IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO: 4(6)/4-386/23

BETWEEN

ANG CHIN GAIK

AND

WV SERVICES MALAYSIA SDN BHD

AWARD NO: 309 OF 2025

BEFORE : Y.A. TUAN AUGUSTINE ANTHONY

VENUE : Industrial Court of Malaysia, Kuala

DATE OF REFERENCE : 27.01.2023.

DATE OF RECEIPT OF
REFERENCE : 02.02.2023.

DATES OF MENTION : 01.03.2023, 07.04.2023, 10.05.2023,

DATE OF HEARING : 25.11.2024.

REPRESENTATION : Mr. Muhendaran Suppiah and Miss

: Company / Company’s Representative/s

This is a reference dated 27.01.2023 by the Director General of the

Department of Industrial Relations, Ministry of Human Resources

pursuant to section 20(3) of the Industrial Relations Act 1967 (“The Act”)

arising out of the dismissal of ANG CHIN GAIK (Claimant) by WV

SERVICES MALAYSIA SDN BHD (Company) on the 18.06.2022.

AWARD

[1] Pursuant to the directions of this Court, the Claimant in this matter

filed his written submissions dated 06.01.2025. The Company failed to

attend the full hearing/trial of this matter and also failed to file any written

submissions in this matter.

[2] This Court considered all the notes of proceedings in this matter,

documents and cause papers in handing down this Award namely:

(i) The Claimant’s Statement of Case dated 15.03.2023;

(ii) The Company’s Statement in Reply dated 22.11.2023;

(iii) The Claimant’s Rejoinder dated 28.11.2023;

2
(iv) The Claimant’s Bundle of Documents – CLB1, CLB2, CLB3 &

CLB4;

(v) The Claimant’s Witness Statement – CLW – WS (Mr. Ang Chin

Gaik);

(vi) Though the Company has filed Bundles of Documents and

Witness Statements, the same were disregarded by this Court due

to the absence of the Company/Company’s witness/s on the

hearing date of this matter.

INTRODUCTION

[3] The dispute before this Court relates to the claim by Ang Chin Gaik

(“Claimant”) that he was dismissed from his employment without just

cause or excuse by WV Services Malaysia Sdn. Bhd. (“the Company”)

on the 18.06.2022.

[4] The Claimant first commenced employment with the Company on

the 11.12.2015 as a Director of the Company. Additionally the Claimant

was also offered by the Company to serve as the General Manager of

the Company effective 01.05.2016. The Claimant’s position as the

Director and General Manager of the Company was terminated on the

04.12.2020 though the Claimant continued to remain as the Director of

3
the Company without any pay. Then effective 15.11.2021 the Claimant

was again offered the position as the General Manager of the Company.

The Claimant’s employment as the Director/General Manager came with

a salary and his last drawn salary was RM68,836.11 per month together

with a fixed monthly allowance of RM200.00 per month. The Company

then terminated the Claimant’s employment on the 18.06.2022 without

giving any reason for the said termination. In view of the Company’s

conduct in terminating the Claimant’s employment, the Claimant now

states that the Company had dismissed him without just cause or excuse

and prays that he be reinstated to his former position in the Company

without any loss of wages and other benefits.

[5] The Claimant gave evidence under oath and remained the sole

witness for his case. The Company having filed its Statement in Reply ,

Documents and Witness Statement failed to attend the hearing of this

matter despite being fully aware of the dates of hearing fixed by this

Court. It is noteworthy to state here that this Court had on the

13.03.2024 fixed the hearing of this matter falling on the 25.11.2024 and

26.11.2024 with the agreement of both the learned counsel of Claimant

and the Company. The Company’s solicitors then discharged

themselves from further acting for the Company by a letter dated

06.08.2024. Thereafter the Company showed no interest in appointing

4
any new solicitor to act for the Company or to appear with the

Company’s representative in Court, even on the hearing date fixed on

the 25.11.2024.

THE COMPANY'S CASE

[6] The Company was absent on the hearing date thus there is nothing

before this Court in support of the Company's case. The Company's

Statement in Reply dated 22.11.2023 and the Company’s documents

are disregarded by this Court in arriving at its decision.

THE CLAIMANT’S CASE

[7] The Claimant’s case can be summarised as follows:-

i. The Claimant commenced employment with the Company on

the 11.12.2015 as a Director of the Company;

ii. Additionally the Claimant was also offered by the Company

to serve as the General Manager of the Company effective

01.05.2016;

5
iii. The Claimant was initially paid a salary of RM58,357.00 per

month for his role as the Director and General Manager of

the Company;

iv. The Claimant’s position as the Director and General

Manager of the Company was then terminated on the

04.12.2020;

v. However the Claimant continued to remain as the Director of

the Company without any pay;

vi. Effective 15.11.2021 the Claimant was again offered the

position as the General Manager of the Company whilst still

holding the position as the Director of the Company;

vii. The Claimant’s employment as the Director/General

Manager came with a salary and the his last drawn salary

was RM68,836.11 together with a fixed monthly allowance of

RM200.00;

6
viii. The Company then terminated the Claimant’s employment

on the 18.06.2022 without giving any reason for the said

termination;

ix. In view of the Company’s conduct in terminating the

Claimant’s employment, the Claimant now states that the

Company had dismissed him without just cause or excuse;

x. The Claimant states that the Company in dismissing him

from his employment with the Company had breached the

principles of natural justice, had acted against fair labour

practice and had victimised the Claimant;

xi. The Claimant states that the Company violated his legitimate

expectation to be an employee of the Company until his age

of retirement;

xii. The Claimant now prays that he be reinstated to his former

position in the Company without any loss of wages and other

benefits.

7
THE LAW

Role and function of the Industrial Court

[8] The role of the Industrial Court under section 20 of the Industrial

Relations Act 1967 is succinctly explained in the case Milan Auto Sdn.

Bhd. v. Wong Seh Yen [1995] 4 CLJ 449. His lordship Justice Mohd

Azmi bin Kamaruddin FCJ delivering the judgment of the Federal Court

had the occasion to state the following:-

“As pointed out by this Court recently in Wong Yuen Hock v. Syarikat

Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ

344; [1995] 2 MLJ 753, the function of the Industrial Court in dismissal

cases on a reference under s. 20 is two-fold firstly, 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. Failure to determine these issues on the merits

would be a jurisdictional error ...”

[9] The above principle was further reiterated by the Court of Appeal

in the case of K A Sanduran Nehru Ratnam v. I-Berhad [2007] 1 CLJ

347 where his lordship Justice Mohd Ghazali Yusoff, JCA outlined the

function of the Industrial Court:-

8
 “[21] The learned judge of the High Court held that the Industrial Court had

adopted and applied a wrong standard of proof in holding that the respondent

has failed to prove dishonest intention and further stating that the respondent

has not been able to discharge their evidential burden in failing to prove every

element of the charge. He went on to say that the function of the Industrial

Court is best described by the Federal Court in Wong Yuen Hock v. Syarikat

Hong Leong Assurance Sdn Bhdand Another Appeal [1995] 3 CLJ 344 where

in delivering the judgment of the court Mohd Azmi FCJ said (at p. 352):

On the authorities, we were of the view that the main and only function of the

Industrial Court in dealing with a reference under s. 20 of the Act (unless

otherwise lawfully provided by the terms of the reference), is to determine

whether the misconduct or irregularities complained of by the management as

the grounds of dismissal were in fact committed by the workman, and if so,

whether such grounds constitute just cause or excuse for the dismissal”

[10] It will not be complete this far if this Court fails to make reference

to the decision of the Federal Court in the case of Goon Kwee Phoy v.

J & P Coats (M) Bhd [1981] 1 LNS 30 where His Lordship Raja Azlan

Shah, CJ (Malaya) (as HRH then was) opined:

“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 that excuse or reason has or has not been

9
 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.”

Burden Of Proof

[11] Whenever a Company has caused the dismissal of the workman, it

is then incumbent on part of the Company to discharge the burden of

proof that the dismissal was with just cause or excuse. This Court will

now refer to the case of Ireka Construction Berhad v. Chantiravathan

a/l Subramaniam James [1995] 2 ILR 11 in which case it was stated

that:-

“It is a basic principle of industrial jurisprudence that in a dismissal case

the employer must produce convincing evidence that the workman

committed the offence or offences the workman is alleged to have

committed for which he has been dismissed. 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, negligence or

poor performance based on the facts of the case.

10
Standard Of Proof

[12] In the case of Telekom Malaysia Kawasan Utara v. Krishnan

Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 the Court of Appeal had

laid down the principle that the standard of proof that is required to prove

a case in the Industrial Court is one that is on the balance of probabilities

wherein his lordship Justice Abdul Hamid Mohamad, JCA opined:-

“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. On the other hand, we see that the courts and learned

authors have used such terms as "solid and sensible grounds", "sufficient to

measure up to a preponderance of the evidence," "whether a case... has been

made out", "on the balance of probabilities" and "evidence of probative value".

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 degree of probability required is

proportionate to the nature of gravity of the issue. 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.”

11
THE PROCEEDINGS BEFORE THIS COURT

[13] This Court will now deal with the proceedings before this Court and

in so doing, will first remind itself of the provision of Section 29 of the

Industrial Relations Act 1967 (“The Act”) which states:

"The Court may, in any proceedings before it-

(g) generally direct and do all such things as are necessary or

expedient for the expeditious determination of the matter before it."

[14] This Court is duty bound to do all things necessary for the

expeditious determination of the matter before it and in so doing expect

the parties in this matter to comply with all directions given in order to

ensure that this matter can be speedily and promptly disposed off.

[15] On the 13.03.2024, this Court in the presence of both the counsel

for the Claimant and the Company proceeded to fix the trial/hearing

dates of this matter on the 25 & 26 of November 2024 after having

received confirmation from both parties that the dates of hearing are

suitable hearing dates for both parties.

12
[16] On the 06.08.2024, the Company’s solicitors discharged

themselves from further acting for the Company. Thereafter the

Company and/or its representative failed to appear before this Court,

first on the next mention date set by this Court on the 28.08.2024 and on

the hearing date of 25.11.2024. The evidence before this Court clearly

shows that the Company was fully aware of the hearing dates fixed by

this Court on the 25.11.2024 and 26.11.2024 and despite such

knowledge, failed to attend the proceedings before this Court.

[17] This Court having satisfied itself that the Company had not

appeared before this Court despite being informed of the hearing dates

to challenge the Claimant's allegation of dismissal without just cause or

excuse, proceeded with the trial of this matter by calling the Claimant to

state his case in order to ensure the expeditious determination of the

matter before it as this Court is empowered to do so by the Industrial

Court Rules 1967 which states:-

Rule 8 of the Industrial Court Rules 1967 states that:-

"(1) Upon a case being brought before the Court, the Secretary shall

immediately serve notice in Form F of the place, date and time for

mention of the case before the President.

(2) Notwithstanding the absence of any party at the place, date and

time prescribed by paragraph (1), the President may fix dates for
13
 hearing of the case and no application for any alteration of the dates

will be entertained except under very exceptional circumstances.

(3) Upon the dates for hearing being fixed, the Secretary shall serve

notice thereof in Form G."

[18] This Court is of the view that in giving effect to the statutory

provisions of “The Act” and in the interest of justice, this Court ought to

proceed to hear this matter even in the absence of the Company or its

representative especially when the Claimant and the Claimant’s counsel

were ready to proceed with the hearing. “The Act” empowers this Court

to hear and determine the matter in the absence of any party to the

proceedings who has been served with a notice or summons to appear.

Section 29 of “The Act” states:-

"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."

14
EVALUATION OF EVIDENCE AND THE FINDINGS OF THIS COURT

[19] In evaluating and making a finding in this case, this Court is of the

view that the intentional absence of the Company and or its

representatives in this Court on the hearing date has left this Court with

the only option of hearing the Claimant’s version without any challenge

from the Company and the general rule on evidence taking is therefore

set in motion where and when the evidence of one party is

unchallenged by the opposing party then the conclusion that can be

made is that the unchallenged evidence are deemed admitted. In any

event there is no evidence before this Court from the Company thus

leaving the Claimant’s evidence completely unchallenged.

[20] Though this matter was fixed for hearing for 2 days being the

25.11.2024 and 26.11.2024, the hearing was promptly completed on the

25.11.2024 and the Claimant closed his case on the same day. The

Court then gave directions for the Claimant to file his written submission

which the Claimant duly complied.

[21] The Claimant in support of his statement of case filed a witness

statement thus giving evidence of the acts of the Company in engaging

in the dismissal of the Claimant without just cause or excuse. The

statement of case and the evidence of the Claimant show that the

15
Claimant was dismissed by the Company on the 18.06.2022. There is no

dispute on this termination of the Claimant from his employment with the

Company. The letter of termination dated 19.05.2022 does not give any

reasons for the termination of the Claimant from his employment from

the Company. The Claimant in is his evidence in this Court confirmed

that the Company offered no reasons for his dismissal from employment

with the Company.

[22] Upon perusal of the termination letter issued to the Claimant by the

Company, this Court must come to an irresistible conclusion that the

termination of the Claimant from his employment with the Company was

nothing more but a termination simpliciter which has no place in

Malaysia as such termination of an employee without just cause or

excuse is thus arrested by the provision of “The Act” particularly Section

20 of “The Act” wherein for the Company to dismiss an employee, under

“The Act” the Company bears the burden of proving that such dismissal

was made with just cause or excuse (Please see Kong Mei Fei v

Daehan Rehabilitation Services Sdn Bhd [2021] 4 ILR 249 )

[23] This Court does not propose to venture into the reasons given by

the Company on the dismissal of the Claimant from his employment has

stated in the statement in reply which was also raised by the Claimant in

16
his submission quite simply because even if this Court considered that

pleaded reasons, there is simply no evidence before this Court to

support that excuse given by the Company. The burden of proof as to

whether the dismissal of the Claimant was with just cause or excuse

remains at all times with the Company which the Company was unable

to discharge in view of its “no show” in this Court on the date of the

hearing of this matter.

[24] Having considered the Claimant’s version as stated in the

“Claimant’s Case” above, the statement of case, the documents filed by

the Claimant and his evidence in this Court which remains unchallenged

at all times, this Court must come to the only conclusion that it can come

to and that is to find that the Company had failed to prove its case that

the dismissal of the Claimant from his employment with the Company

was with just cause or excuse.

[25] Pursuant to Section 30(5) of “The Act” and guided by the

principles of equity, good conscience and substantial merits of the case

without regard to technicalities and legal forms and after having

considered the totality of the facts of the case, the evidence adduced

and by reasons of the established principles of industrial relations and

disputes as stated above, this Court finds that the Company had failed to

17
prove on the balance of probabilities that the dismissal of the Claimant

from his employment with the Company was with just cause or excuse.

REMEDY

[26] This Court having ruled that the Claimant was dismissed without

just cause or excuse, will now consider the appropriate remedy for the

Claimant.

[27] According to the letter of appointment dated 11.12.2015 issued by

the Company, the Claimant commenced employment with the Company

on the 11.12.2015 as a salaried employee/director. Though this

appointment letter came with a probationary period of 3 months for the

Claimant, however this probationary period issue was superseded

wherein the Claimant became a permanent employee of the Company

by an addendum dated 11.05.2016 in which he was also made the

General Manager of the Company. Clause 4 of this addendum clearly

stipulates that the Claimant no longer need to serve any probationary

period. Thus for all intents and purposes the Claimant was a permanent

employee of the Company.

18
[28] However it was the Claimant’s own evidence that he was

terminated from his employment as a Director and General Manager of

the Company on the 04.12.2020. Based on the evidence before this

Court there is no dispute between the Claimant and the Company on

this first termination of the Claimant from his employment with the

Company.

[29] The dispute on the dismissal of the Claimant from the Company

emanates from the Claimant’s second and/or reappointment to the

position of Director/General Manager of the Company effective

15.11.2021 although the letter of appointment was only issued

subsequently and dated as 24.11.2021. The appointment letter contains

no provision for any probationary period for the Claimant. This Court

having analysed all the evidence and the past conduct of the parties

gleaned from the first appointment letter of the Claimant and when

considering the second and/or reappointment of the Claimant, is of the

view that the Claimant commenced employment again on the

15.11.2021 as a confirmed employee of the Company as this was the

intention of the parties at the time of contracting as evidenced from the

Company’s letter dated 24.11.2021.

19
[30] Based on the above this Court concludes that the Claimant was a

confirmed employee of the Company and the period of his

commencement of employment for the purposes of computation must

start from the 15.11.2021. The Claimant was dismissed from his

employment with the Company on the 18.06.2022. The evidence before

this Court thus shows that the Claimant has not served the Company for

a period of one full year of service for the purpose of any computation on

any compensation in lieu of reinstatement, in the event this Court orders

such compensation.

[31] 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 and other benefits.

[32] Considering the factual matrix of this case amongst other the

manner in which the Claimant was dismissed from his employment and

the Claimant’s lack of evidence of any meaningful purpose if the

reinstatement is ordered to his former position in the Company

especially when the Claimant is still a Director of the Company though

without the position of General Manager, it is this Court’s view that

20
reinstatement of the Claimant to his former position in the Company not

a suitable remedy in the circumstances of this case.

[33] As such the appropriate remedy in the circumstances of this case

must be compensation in lieu of reinstatement. However since the

Claimant‘s service with the Company falls short of the full one year of

service, in line with Practice Direction 3 of 2019 there will be no

compensation in lieu of reinstatement.

[34] The Claimant is entitled for back wages in line with Section 30(6A)

of “The Act” and the factors specified in the Second Schedule therein

which states:-

“1. In the event that backwages are to be given, such backwages

shall not exceed twenty-four months' backwages from the date of

dismissal based on the last-drawn salary of the person who has

been dismissed without just cause or excuse;”

[35] It is unchallenged evidence that the Claimant’s last drawn salary

was RM68,836.11 per month and he also enjoyed a fixed monthly

allowance of RM200.00.

21
[36] 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 times leading to the final order of this

Court.

[37] 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 [2001] 3 CLJ 541 where his lordship Justice Steve Shim CJ

(Sabah & Sarawak) in delivering the judgment of the Federal Court

opined:-

“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 by evidence or admitted, that the workman has been

gainfully employed elsewhere after his dismissal. Failure to do so

constitutes a jurisdictional error of law. Certiorari will therefore lie to rectify

it. Of course, taking into account of such employment after dismissal

does not necessarily mean that the Industrial Court has to conduct a

mathematical exercise in deduction. What is important is that the

Industrial Court, in the exercise of its discretion in 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

22
 elsewhere after his dismissal. This discretion is in the nature of a decision-

making process”.

(emphasis is this Court’s)

[38] This Court must take into account the post dismissal earnings of

the Claimant in order to make an appropriate deduction from the back

wages to be awarded. The Claimant has given evidence that after the

dismissal from employment with the Company, the Claimant was

unemployed for 11 months. The Claimant was then employed by

another Company from 15.05.2023 until 12.11.2023 for a salary of

RM32,500.00 per month which is approximately half the last drawn

salary of the Claimant with the Company. This Court will take into

account the Claimant’s post dismissal earnings when awarding the

Claimant back wages.

[39] Having considered all the facts of case on the appropriate sum to

be awarded and after taking into account that the Claimant’s post

dismissal earning of RM32,500.00 per month from the period of mid May

2023 until mid November 2023, this Court hereby orders that the

Claimant be paid back wages of the last drawn salary of RM68,836.11

23
together with the fixed allowance of RM200.00 per month for 20 months.

This will amount to:-

(i) Backwages ordered:

RM69,036.11 x 20 months = RM1,380,722.20

[40] This Court orders no compensation in lieu of reinstatement as the

Claimant is not able show a minimum of one year service for this Court

to consider compensation in lieu of reinstatement.

[41] In ordering that the Company pays the Claimant 20 months

backwages and not the maximum of 24 months provided for by “The

Act”, this Court has taken into account the Claimant’s post dismissal

income and the statutory mandate in Section 30(5), 30(6) and 30(6A) of

“The Act” in order to achieve a conscionable and equitable relief as the

Company was gracious enough to exempt the Claimant from any

probationary period for the new employment which is the usual industry

standard regardless of all the previous experience of an employee. The

Claimant was fortunate that the Company considered him a permanent

employee and not a probationer in his fresh employment.

24
[42] As such the amount of backwages ordered by this Court to the

Claimant is RM1,380,722.20

FINAL ORDER OF THIS COURT

[43] It is this Court’s order that the Company pays the Claimant a sum

of Ringgit Malaysia One Million Three Hundred Eighty Thousand

Seven Hundred Twenty Two and Cents Twenty

(RM1,380,722.20) only less statutory deduction (if any) within 30 days

from the date of this Award.

HANDED DOWN AND DATED THIS 03rd DAY OF MARCH 2025

-Signed-

(AUGUSTINE ANTHONY)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

25