FULL AWARD 18/4-1257/22

IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO. 18/4-1257/22

BETWEEN

KOAY KAR HIN

AND

MANSION ONE SUITES SDN. BHD.

AWARD NO. 355 OF 2023

Before : Y.A. TUAN JEYASEELEN A/L T. ANTHONY

Chairman (Sitting Alone)

Vanue : Industrial Court of Malaysia

Penang Branch

Date of Reference : 08.08.2022

Dates of Mention : 05.09.2022, 26.09.2022, 18.10.2022, 24.11.2022,

07.12.2022, 05.01.2023, 17.01.2023

Date of Hearing : 01.02.2023

Representation : Claimant absent

Mr. Chuah Chong Yen

Learned Counsel from CY Chuah & Hang
for the Respondent

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AWARD

Reference.

[1] This is a reference made on 08.08.2022 by the Director General

Industrial Relations Department to the Industrial Court of Malaysia under
Section 20(3) of the Industrial Relations Act 1967 (‘the Act’) arising out of
the dismissal of KOAY KAR HIN. (‘the Claimant’) by MANSION ONE
SUITES SDN. BHD. (‘the company’) on 30.11.2021. The Director
General’s reference in this case before the court requires the court to hear
and determine the Claimant’s complaint of dismissal by the company.

Background.

[2] Pursuant to the Director General’s reference dated 08.08.2022 the

matter was fixed for mention on 05.09.2022 wherein the Director of the
Company Ms Looi Jee Dee was present however the claimant was not
present when the matter was called up by the Assistant Registrar. The
court then fixed 26.09.2022 as the next mention date through google
meet. The claimant subsequently appeared in court at about 10.30am and
was informed of the next mention date.

[3] On the 26.09.2022, the claimant was represented by MTUC and Ms.
Looi Jee Dee appeared for the company. Directions were then given to
the claimant representative by the Assistant Registrar to file their
Statement of Case and Bundle of Documents by the 18.10.2022 and a
mention was fixed on 18.10.2022 online by way of google meet. On the
18.10.2022, further directions were given by the Assistant Registrar to the
parties to file the Statement of Case and Bundle of Documents by the
10.11.2022 and Statement in Reply and Bundle of Documents by the
24.11.2022. Thereafter a mention date was also fixed on 24.11.2022 by
way of google-meet.

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[4] On the 24.11.2022, the court was informed that the claimant’s
representative from MTUC, Mr. Shahul Hamid wishes to discharge himself
from acting for the claimant. The company’s counsel Mr. Chuah Chong
Yen was also present. The court then fixed the matter for mention on
07.12.2022 at 9.30 am wherein parties were directed to attend court
physically before the Chairman. The company had filed their Bundle of
Documents on 01.12.2022. A letter from the court dated 25.11.2022 was
sent to the claimant by A.R Registered Post informing him of the next
mention date on 07.12.2022 which was duly acknowledged by him.

[5] On the 07.12.2022, the matter was called up for mention before me
at about 10.25am with only the company’s counsel appearing before me
and the claimant was absent. The court then decided to fix another
mention date on 05.01.2023 at 9.30am to give an opportunity for the
claimant to present himself physically before the court to seek further
directions from the court. At this time the claimant has still not filed his
Statement of Case and Bundle of Documents. A letter from the court
dated 12.12.2022 was also sent to the claimant by A.R. Registered Post
informing him of the next mention date on 05.01.2023.

[6] On the 05.01.2023, the claimant attended court at about 9.45am and
left the court thereafter without informing the court. When the matter was
called before me only the company’s counsel was present. The court then
fixed the matter for hearing on the 01.02.2023 at 9.00am. Up to this time
the claimant had failed to file his Statement of Case and the court directed
the company to file their witness statement.

[7] The court then decided to fix another mention date on 17.01.2023.
The relevant notifications via a letter from the court dated 06.01.2023
informing the claimant of the new mention date of 17.01.2023 and Form
G, the Notice of Hearing informing the claimant of the hearing date was
sent to the claimant by A.R Registered Post on 06.01.2023 and both the
A.R cards was acknowledged by the claimant. The mention date of
17.01.2023 was fixed by this court so as to get confirmation from the
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claimant whether he is interested in pursuing his claim as he has failed to

file his Statement of Case and also to inform the claimant of the hearing
date on 01.02.2023 and whether he wishes to appoint counsel to
represent him.

[8] On the 17.01.2023, when the matter was called up at about 10.45am
as the court felt that some time should be given to the claimant to make
his appearance in court due to his age, the claimant was absent again
with only the company’s counsel appearing before me in open court. This
court then directed that the matter will proceed for hearing on the
01.02.2023. The company’s counsel informed the court that they have
filed their witness statement on 16.01.2023. The company was unable to
file their Statement of Reply since the claimant has failed to file his
Statement of Case, there was nothing on record to reply to in order for the
company to state their case.

[9] On the hearing date of the matter, 01.02.2023, the claimant was
absent when the matter called up before me. The claimant was absent
despite being informed of the hearing date by a Notice of Hearing (Form
G) sent to the claimant on 06.01.2023 by A.R Registered Post which was
acknowledged receipt by the claimant.

[10] This court then directed the matter to be heard ex-parte as the
company was ready to proceed with the case with one witness, Ms Looi
Jee Dee (COW-1) who is the Hotel Manager. The company’s Bundle of
Document was marked as COB and COW-1’s witness statement was
marked as COWS-1.

[11] By virtue of Section 29 (d) of the Industrial Relations Act 1967, this
court has the power to hear and determine the matter notwithstanding the
failure of any party to file in their Statement of Case or Statement of Reply.

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[12] This court is also guided by the often quoted principle enunciated
with regards to ex-parte hearings where the learned author O.P Malhotra
opined in his book the Law of Industrial Disputes Volume 1 at p.844 as
follows:

At the time of commencement, the parties should be present unless

the case has taken such a course as to justify the adjudicator in
proceeding ex-parte. If however, a party wilfully absents himself or
conducts himself in such a way that the adjudication is likely to be
impeded, or wilfully tries to delay or avoid proceedings, the Tribunal
may fix a peremptory hearing a particular day. After reasonable
notice of hearing has been given to the defaulting party, if he still
neglects or refuses to attend, the Tribunal may and ought to hear in
his absence. Prompt discharge of business is of particular
importance before a Tribunal adjudicating an industrial dispute.
Dilatory tactics must, therefore necessarily be discouraged. When a
claimant in a dispute appears to be contumacious in his conduct,
the Tribunal is justified in relieving the opposite party of the ill-effects
of such harassing dilatoriness. But to proceed ex parte is a serious
matter, and before doing so the Tribunal should satisfy itself that the
absconding party has no good ground for not appearing.

[13] The claimant in this case has a history of being conspicuously

absent at the date and time fixed by the court. He was absent on the
mention date and at the time fixed by this court on 05.09.2022, the
claimant appeared late in court at 10.30am after the mention of the case
was over. Thereafter on 24.11.2022, the claimant was absent when his
counsel discharged himself, on 07.12.2022 the claimant was absent and
on 05.01.2023 the claimant appeared in court for a short while and left the
court there after. The claimant was again absent when the matter was
called up and 17.01.2023 although the necessary notification letter was
sent to him.

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[14] In such circumstances, the court had no alternative but to fix a

peremptory hearing date on the 01.02.2023 with the necessary notice of
hearing under the Industrial Court Rules 1967 being served on him as
adverted to earlier. Again the claimant was absent. As such, this court is
satisfied that under the circumstances, that the claimant is contumacious
in his conduct and therefore has no good ground for not appearing in
court.

[15] The trial then proceeded ex-parte on 01.02.2023 with COW-1 being
the sole witness for the company. Oral submissions were heard at the end
of the hearing.

Brief Facts of the Case.

[16] The claimant was appointed as a House Keeper at the company’s

hotel in Jalan Sultan Ahmad Shah, Penang pursuant to a Letter of
Appointment dated 28.10.2021 (COB Tab A) with a salary of RM 1,200.00
per month.

[17] The claimant only attended work at the hotel for only eight days
according to the company, beginning from the 28.10.2021. Thereafter
from the 07.11.2021, the claimant never turned up to work with no reasons
given to his employer, the company. Nevertheless, the company decided
to pay the claimant for the eight days that he had worked with the
company. An amount of RM 191.27 was paid to the claimant together with
EPF contribution. The company contended that they never terminated the
employment of the claimant.

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Role of the Industrial Court.

[18] The role of the Industrial Court was succinctly described by His
Lordship Tun Salleh Abas in the case of Wong Chee Hong v Cathay
Organisation (M) Sdn. Bhd. [1988] 1 CLJ 45, where the Supreme Court
held that the role of the Industrial Court pertaining to a reference under
Section 20 (3) of the Industrial Relations Act 1967 is to ask itself a question
whether there was a dismissal; and if so, whether it was with or without
just cause or excuse.

The Burden and Standard of Proof.

[19] It is trite law that the company bears the burden of prove that the
dismissal was with just cause or excuse by tendering cogent evidence to
prove the same. In Samirah Lee v Freescale Semiconductor (M) Sdn
Bhd [2010] 1 ILR 103 the court held that:

“The burden of proof lies on the employer. He is obliged to prove his

case on a balance of probabilities. It is for him to adduce evidence
that the workman was dismissed for just cause or excuse”.

However, since the company contended that they did not terminate the
employment of the claimant, therefore it is incumbent on the claimant to
prove that he was dismissed by the company. (Welltex Knitwear
Industries Sdn. Bhd v Low Ken Toy & Anor [1998] 1 LNS 258).

[20] On the standard of proof that is required to discharge the burden of

proof the Court of Appeal in the case of Telekom Malaysia Kawasan
Utara v Krishnan Kutty Sangwai Nair & Anor [2002] 3 CLJ 314,
decided that the standard of proof is on a balance of probabilities.

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[21] Following the principles established in Wong Chee Hong, this court
is thus duty bound to determine the following issues:

a. Whether there was a dismissal;

b. And if so, whether the dismissal of the claimant by the company
was effected with or without just cause or excuse;

Evaluation of the evidence and findings of this court.

The company’s submission.

[22] The company’s counsel submitted that they are in the dark with
regards to the grounds of the claimant’s claim as the claimant has failed
to file his Statement of Case. They further submitted that the company did
not sack the claimant and that he had absconded from work by not
showing up to work after 07.11.2021. Despite that it was submitted that
the company had paid their dues to the claimant amounting to RM 191.27
(COB Tab B).

[23] The company therefore submitted therefore there was no wrongful

termination by the company against the claimant.

[24] This court has time and again expressed strong views against
claimants who fail to be present in court or fail to file their Statement of
Case despite being directed to do so by this court. At this juncture it would
be useful highlight the decision of this court in V-Pro Corporation (M
Sdn.Bhd v Looh Weng Chong Award no. 104 of 1991 where the
learned Chairman W. Satchithanandhan had stressed on the importance
of a filing a Statement of Case and being present in court on the date of
the hearing. The court stated:

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“The Court is under a social and public duty to make Awards in all
the cases that are referred to this Court as soon as practicable.
However, where a Claimant has failed to be present in Court or file
a Statement of Case the impression created is that the claim has
probably been settled or abandoned or that the Claimant is plainly
indifferent. The Claimant has obviously by his conduct rejected the
opportunity that has given to him to have his case heard. In all the
circumstances of this case this court exercised its discretion to strike
off the ……case…..(p.3).”

[25] Further in Lotteries Corporation (Sabah) Sdn.Bhd. v Vincent Lee

Award no. 159 of 1991, this court had taken a serious view in finding that
a party who file their Statement of Case or Reply within the stipulated time
then it can be considered that the party has abandoned its case. Learned
Chairman W. Satchithanandhan held as follows:

“In normal circumstances silence and inactivity evidence by a failure

to file a Statement of Case or Reply gives rise to grave doubts as to
whether a claimant or company is interested in proceeding with a
hearing of ministerial reference. A failure to file a Statement of Case
and Reply in time could mean the claimant or company has
abandoned its case…”

This court stands guided by these decisions of the Industrial Court.

[26] Moving on, it is pertinent to note from the evidence of COW-1 in her
witness statement COWS-1 that the company never terminated the
employment of the claimant. COW-1 testified that the claimant only turned
up for work for only eight days that is on the 28.10.21, 29.10.2021,
30.10.2021, 31.10.2021, 02.11.2021, 03.11.2021, 04.11.2021 and
06.11.2021.

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[27] COW -1 further testified that the claimant had on the 07.11.2021
gave her his bank statement and requested that the company pay him his
salary. She added that it was at this point the claimant also gave COW-1
a medical certificate confirming that he will be on sick leave for 3 days
from the 06.11.2021 until 08.11.2021 (COB Tab D).

[28] Thereafter from the 07.11.2021 onwards according to COW-1 the

claimant never showed up to work without assigning any reasons
whatsoever. COW-1 testified that the claimant did not inform her or any of
her staff at the company why he did not show up to work. The company
had tendered the company’s employees sign in or attendance book (COB
Tab C) to prove the same. Based on the medical certificate (COB Tab D)
the claimant should have reported to work at the company on the
09.11.2021 but had failed to do so and thereafter too without even
notifying the company as to the reason for his prolonged absence at work.

[29] COW-1 testified that it was the claimant who breached the contract
of employment between the company and him by not turning up to work
and had left his employment without giving the company any proper
notice. This was supported by the fact that the Penang Labour Office
ordered the claimant to pay RM 280.00 to the company as payment in lieu
of notice (refer Perintah Jabatan Tenaga Kerja P.Pinang at COB Tab E).
Hence, COW-1 testified that the claimant’s claim against the company is
baseless.

[30] Under Section 15(2) of the Employment Act 1955 it is provided that:

An employee shall be deemed to have broken his contract of service

with the employer if he has been continuously absent from work for
more than two consecutive working days without prior leave from
his employer unless he has a reasonable excuse for such absence
and has informed or attempted to inform his employer of such
excuse prior to or at the earliest opportunity during such absence.

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[31] In Murata Electronics (M) Sdn. Bhd. v Manimaran A/L Gopal

Award 333 of 1998, this court following Award 55/82 has decided that it
is clear from the wordings of Section 15(2) that it is a deeming provision
and as such it is a presumption which is rebuttable by the employee. The
presumption under Section 15(2) of the Act is that an employee who is
absent for more than two days without obtaining prior leave from his
employer is presumed to have breached his contract of service with his
employer. Naturally, this presumption however, can be rebutted if the
claimant can prove to the satisfaction of the court that he had reasonable
excuse for such absence and has informed or attempted to inform his
employer of such excuse prior to or at the earliest opportunity during such
absence. COW-1 in her evidence confirmed that the claimant had not
informed the company as to why he failed to report for duty since he did
not even give any reasons. This evidence was not rebutted by the
claimant since he was absent on the day of the hearing.

[32] In Jeepwanlal Ltd v Their Workmen, 20 Indian Factories and

Labour Report 182, the Indian Supreme Court held:

“..…..if an employee continues to be absent from duty without

obtaining leave and in an unauthorised manner for such a long
period of time….an inference may reasonably be drawn from such
absence that by his absence he has abandoned service……”

[33] Hence, this court finds that the claimant has failed to rebut the
presumption under Section 15(2) of the Act as he had failed to tender any
evidence to the contrary in order to rebut the said presumption due to his
absence on the day of the hearing.

[34] As such this court accepts the evidence of COW-1 that it was the
claimant who breached the contract of employment between the company
and him by not turning up to work and abandoning his employment with
the company. Therefore, this court finds as a matter fact that the claimant
is presumed to have broken his contract of service with the company
which is tendered before this court in COB Tab-A.

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[35] As it stands, the company’s documentary evidence as contained in

COB (Tab A-E) and the evidence of COW-1 that the claimant himself
breached the contract of employment between the company and him by
not turning up to work and had left his employment with the company
stands un-rebutted by the claimant. There is not even an iota of evidence
produced by the claimant to prove to this court that he was unfairly
dismissed by the company. Therefore, the company’s case which was
brought through the evidence of COW-1 must be presumed to be true.

Conclusion.

[36] Since this court has found that the claimant has failed to rebut the
company’s case and has held to be true, the version of COW-1 that it was
the claimant who breached the contract of employment by not turning up
to work and abandoning his employment hence this court finds that the
issue of whether the dismissal was with or without just cause or excuse
does not arise. In support of this finding, the court relies on the case of
Welltex Knitwear Industries Sdn. Bhd. v Low Kan Toy & Anor [1998]
1 LNS 258 where Abdul Kadir Sulaiman J held:

The law is clear that if the fact of dismissal is not in dispute, the
burden is on the company to satisfy the court that such dismissal
was done with just cause or excuse. This is because, by the 1967
Act, all dismissals is prima facie done without just cause or excuse.
Therefore, if an employer asserts otherwise, the burden is on him to
discharge. However, where the fact of dismissal is in dispute, it
is for the workman to establish that he was dismissed by his
employer. If he fails, there is no onus whatsoever on the
employer to establish anything for in such a situation no
dismissal has taken place and the question of it being with just
cause or excuse would not at all arise. (See Wong Chee Hong
v Cathay Organisation (M) Sdn. Bhd. [1988] 1 CLJ 45).

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[37] In premise, the claimant’s case is hereby dismissed.

HANDED DOWN AND DATED THIS 20th DAY OF FEBRUARY 2023

-signed-
( JEYASEELEN A/L T. ANTHONY )
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
PENANG

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