industrial court malaysia - Malaysian Legal and Tax Information Centre

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.
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