Unfair Dismissal Claims Struck Off After the Claimants Failed to Attend: Focus Dynamics Drives and Bounce Entertainment

Case Background & Strategy

An unfair dismissal claim in the Industrial Court of Malaysia must be actively pursued: a claimant who fails to attend mentions or comply with the court’s directions risks having the case struck off. Our partner Khoo Ai Theng acted for the employers in two such cases, Khalil Abdullah Subramanion v Focus Dynamics Drives Sdn Bhd (Award No. 407 of 2021) and Norraziela Mohd Rasip v Bounce Entertainment Sdn Bhd (Award No. 350 of 2021), and both claims were struck off.

Case at a Glance

The Problem: Claims Left Unattended

Both cases began with a ministerial reference under section 20(3) of the Industrial Relations Act 1967 after the claimants complained that they had been dismissed in 2020. In the claim against Focus Dynamics Drives Sdn Bhd, the claimant failed to attend three mentions in January, February and March 2021, including virtual e-mentions, even though notices had been sent to his last known address and the court had tried to telephone him. He had also failed to file the documents the court had directed. In the claim against Bounce Entertainment Sdn Bhd, the claimant did not attend the e-mention in March 2021.

Our Strategy: Attend, Comply and Apply

We attended every mention for our clients and complied with the court’s directions, so that the only party not ready to proceed was the claimant. In the Bounce Entertainment case, when the claimant did not appear, we applied for the case to be struck off rather than leave our client facing a claim that was not being pursued.

The Industrial Court’s Decisions

In the Focus Dynamics Drives case, the court struck off the claim on 10 March 2021, noting the claimant’s repeated absences and his failure to file documents, and gave him 30 days to apply to reinstate it. In the Bounce Entertainment case, the court allowed our application and struck off the claim on 4 March 2021, with liberty to apply for reinstatement within 60 days.

The Law in Brief: Non-Attendance in the Industrial Court

Once a dismissal complaint is referred to the Industrial Court, the court manages the case through mentions and directions for the filing of pleadings, bundles of documents and witness statements. Where a claimant repeatedly fails to attend or to comply, the court may strike the case off. A struck-off case can usually be revived only if the claimant applies within the period the court allows.

Key Takeaways

• A claimant must actively pursue an Industrial Court claim; missing mentions can end the case.
• Employers should still attend every mention and comply with every direction.
• The court may strike off a claim when the claimant fails to attend or to file documents.
• Virtual e-mentions count; failing to log in is treated as failing to attend.
• A struck-off claim can usually be reinstated only within the period the court allows.

Frequently Asked Questions

Related reading: The legal process for an unfair dismissal claim; What unfair dismissal means in Malaysia.

Facing an unfair dismissal claim? Book a consultation with NZSK so we can review your documents and advise on your defence. Learn more about our employment law practice.

Messrs Ng, Zainurul, Seke & Khoo (NZSK) is a Malaysian law firm with offices in Mont Kiara, Kuala Lumpur and Puchong, Selangor. Partner Khoo Ai Theng, an Advocate & Solicitor of the High Court of Malaya since 2014, acts for employers and employees in Industrial Court and High Court employment disputes and is a co-author of Malaysian Employment & Industrial Relations Law.