Principle

1.  

   Section 114(g)Evidence Act 1950 – The Court may presume that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. In other words, the Court may make an adverse inference against the party.

2. Munusamy v PP [1987] 1 MLJ 492 (SC) – The Court may draw adverse inference if it can be shown that:-

• The evidence is material;
• Withholding of suppression of evidence was deliberate, not just mere failure.

Application in Industrial Court Cases

3. Syarikat Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim [2015] 2 CLJ 1037 (FC)– The burden is on the Plaintiff to establish the existence of a legally enforceable settlement agreement between the parties. However, the Plaintiff failed to discharge that burden. The Federal Court held that the Plaintiff’s burden to prove is not absolved even if the Defendant called no witnesses and lead no evidence.

4. Lim Fang Xin and Australian Trade & Investment Commission [2025] ILRU 0285– The Claimant claimed for unfair dismissal against the Company. Facts shown that the Claimant was a very outstanding employee, where she was appraised for her performance, received bonuses and increased in her salary. Despite having gone through the performance improvement plan (PIP) twice and received ‘meeting expectations’ for both PIPs, 3 months after she was issued with a Notice of Intention to Terminate Employment and a Notice of Termination on the ground of underperformance. No warning letter was issue prior to the notices.

Industrial Court – The Court drew adverse inference under S114(g) of the EA 1950 as the Company failed to call the person who authorised the termination. That person is a mandatory requirement, and the excuse of him residing in Australia and unable to attend court in KL is not justified.

5. Ajit Singh Gurbachan Singh v. Hexagon Tower Sdn Bhd [2016] 1 ILR 75 – The Claimant claimed for unfair dismissal against the Company. After working for 1 year and a half, he was issued with a retrenchment letter and terminated from service, without prior warning.

Industrial Court – Failure of the Company to call Mr. James Hew was detrimental as he was the Executive Director who signed the letter of retrenchment. He is a material witness to justify the dismissal. The Court thus draws an adverse inference under S114(g) against the Company.

6. Abdul Rahman bin Wahidin v Universiti Tun Abdul Razak Sdn Bhd [2013] 1 ILJ 233– Claimant claimed constructive dismissal against the University. He was employed by the University as Project manager, then later transferred to the Business Division as a senior lecturer for 24 months (contract basis – 2 times extension). When the second contract expired, the Claimant tried to get permanent position. However, after three meetings with the University (including the president), the Claimant was offered continuous employment, but was advised to continue working while waiting for his contract. The Claimant claimed that the president of the University himself  asked him to continue as a senior lecturer. However later, the Claimant was only appointed as a course leader and part-time lecturer for a short semester.

Industrial Court – Claimant urged the Court to invoke adverse inference under 114(g) for failure of the company to bring the president. The Court held that the president is not a material witness for this case as the legal and evidential burden to prove a case of constructive dismissal lies upon the claimant. The university should not be subjected to adverse inference as there is no withholding of evidence as stipulated by the said section.

7. Yap Soo Hong v WRP Asia Pacific Sdn Bhd [2018] 4 ILJ 8 – The Claimant claimed constructive dismissal against the company. She was an account executive in the Company and later promoted to senior executive for canteen and hostel operations. The promotion came in after her husband resigned due to some issues with the company. Ever since her husband was resigned, she was blamed for many things and unreasonable rules were imposed such as her husband was not allowed to drop her near the office. This then caused her to write a letter to the Company that she ceased to work and alleged constructive dismissal against the Company. There were 3 other executives who have both experience and capable of carrying out the position that she was promoted, but instead purposely chose her. She had no experience with the job managing a canteen or a hostel.

Industrial Court – The Court drew adverse inference against the Company for failure to call relevant witnesses to testify. The Court drew adverse inference after the Court was satisfied that the Claimant has succeeded in showing that she was constructively dismissed – ‘It is this court’s finding, that the claimant has succeeded in showing she has been constructively dismissed. As such, it is for the company to show that she was indeed dismissed with just cause or excuse.’ The Court also found there was no just cause or excuse by the Company.