Industrial Court chairman M Eswary said the company’s failure to secure the testimony of Kerk Han Meng—the director who terminated the services of claimant Sim Chin Hu—was fatal to its case.

“This court was only left with the evidence of other witnesses of the company who were not personally involved in the claimant’s dismissal,” she said in a 59-page award handed down earlier this month.

Eswary said Kerk’s absence had deprived the claimant of the opportunity to cross-examine him over the charges brought by the company against him.

It also prevented the claimant from seeking answers as to why he was dismissed one day after replying to a show-cause notice dated Nov 24, 2019, she said.

As a result, Eswary drew an adverse inference that had Kerk testified, his evidence would have been detrimental to the company’s case.

She awarded the claimant RM2,226,000 in back wages and compensation.

The claimant, who drew a salary of RM70,000 a month, was awarded 24 months’ back wages (subject to a 30% deduction for post-dismissal earnings), and 15 months’ salary as compensation in lieu of reinstatement.

Kerk and the claimant had formed the company as equal partners in 2001 to export and import polymers and textile products.

According to the claimant, they had both agreed to be involved in the company’s management and the development of its business.

In January 2017, they agreed to admit Eric Kua as a partner.

The claimant said that Kerk, Kua and one Ainsley Lee later attempted to portray him as solely responsible for losses the company suffered in South Africa with a view to ousting him from management.

The company filed a civil suit against the claimant for allegedly misappropriating RM38 million, making secret profits and other losses suffered. The suit was premised on the same charges stated in the show-cause letter issued to the claimant.

However, on Aug 19 last year, the High Court dismissed the company’s suit.

Eswary found that the claimant had comprehensively explained in his reply to the show-cause notice and proven in court that the company’s management and staff were fully aware of the South African transactions. She also found that the transactions had Kerk’s approval.

“It was also established that at all material times, the claimant was the director in charge of handling most, if not all, international trading business and was authorised to proceed with such transactions,” said Eswary.

She found that the claimant had absolute discretion to decide what was best for the company.

In contrast, she said the company had failed to discharge the burden of proving the charges brought against the claimant to justify his dismissal.

“The irresistible conclusion to make is that the claimant’s dismissal is without just cause and excuse,” she said.

The claimant was represented by Brendan Navin Siva and Aida Haryani Salamon, while Max Yong and Dominic Foo appeared for the company.