Professional Documents
Culture Documents
BETWEEN
AND
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REFERENCE:
AWARD
2. The Ministerial reference in this case required the Court to hear and
determine the Claimant’s complaint of dismissal by the Company on
01.08.2013.
BRIEF FACTS
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4. The Claimant’s probation was extended for another 3 months with
effect from 01.05.2013 to 31.07.2013 vide letter dated 29.04.2013
[COB-1 page 17 - First Probation Extension].
7. The Company on the other hand contended that the Claimant was
not confirmed due to her unsatisfactory performance and also that the
Claimant is not suitable for the position with the Company.
COMPANY’S CASE
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9. The Claimant’s probation period of 6 months commenced on
01.11.2012. Vide letter dated 29.04.2013, the Company then extended the
period of probation of the Claimant for another 3 months from 01.05.2013
to 31.07.2013 on the grounds that the Claimant did not achieved her sales
performance especially to explore and secure new business opportunities
and that the Claimant also did not demonstrate the ability to meet the job
expectations. [COB-1 page 17 - First Probation Extension]
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CLAIMANT ’S CASE
14. The Claimant avers that she was never told of any sales target to be
achieved upon her appointment as Assistant Business Manager neither did
anyone raised the issue of any sales to be achieved during her
probationary period.
15. The Claimant avers that as she was about to complete her
probationary service, the Company, without any prior notice, extended her
probation on 29.04.2013 for another 3 months with effect from 01.05.2013
on the grounds that she did not achieved her sales on exploring and
securing new business opportunities and also that she have not
demonstrated her ability as the Assistant Business Manager.
16. The Claimant contended that her Head of Department carried out
Performance Review and Development and gave a positive report because
her overall performance evaluation was more than satisfactory.
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17. The Claimant further avers that on 13.05.2013, the Company
maliciously issued a show cause letter to the Claimant accusing the
Claimant of having gone for lunch early and returned late to office on
09.05.2013. [CLB-1 page 13 - show cause letter]
18. The Claimant also avers that despite of a positive satisfactory report
on her overall performance given by her superior, the company issued a
warning letter dated 28.06.2013 to the Claimant alleging her being a non-
performer. [COB-1 page 28 - warning letter]
19. The Claimant further avers that the Company went on issuing on her
another warning letter dated 17.07.2013 alleging her for being late for the
company training sessions. [COB-1 page 38 - Warning letter - Late For
Training Without Prior Intimation]
20. The Claimant contents that the Company was maliciously and
extremely prejudice in dismissing her vide letter dated 24.07.2013 and
therefore her summary dismissal was unjust and unlawful.
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“When the Industrial Court is dealing with a reference under section 20,
the first thing that the Court will have to do is to ask itself a question
whether there was a dismissal, and if so, whether it was with or without
just cause or excuse.”
22. It is trite law that the Company bears the burden to prove that the
Claimant had committed the alleged misconduct and that the misconduct
warrants the Claimant's dismissal. In IREKA CONSTRUCTION BERHAD V
CHANTIRAVATHAN SUBRAMANIAM JAMES [1995] 2 ILR 11 (Award
No. 245 of 1995) it was stated as follows:
23. The Company needs only to prove misconduct justifying the dismissal
or termination on a balance of probabilities (see TELEKOM MALAYSIA
KAWASAN UTARA V KRISHNAN KUTTY A/L SANGUNI NAIR & ANOR
[2002] 3 CLJ 314.
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25. Since the Claimant is a probationer, it must be stated at the outset
that it is an entrenched rule of industrial jurisprudence that a probationer
has no substantive right of tenure to hold the position nor does he hold a
lien upon the post beyond the agreed contractual probationary period. In
the case of EQUATORIAL TIMBER MOULDING SDN. BHD. KUCHING V.
JOHN MICHAEL CROSSKEY, KUCHING [1986] 2 ILR 1666 (Award No.
387 of 1986) where the Industrial Court stated the principles as
follows:
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26. In the Court of Appeal's case of KHALIAH ABBAS V. PESAKA
CAPITAL CORPORATION SDN BHD [1997] 3 CLJ 827, it was stated that
an employee on probation enjoys the same rights as a permanent or
confirmed employee and his services cannot be terminated without just
cause or excuse. His Lordship Shaik Daud Ismail JCA at page 831 said as
follows:
“It is our view that an employee on probation enjoys the same right as a
permanent or confirmed employee and his or her services cannot be
terminated without just cause or excuse. The requirement of bona fide is
essential in the dismissal of an employee on probation but if the dismissal
or termination is found to be a colourable exercise of the power to dismiss
or as a result of discrimination or unfair labour practice, the Industrial
Court has the jurisdiction to interfere and to set aside such dismissal.”
“However Khaliah’s case does not expound the substantive law pertaining
to a probationer but relates to the specific question that if a probationer is to
be terminated, it should be within the general purview of s. 20(3) of the Act
in that it should not be without just cause and excuse. Nevertheless, this
court must be mindful that there is an intrinsic and material distinction
between employees under probation and confirmed permanent
employees.”. In the case of VIKAY TECHNOLOGY SDN. BHD. V. ANG
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ENG SEW [1993] 1 ILR 90 at p. 95 the learned chairman referred to a
passage in Malhotra's book "The Law of Industrial Disputes" (11th Edn.[sic]
at p. 224) which reads as follows:
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employer. Failure to do so would render the probationer
liable to be dismissed, save that such a decision must not be
capricious or arbitrary.".
30. The Court therefore finds that the Claimant’s averment in her
Statement Of Case that she was never told of any sales target to be
achieved upon her appointment as Assistant Business Manager and that
neither did anyone raised the issue of any sales to be achieved during her
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probationary period is just a mere assertions of the Claimant trying to plead
ignorance of what was expected from her by the Company in relation to
the sales target that she have to achieve.
32. It is also to be noted that the Claimant agreed and confirmed during
cross examination by counsel for the Company that her immediate superior
one Ms. Yan Leong and the Claimant had had a meeting to discuss the
content of the Performance Evaluation No.1 which included the Sales
Target as stated in Part II Items 4 & 5 and Part III Items 4 & 5 of the
Performance Evaluation No.1:
Claimant: Yes.
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33. The Performance Evaluation No.1 is the documentary evidence to
show that the sales targets were expressly mentioned in her performance
evaluation forms too. [COB-1 page 13]
34. Apart from just a mere assertions by the Claimant, there was no other
evidence to support that the Claimant had no knowledge about the
requirement to achieve sales targets in order to be confirmed on her job.
35. From the evidence adduced, the Claimant also did not at any point of
time during her probation period objected nor seek any clarification from
the Company or anyone about her sales targets when the Company
extended her probationary period for another 3 months by giving one of the
reason for the extension was that she did not achieved her sales targets
set by the Company.
37. The Claimant could have called her immediate superior the said
Ms. Yan Leong to confirm that she gave the Claimant positive evaluation
for her confirmation on the post and support Claimant’s allegation that
Company was mala fide motivated for not confirming the Claimant.
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38. The Claimant did not called the said Ms. Yan Leong since the said
Ms. Yan Leong too had left the Company. However during cross-
examination, the Claimant was asked if she is still in contact with Ms. Yan
Leong, to which she answered, “Yes, she is my immediate supervisor in the
new Company, KPMG Management and Risk Consulting Sdn. Bhd,
where I am working in now.”
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40. In the present case, despite being given the opportunities to improve
her performance and change her work attitude, evidence was shown in
Court that the Claimant still failed to achieve the sales targets set by the
Company and also failed to demonstrate her suitability of holding the
position as expected by the Company. The Company was completely
dissatisfied with the Claimant’s work attitude and dismissed the Claimant
41. The Company being dissatisfied with the Claimant’s work attitude the
Company had to issue a warning letter dated 28.06.2013 to the Claimant
requiring her to improve her work performance and to submit her daily
sales activities to her superior Ms. Yan Leong effective 01.07.2013.
[COB-1 page 28]
42. The Claimant was also during her probationary period issued with a
show cause letter dated 13.05.2013 by the Company of having gone for
lunch early and returned late to office on 09.05.2013. [CLB-1 page 43]
43. It was also evidence adduced in the court and was not disputed by
the Claimant that while still in the extended period of probation, the
Claimant was issued with a warning letter by the Company dated
28.06.2013 for not performing, and followed by a Disciplinary Letter via e-
mail dated 17.07.2013 to the Claimant asking for an explanation for being
late for the Company training sessions.
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44. The Claimant contends that her dismissal was unfair and was not
bona fide. The Claimant claimed that the Company when decided not to
confirm her did so without justification and was tainted by mala fide
intentions. The Claimant however did not adduce any evidence on the
alleged mala fide actions of the Company for not confirming her and also
any evidence to suggest that the Company was not fair when it conducted
the assessment on her.
45. It was evident to the Court that the Company had taken all the
necessary steps and had followed the process and procedures stipulated in
assessing the Claimant during the probation period by conducting
Performance Review and Development evaluation during her probationary
period.
46. The Court is of the view that the Company could had terminated the
Claimant’s contract at the end of her 6 month probationary period but the
Company did not do so. The Claimant had indeed been given a fair
opportunity to prove herself and measure up to the Company's
expectations, but she failed to avail herself of the opportunity. The
probation period had been extended but the Claimant failed to show
improvement of her performance up to the expectation of the Company.
47. Beside not being able to achieve the sales targets set by the
Company, the Claimant also failed in demonstrating her suitability in
relation to the job she was employed for by the Company. The issuance of
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show cause and warning letters against her during her extended probation
period reflected her lack of discipline and fitness for the post.
48. The Claimant does not possessed the right skill, competence, attitude
and suitability which will entitle her to transcend from being an employee on
probation to that of a confirmed permanent employee.
49. The Court is satisfied that the termination by the Company was a
bone fide exercise of the power conferred by the contract. Therefore the
Company is entitled to remove the Claimant since the Claimant failed to
measure up to the Company’s expectation.
50. In the case of SITT TATT BHD V. ONG CHEE MENG [2004] 2 ILR
388 at page 393 when the learned Chairman stated:
“In my view the company was fully entitled to terminate the claimant’s
service if upon their evaluation, the claimant was found to have been unable
to perform his job functions satisfactorily. How he is to be assessed and the
yardstick to be used to gauge his performance is best left to the company’s
prerogative and judgment so long as it is not tainted by mala fide intentions.
It could well be based on performance per se or upon a combination of other
variables and values such as suitability, aptitude, conduct, behaviour,
mannerism and so forth. Its categories are never exhaustive. After all it is
well settled that the company is entitled to organize its business in the
manner it considers best. It is the duty of the claimant to measure up to the
company’s expectation. All the more so as the claimant was still under
probation.”
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51. Premised upon the findings of this Court and having regards to the
evidence in its totality, the Court is of the view that the Company has
proved on a balance of probability that the Claimants' termination was
justified and it was carried out in good faith and in accordance to fair labour
practice.
52. The also Court finds that the Company has proved on a balance of
probabilities that the Claimant had not been able to perform and she was
also not suitable to be employed as a permanent employee of the
Company.
53. Based on equity and good conscience and the substantial merit of the
case without regard to technicality and legal form legal form under section
30 (5) of the Act, the Court finds that the Claimants' termination was carried
out with just cause and excuse. The Claimant’s claim is hereby dismissed.
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