In the matter of Ganesh Sahathevan v Sun Media, Industrial Court chairman Saufee Affandi, in deciding for Sun Media said that in a case
where only the Claimant could have knowledge of the matters on
which his sacking was based, it is the Claimant's duty to prove that
his sacking was not just or for proper reason.
In doing so Affandi overturned long established law which requires the employer to show just cause.
Affandi placed reliance on S.106 of the Evidence Act, 1950:
"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him"
The section had been raised in argument by counsel for Sun Media, S.Rutheran, who runs a VK Lingam satelite firm.
Although Sun Media Sdn Bhd had become a subsidiary of Nexnews Bhd at the time the decision had been handed down, the decision had direct consequences for VK Lingam and Vincent Tan. Both men, being shareholders of Sun Media who sold their stakes to Nexnews , are subject to conditions imposed by the Securities Commission on their sale which, amongst others, require that they indemnify Nexnews of any claims brought against Sun Media prior to the sale.
While the VK Lingam Royal Commission may not be bound by the normal rules of evidence, the application of Section 106 of the Evidence Act 1950 may have some bearing on any decision of the RC whether any legal action either civil or criminal ought to be commenced against VK Lingam and Vincent Tan as a consequence of the RC's findings.