INDUSTRIAL COURT MALAYSIA

CASE NO.: 6(15)/4 - 1841/19

BETWEEN

JENNIFER BALAGUT SIGISMOND BALAGUT

AND

SPOTTORDER SDN. BHD.

AWARD NO: 53 OF 2022

BEFORE : YA PUAN REIHANA BINTI ABD RAZAK

CHAIRMAN

VENUE : Industrial Court Malaysia, Kuala Lumpur

DATE OF REFERENCE : 26.09.2019.

DATES OF MENTION : 24.10.2019, 18.11.2019, 16.12.2019,

06.01.2020, 14.01.2020, 28.01.2020,
19.02.2020, 24.02.2020, 17.02.2021,
17.03.2021.

DATE OF HEARING : 07.05.2021.

REPRESENTATION
:
FOR THE CLAIMANT Mr. Harjit Singh
Malaysian Trades Union Congress (MTUC)

FOR THE COMPANY : Company – absent

REFERENCE

This is a reference made under section 20(3) of the Industrial Relations

Act 1967 arising out of the alleged dismissal of Jennifer Balagut

Sigismond Balagut (“the Claimant”) by Spottorder Sdn. Bhd. (“the

Company”) on 08.03.2019.

AWARD

EX PARTE HEARING

[1] The Court proceeded with the hearing ex parte. The Company or its

representative failed to attend Court though the Company was served

with the notice of hearing.

[2] The Company’s Chairman one Mr. Rodger Johnston attended

the Court on a few mention dates and both parties have been given

directions by the Court to file all the respective pleadings. The Court fixed

07.05.2021 for hearing.

[3] The Claimant filed her Statement of Case accompanied with

documentary exhibits which are the employment contract, termination

letter and emails correspondences with the Company prior to her

termination.

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[4] The Company filed its Statement in Reply contending

the Claimant’s dismissal was due to financial constraint of the Company.

[5] On the hearing date 07.05.2021, the Company’s representative was

not present although the notices were duly served on the Company and

directions for hearing had been given by the Court to both parties when

they were present in Court on mentions dates.

[6] The Court proceeded with the hearing ex parte because

the Company was served with the notice of hearing and was informed of

the hearing date but for reasons best to them, has opted not to attend

Court or defend the Claimant’s claims against the Company.

[7] In making the decision whether to hear this matter ex parte,

the Court had considered that it is only fair to the Claimant that

the hearing did not get further delayed by the Company which had been

notified of the hearing dates by the Court.

[8] As the Company was absence during the hearing, the Court can

presume it is not interested in defending the case despite the notices and

opportunities given.

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[9] The Court invokes its powers under section 29(d) of the Industrial

Relations Act 1967 to hear this case ex parte. Section 29 (d) provides that

the Court may, in any proceedings before it:

“(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 or summons to appear.”.

[10] The Court is required to hear the merits of the case based on

the evidence adduced before it by the party to the proceedings.

[11] Although the case proceeded ex parte, this Court is required to

evaluate all the evidence adduced by the Claimant and stated by

the Company before deciding whether the dismissal is with or without just

cause or excuse.

CLAIMANT’S PLEADED CASE

[12] The Claimant in her Statement of Case states that she commenced

employment with the Company as Project Manager on 16.03.2018 with a

gross salary of RM13,000.00.

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[13] The Claimant avers that she was on a two years Fixed Term

Contract commencing from 16.03.2018 ending on 15.03.2020 with an

option to be renewed subject to earlier termination as provided in

the agreement.

[14] The Claimant states that she is subjected was to a three months’

probationary period from 16.03.2018.

[15] The Claimant contended that it was stated in the Employment

Agreement between her and Spott Pte Ltd (the Singapore based

Company) as follows:

“The Employee will work at the offices of the Company in

Kuala Lumpur. Once Spott has established a local Malaysian
entity, the employment contract shall be transferred to this
entity.”

[16] The Claimant also avers that the said agreement provides for early

termination of not less than three months in writing by either party.

[17] The Claimant contended that the Malaysian entity, (Spottorder Sdn.

Bhd.) was incorporated on 27.06.2018 and from 27.06.2018

the Claimant’s employment contract was transferred to the Malaysian

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entity (the Company) as per the terms and conditions in her employment

contract.

[18] The Claimant contended that she served the Company and

continued receiving her salary until December 2018.

[19] The Claimant contended that she did not receive her salary for

the period of 1st January 2019 to 8th March 2019.

[20] The Claimant contended that vide email dated 08.03.2019, from one

Wout De Jong, she was dismissed by the Company alleging redundancy

and financial problems of the Company. The email states as follows: -

“In general I am very sorry for the fact that we had to terminate
your employment with Spott. Your contribution to the
development of the company has been very important.
Unfortunately, though the company had to go through
reorganisation and restructuring due to which the
employment of several of our colleagues had to be terminated.
We will do everything possible to conclude the termination
process as soon as possible.”

[21] The Claimant avers that her job functions were still existing after her

dismissal and that her job functions were taken over by her supervisor

one Ms. Hannah.

[22] The Claimant asserts that her dismissal is without just cause or

excuse.

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COMPANY’S PLEADED CASE

[23] The Company in its Statement in Reply admitted that the Claimant

is its employee and was terminated on 08.03.2019 based on the reason

provided in the email dated 08.03.2019.

LAW AND BURDEN OF PROOF

[24] In the Supreme Court case of Wong Chee Hong v. Cathay

Organisation (M) Sdn. Bhd. [1988] 1 CLJ (Rep) 298 at page 302,

the duty of the Industrial Court was firmly stated as follows:

“When the Industrial Court is dealing with a reference under

section 20, the first thing that the Court will have to do is to
ask itself a question whether there was a dismissal, and if so,
whether it was with or without just cause or excuse.”

[25] In the case of Goon Kwee Phoy v. J & P (M) Bhd. [1981] 2 MLJ

129, his Lordship Raja Azlan Shah CJ Malaya at page 136 impressed

upon the Court its duty and said:

“Where representations are made and are referred to the

Industrial Court for enquiry, it is the duty of that court to
determine whether the termination or 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 the 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 the
termination or dismissal was without just cause or excuse.

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 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.”.

[26] In Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni

Nair & Anor [2002] 3 CLJ 314, it was decided that the onus of proving

that the dismissal is or without just cause or excuse is on a balance of

probabilities as decided

EVALUATION OF FACTS AND FINDINGS

[27] It was the Claimant’s pleaded case and her testimony in Court that

the Company dismissed her on 08.03.2019.

[28] The Claimant was the only witness testifying for her case and had

not called any other witness.

[29] The Company filed its Statement in Reply but failed to attend

the hearing though being in receipt of the Court’s letters and notices. This

simply shows that the Company is not interested in defending

the Claimant’s claim that she has been unjustly dismissed by

the Company.

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[30] The Claimant’s testimony went unchallenged by any evidence from

the Company. This Court on a balance of probabilities is satisfied that the

Claimant was dismissed without just cause or excuse.

RELIEF

[31] The Company has dismissed the Claimant without just cause or

excuse. Considering the circumstances, the Claimant had been

dismissed and the Company’s failure to attend the Court proceedings, it

would not be in the interests of industrial harmony to reinstate

the Claimant to her former position.

[32] The Claimant states that she commences employment with

the Company on 16.03.2018 and was terminated on 08.03.2019. As such,

based on the unchallenged Claimant’s testimony, she served

the Company roughly for 11 months 8 days with a salary of RM13,000.00

a month.

[33] The Claimant was employed under a fixed term contract for two

years and was terminated without just cause or excuse on 08.03.2019,

thus leaving an unexpired period of about 12 months 8 days.

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[34] The Claimant told the Court that she was unemployed for nearly

8 months before obtaining a job on 11.11.2019 with a salary of

RM9,500.00 per month.

[35] Apart from the Claimant’s testimony in Court, that she was

unemployed for nearly 8 months, there was no other evidence adduced

by the Claimant before this Court to show that she has attempted to find

jobs for her living before 11.11.2019.

[36] As the Court is of the view that a compensation order is more

appropriate in this case, the compensation will be calculated based

remaining the 12 months’ period of the Claimant’s contract with

the Company, taking into consideration her last drawn salary which was

RM13,000.00 and the difference of her last drawn and current salary of

RM9,500.00 which is RM3,500

[37] The Court make the following calculation:

8 months x RM13,000.00 = RM104,000.00

4 months x RM3,500.00 = RM14,000.00
= RM118,000.00
less 10% scale down = RM11,800.00
TOTAL = RM106,200.00

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[38] This decision is arrived at based on the totality of the evidence

before the Court and this Court acting according to equity and good

conscience as well as substantial merits of the case without regard to

technicalities and legal form.

[39] The award sum of RM106,200.00 is to be paid by the Company to

the Claimant through MTUC after deducting the necessary statutory

deductions, (if any), within 30 days from the date of this award.

HANDED DOWN AND DATED 04TH JANUARY 2022

-signed-

(REIHANA BINTI ABD RAZAK)

CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR

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