has not been made out.
If it finds as a fact that it has not been proven, then the inevitable conclusion must
be that the termination or dismissal was without just cause orexcuse. The proper
enquiry of the Court is the reason advanced by the employer, and that Court or
the High Court cannot go into another reason notrelied on by the employer or find
one for him.”
[19] The role of the industrial Court in a dismissal case has been further propounded
by another landmark case held by the Federal Court. His Lordship Mohd Azmi FCJ
(then) speaking for the Federal Court coram in Milan Auto Sdn Bhd v Wong Seh
“As pointed out by this Court recently in Hong Leong Assurance Sdn Bhd vs
Wong Yuen Hock [1995] 2 MLJ 753, the function of the Industrial Courtin dismissal
cases on a reference under s 20 is twofold, first, to determine whether the
misconduct complained of by the employer has been established, and secondly,
whether the proven misconduct constitutes just cause or excuse for the
dismissal”.
10
BURDEN OF PROOF
[20] The burden of proving that the employee is guilty of the allegation of misconduct
or negligence as the case may be and establishing the reasons for dismissal
rests squarely upon the employer. This was aptly stated by the Industrial Court
"It may further be emphasized here that in a dismissal case the employer
must produce convincing evidence that the workman committed the offence
been dismissed. The burden of proof lies on the employer. He must prove
the workman guilty, and it is not the workman who must prove himself not
Court had this to say with regards to the burden of proof in dismissal
cases:
that offence or offences the workman is alleged to have committed for which
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The burden of proof lies on the employer to prove that he has just cause
and excuse for taking the decision to impose the disciplinary measure of
dismissal upon the employee. The just cause must be, either a misconduct,
[22] The standard of proof applicable to dismissal cases is the civil standard of proof
Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 1
MELR 4; [2002] 1 MLRA 188; [2002] 3 MLJ 129; [2002] 3 CLJ 314; [2002] 3
"Thus, we can see that the preponderant view is that the Industrial Court,
when hearing a claim of unjust dismissal, even where the ground is one of
Law by H. W. R. Wade & C.F. Forsyth offers the clearest statement on the
[23] In the case of Manimaran Karuvanan v. Tav Facility Solution (M) Sdn Bhd
[2020] MELRU 1374 the Company failed to turn up when the case was called for
hearing. The Industrial Court had proceeded with an ex-parte hearing on the merit
of the case pursuant to s 29(d) of the IRA 1967. It was held inter alia as follows:
12
... "As such, both parties had been sufficiently informed of the hearing dates
fixed for this case. However, the Company failed to turn up in Court on the
pursuant to s 29(d) of the IRA 1967. In relation to this, the Court is guided
by the case of Lee Mei Wan v. Ultimate Media Group Pte Ltd [2017]
Ex-parte Hearing
[4] Subsection 29(d) of Act 177 provides for an ex-parte hearing without the
(a)
(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
absence of any party to the proceedings who has been served with a notice
or summons to appear."
Therefore, the Court was of the view that in the circumstances of this case,
Court although the Notice of Hearing and the earlier Notice of Mention had
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[24] Nevertheless, the Court must not forget its ultimate duty in considering the relevant
facts and determining the case on merit albeit hearing the matter Ex-Parte. This Court
Chao Chee Siam [2005] 1 MELR 792; [2005] 2 ILR 356 in which the Company was
absent during the date of the hearing. The Court LS ntinued to hear the case on an
"The Court is mindful of the role in ex parte hearing by referring to the case Of
Ike Video Distributors Sdn Bhd v. Chan Chee Bin [2004] 2 MELR 278; [2004]
2 ILR 687 where the Learned Chairman quoted from the book "The Law of
and sufficient cause is not shown for his absence, would not enable it
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
[Emphasis Added]
[25] Having put the factual matrix of the case in perspective, the duty of this Court in
relation to unfair dismissal claims under s 20(3) of the Industrial Relations Act such
as the present case, is the need to ask itself the following issues:
ii) Whether the dismissal was with just cause and excuse
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STANDARD OF PROOF
[26] The standard of proof applicable to dismissal cases is the civil standard of proof
“Thus, we can see that the preponderant view is that the Industrial Court,when
hearing a claim of unjust dismissal, even where the ground is one of dishonest
act, including “theft”, is not required to be satisfied beyond reasonable doubt that
the employee has “committed the offence”, as in a criminal prosecution… In our
view the passage quoted from Administrative Law by H. W. R. Wade & C.F.
Forsyth offers the clearest statement on the standard of proof required, that is the
civil standard based on balance of probabilities, which is flexible, so that the
degree ofprobability required is proportionate to the nature and gravity of the
issue.”
SDN BHD [2020] 2 LNS the Company failed to turn up when the case was called
for hearing. The Industrial Court had proceeded with an ex-parte hearing on the merit
of the case pursuant to section 29(d) of the IRA 1967. It was held inter aliaas follows:
… “As such, both parties had been sufficiently informed of the hearing dates fixed
for this case. However, the Company failed to turn up in Court on the Hearing date.
Hence, the hearing was ordered to proceed Ex-Parte pursuant to section 29(d) of
the IRA 1967. In relation to this, the Court is guided by the case of Lee Mei Wan v.
Ultimate Media Group Pte Ltd [2017]2 LNS 1668. It was observed that:
15
Ex-parte Hearing
[4] Subsection 29(d) of Act 177 provides for an ex-parte hearing without the
presence of one of the parties to the dispute as follows:
"The Court may, in any proceedings before it:
(a)
...
(d) hear and determine the matter before it notwithstanding the failureof any party
to submit any written statement whether of case or reply to the Court within such
time as maybe prescribed by the President orin the absence of any party to the
proceedings who has been servedwith a notice or summons to appear.”
Therefore, the Court was of the view that in the circumstances of this case, an ex-
parte hearing was warranted due to the Company’s failureto attend Court although
the Notice of Hearing and the earlier Notice of Mention had been served on it as
stated above.”
[28] Nevertheless, the Court must not forget its ultimate duty in considering the
relevant facts and determining the case on merit albeit hearing the matter Ex- Parte.
This Court is guided in this respect by the case of WONG BROTHERS BUILDING
CONSTRUCTION V. CHOO CHEE SIAM [2005] 2 ILR 356 IN which the Company
was absent during the date of the hearing. The Court continued to hearthe case on an
“The Court is mindful of the role in 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
O.P. Malhotra Vol. 3rd Edition. At p 716:
16
“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
words, the absence of a party does not entail the consequence that an
ISSUES
[29] Having put the factual matrix of the case in perspective, the duty of this Court in
relation to unfair dismissal claims under Section 20(3) of the Industrial RelationsAct
such as the present case, is the need to ask itself the following issues:
ii) Whether the dismissal was with just cause and excuse
COURT’S FINDINGS
[30] It is trite law that for dismissal cases, the burden of proof rests on the Company
SANGUNI NAIR & ANOR [2002] 3 CLJ 314 the Court of Appeal has laid down the
principle that the standard of proof required to prove a case in the Industrial Court is
based on the balance of probabilities wherein his lordship Justice Abdul Hamid
17
“Thus, we can see that the preponderant view is that the Industrial Court, when
hearing a claim of unjust dismissal, even where the ground is one of dishonest act,
including “theft”, is not required to be satisfied beyond reasonable doubt that the
On the other hand, we see that the courts and learned authors have used such
preponderance of the evidence,” “whether a case... has been made out”, “on the
In our view the passage quoted from Administrative Law by H.W.R. Wade & C.F.
Forsyth offers the clearest statement on the standard of proof required, that is the
civil standard based on the balance of probabilities, which is flexible, so that the
But, again, if we may add, these are not “passwords” that the failure to use them
or if some other words are used, the decision is automatically rendered bad in law.”
[31] As stated in the Dismissal Letter, the Company claimed that the reason for the
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WHETHER SUFFICIENT NOTICE WERE GIVEN FOR THE DISMISSAL
[32] Similar to other dismissal cases under s 20(3) of the IRA 1967, the standard of
KAWASAN UTARA v KRISHNAN KUTTY A/L SANGUNI NAIR & ANOR (SUPRA).
GEOPRODUCTION (M) SDN BHD & ANOR [2021] 1 MLJ 447 held that :-
made is not so much to the staff that had been retrenched but to those being
in the circumstances of the case. The fact which the High Court highlighted at
paras (2)(vi) and (17)(ii) of the judgment that on the same month as when the
whether the claimant had been rightly selected for retrenchment other than
gripping reality.
[59] Likewise when the High Court emphasized that overall 492 of the company’s
employees had been retrenched and that globally 6,000 employees of the
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What is relevant is whether the claimant ought to have been selected
before the axe would fall on the claimant and that when it does the claimant
would have no right to complain because the many that received the same
[34] The comparison should be made between the Claimant and those who are being
retained by the Company, and not those who have been retrenched. The fact that
other employees were also retrenched is not relevant to whether the Claimant was
GEOPRODUCTION (M) SDN BHD & ANOR (SUPRA) further held that :-
“[60] We accept as correct the following tests as laid down in Lilly Industries (M)
Sdn Bhd v Billy Wayne Selsor [2006] 3 ILR 1507 at para 26 that the company
20
Firstly, there must be redundancy. Secondly, the dismissed workman
And thirdly, the employer should have adopted a fair procedure before
These form the three pillars upon which an employer sets the stage
That is, the unshakable proposition of law which imposes the burden
c) The Company should have adopted a fair procedure before carrying out
the retrenchment.
[37] Be that as it may, there had NOT been an iota of evidence adduced by the
21
[38] Refer the Industrial Court’s case of KAM SENG EU v, OUD ESSENTIALS SDN
BHD [2019] 1 ILJ 110 where the Industrial Court had held as follows:-
“The company claimed that they are insolvent and was in the process of being
wound up, but when the court requested for documentary proof of winding up, the
company failed to produce and Mr Steven Malcolm Watts himself not be seen
present in the court. At the full trial, the claimant was present, but the company
Held, allowing the claim and awarding the claimant RM92,000 in back wages:
(1)… The company had failed to attend the hearing and no evidence was adduced
company. Therefore, the court found that the company has not discharged its
burden of proving its case on the balance of probabilities and the claimant’s
[39] The Company has not provided any documentary evidence to support its reason
22
DECISION
[40] It must be said that by being absent from attending the hearing and produce
witnesses to contradict the Claimant’s evidence during trial, the companies must be
taken to agreeing to the Claimant’s contentions or that the Company had no interest
It must be noted that above all, the Company had failed to file its Statement in Reply
[41] In the foregoing, this Court finds that the Claimant was in fact terminated by the
Company by virtue of its letter dated 22.07.2019. Be that as it may, the Company had
failed discharge the burden of proof that the Claimant was terminated with just cause
or excuse with the issuance of the Notice of Termination against the Claimant. The
Company had failed to show that it had acted bona fide in terminating the Claimant’s
services.
[42] It is therefore this Court’s conclusion based on equity and good conscience that
the Claimant had successfully made out his case of termination without just
cause or excuse. The Company had failed to prove its case of a valid dismissal
of the Claimant by failing to attend and give evidence on the hearing date. It must
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REMEDY
a) Reinstatement
basis of one month salary for each completed year of service. In the case of
the Claimant,he had served the Company for 9 year and six months. The
b) Backwages
Claimant had rendered for the Company shall be taken into consideration.
That being said, it is just and proper that the Claimant be hereby awarded
backwages of twenty (20) months salary based onhis last drawn salary prior
[45] At the same time, in deciding the quantum for backwages as emphasized earlier
on, this Court is also mindful and shall have regard to the following provision which
reads as follows:
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Item 1 of the Second Schedule in [Factors For Consideration In Making
“1. In the event backwages are to be given, such backwages shall not
exceed twenty four months backwages from the date of dismissal
basedon the latest drawn salary of the person who has been dismissed
withoutjust cause or excuse
[46] Having considered the totality of the facts and circumstances of the case this
Court awards backwages of eighteen (18) months to multiply with the Claimant’s last
drawn basic monthly salary as per Claimant’s Bundle of Authority marked as CLB1 is
RM5650.00.
[47] This Court having ruled that the Claimant was dismissed from his employment without
[48] The Claimant was a confirmed and permanent employee of this Company. The
Claimant commenced employment with this Company by first becoming the employee
Claimant was dismissed from his employment with this Company 22.07.2019. The
Claimant had thus served the Company for a period of 9 years 6 months.
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[49] The Claimant, in stating that his dismissal from employment with the Company was
without just cause or excuse, prays to this Court for reinstatement to his former
position in the Company without any loss of wages or other benefits. Considering the
factual matrix of this case where the relationship between the Claimant and the
Company can only be seen as having deteriorated after the Claimant's dismissal from
employment, it is this Court's view that reinstatement of the Claimant to former position
[50] As such the appropriate remedy in the circumstances of this case must be
line with Section 30(6A) of "The Act" and the factors specified in the Second Schedule
1. In the event that backwages are to be given, such backwages shall not
based on the last-drawn salary of the person who has been dismissed
[51] The Claimant's last drawn wages basic salary was RM5650.00 as per Claimant’s
Bundle of Documents.
[52] Equity, good conscience and substantial merits of the case without regard to
technicalities and legal forms remains the central feature and focal point of this Court
in arriving at its decision and these principles will be adhered to by this Court at all
26
[53] This Court is further bound by the principle laid down in the case of Dr James Alfred
(Sabah) v. Koperasi Serbaguna Sanya Bhd (Sabah) & Anor 12001] 3 CLJ 541
where his lordship Justice Steve Shim CJ (Sabah & Sarawak) in delivering the
"In our view, it is in line with equity and good conscience that the Industrial Court, in
assessing quantum of backwages, should take into account the fact, if established
law. Certiorari will therefore lie to rectify it. Of course, taking into account of
such employment after dismissal does not necessarily mean that the
assessing the quantum of backwages, should take into account all relevant matters
including the fact, where it exists, that the workman has been gainfully employed
elsewhere after his dismissal. This discretion is in the nature of a decision- making
process".
[54] This Court must take into account the post dismissal earnings of the Claimant in
case the effective date of dismissal was 22.07.2019; while the Claimant received
27
[55] In line with section 30 (6) and 30 (6A) of “The Act” and after having considered all
the facts of case on the appropriate sum to be awarded and after taking into account
the Claimant’s received new employment on 18.01.2021, this Court hereby orders
that the Claimant be paid (one) 1 month wages totaling RM5650.00 for every year of
and backwages of the last drawn basic salary of RM5650.00 for 18 months. This will
amount to: -
i) BACKWAGES ORDERED:
ii) Deduction 5%
Total: RM147,465.00
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FINAL ORDER OF THIS COURT
ZAINAL ABIDIN BIN ISMAIL ALYAMANI jointly and/or severally pay the Claimant a
sum of Ringgit Malaysia one hundred fourty-seven thousand four hundred sixty five
(RM147,465.00) only less statutory deduction (if any) within 30 days from the date of
this Award.
-signed-
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