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Case Update: Onus to rebut claim of not being gainfully employed after dismissal placed on former employer

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31 December 2021

EMPLOYMENT LAW
Industrial relations – Whether gainfully employed post-dismissal – Oral testimony of being unemployed under oath is sufficient – Employer to lead evidence in rebuttal – Legal and evidential burden of proof of whether applicant was gainfully employed post-dismissal

Savithri a/p Vello v Eversendai Constructions (M) Sdn. Bhd. & Anor
Judicial Review Application No.:AA-25-18-09/2020 | High Court
- see the grounds of judgment here

Facts Savithri a/p Vello (“Applicant”) succeeded in her claim at the Industrial Court that she was constructively dismissed by Eversendai Constructions (M) Sdn. Bhd. (“1st Respondent”) without just cause and excuse. The Industrial Court (“2nd Respondent”) did not order that she be reinstated, but instead for the Applicant to be paid backwages from the date of dismissal to the date of the award together with compensation in lieu of reinstatement. Further, the Industrial Court ordered that the backwages payable to the Applicant be deducted by 70% on the reason that the Applicant had failed to prove that she was not gainfully employed after the termination of her services. The Applicant then applied for leave to apply for a judicial review and to seek an order of certiorari to quash the part of the Industrial Court Award which had ordered the compensation to be scaled down by 70% together with the deduction for the payment made under the Mutual Separation Scheme. Leave was granted hence this judicial review.

Issue Whether the burden is laid upon the workman or the former employer to prove that the workman was gainfully employed after his dismissal.

Held In granting the relief sought, the learned Judicial Commissioner, Su Tiang Joo, held that the learned Industrial Court Chairman committed an error of law by failing to hold that since the Applicant testified that she was unemployed since her termination, the evidential burden of proof to rebut this shifted to the First Respondent to prove that she was in fact gainfully employed. Unless there is evidence led in rebuttal by the First Respondent, the learned Industrial Court Chairman ought to have accepted the testimony of the Applicant. This is because sections 59 and 134 of the Evidence Act 1950 expressly provide that all facts, except the contents of documents, may be proved by oral evidence and no particular number of witnesses shall in any case be required for the proof of any fact. The requirement to consider post-dismissal earnings is specifically provided in the Second Schedule of the Industrial Relations Act 1967 and in particular subsection 20(3) read together with paragraph 3 of the Second Schedule.

Conclusively, the learned Judicial Commissioner held that the legal burden to prove that the workman was not gainfully employed lay on the workman as this fact would be especially within her knowledge. However once the workman, the Applicant, has testified that she is not gainfully employed post-dismissal, the evidential burden to prove otherwise shifts to the First Respondent. The High Court granted the relief and quashed the part of the Industrial Court Award granting the 70% deduction for compensation for backwages.

Zul Rafique & Partners
{31 December 2021}

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