industrial court malaysia - Malaysian Legal and Tax Information Centre

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Q : These 4 C's are part of the DMT? A : Yes. Q : But the rest of the DMT is not from the C's? A : That's right. Q : Before the Claimant was terminated, and you were not part of A : Yes. the DMT, Management decisions pertaining to the positions and the running of the Company would have been done by the DMT members? Q : You would not be able to give evidence on the policy decisions as considerations made by the Company pertaining to the Claimant's termination? A : I have no information on the decision.” It is evident from the above that COW1 had no personal knowledge pertaining to the decision to terminate the Claimant. COW1 agreed in cross examination that the Ex-CEO, Mr. Johan Dennelind was the one person who was in a position to throw some light on the decision to dismiss. COW1 testified as follows: “Q : Mr. Johan Dennelind was supposed to come but he is not coming? A : I was made aware that he can't come.” 10
Decision on the First Issue The burden of proof is on the Company to prove that the dismissal of the employee is with just cause or excuse which the Company has failed to do in this case. As observed in the Tip Top Motorcade case, “the burden of proof of the facts which would constitute just cause or excuse is on the employer. The employer discharges his burden by adducing evidence either oral or documentary, to prove the facts which he alleges as constituting just cause or excuse” In our case the reasons given for the dismissal were that the Company's plans of restructuring had led to the Claimant's position being abolished and also poor performance on the part of the Claimant. The Company's sole witness, COW1, who acknowledged that the Claimant had been his boss, confirmed under oath that he had no personal knowledge or information pertaining to the reasons for the dismissal in question. The inevitable conclusion is that the dismissal of the Claimant was without just cause or excuse. The Court has carefully and meticulously considered and evaluated the totality of the evidence before it on a balance of probabilities, bearing in mind s 30(5) of the IR Act 1967. Having considered all the facts, the totality of the evidence both oral and documentary and the submissions, and being guided by the principles of equity and good conscience and the substantial merits of the case, without regard to technicalities and legal form, this Court finds that the dismissal of the Claimant in this case was without just cause and excuse. 11
Page 1 and 2: INDUSTRIAL COURT MALAYSIA CASE NO:
Page 3 and 4: The Pleadings The Pleadings in this
Page 5 and 6: Bjorn Magnus Kopperud to him (page
Page 7 and 8: We wish you well in your further un
Page 9: 'misbehaviour', 'inappropriate beha
Page 13 and 14: It was argued on behalf of the Clai
Page 15 and 16: The principle in Han Chiang appears
Page 17 and 18: Third Issue: If the dismissal was w
Page 19 and 20: the relevant factors into considera
Page 21 and 22: Appeal had observed that in industr
Page 23 and 24: gainsaid that this is a very senior
Page 25 and 26: In Robert John Reeves v Southern Ba
Page 27 and 28: was only reasonable that the first

industrial court malaysia - Malaysian Legal and Tax Information Centre

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