As stated in the title, the new Industrial Relation (Amendment) Act 2020 allows the Industrial Court to continue with the hearing of a case and to award backwages and compensation in lieu of reinstatement to the next-of-kin notwithstanding the death of the workman who made the representation.
The relevant sections are as follows:-
Section 29 (ea) Industrial Relation (Amendment) Act 2020
Power of the Court
29. The Court may, in any proceedings before it-
…
(ea) continue to conduct its proceedings notwithstanding the death of the workman who made the representations under subsection 20(1).
Section 30 (6B) Industrial Relation (Amendment) Act 2020
Awards
(6B) Notwithstanding subsection (6), the Court, in making an award in relation to a reference under subsection 20(3) in respect of a deceased workman, shall have the power to award backwages or compensation in lieu of reinstatement or both to the next-of-kin of the deceased workman.
Generally, in a representation on dismissal case under Section 20 (1) IRA 1967, the workman would be the main witness to his case. To continue the proceeding in absence of the workman would mean that the trial is proceeding without the evidence of the workman. As these were the newly implemented amendments, the practicality of these amendments remains to be seen.
However, it must be noted that it is a settled principle in Malaysia labour law that it is the employer who bears the burden of proof to the court that the dismissal was with just cause or excuse.
As stated in the Federal Court in the case of Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 2 MLJ 129 as follow:
“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 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. ”
Further, the Industrial Court case of Ireka Construction Berhad v Chantiravathan Subramaniam James [1995] 2 ILR 11 stated as follow:
“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.”
Based on the above, despite the current amendments, whether the case is conducted with or without the evidence of the workman, the employer is required to proof that the termination was with just cause and excuse.
In absence of the evidence of the workman, the Court can only rely on the employer’s evidence to determine whether the termination was with just cause and excuse. If the employer unable to produce evidence to proof that the termination was with just cause and excuse, then the inevitable conclusion must be that the termination was without just cause or excuse.
As such, the employer should ensure that the termination and disciplinary procedure carried out in compliance with the settled rules and regulations and be recorded in writing. If disputes arise, the employer may rely on the documents to show that the employer exercised the termination fairly and in compliance with all the relevant procedures.
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