Procedural fairness must be observed in employee performance evaluations, and failure to follow due process can render dismissals unlawful.

Introduction

[1] The Applicant filed an application for a judicial review application (Enclosure 12) under O 53 Rules of 2012 ( ROC ) to seek the following reliefs:

1.1 Satu perintah certiorari diberikan bagi membatalkan keputusan Mahkamah Perusahaan Malaysia melalui Award No. 3218 Tahun 2019 bertarikh 19 Disember 2019 yang diterima pada 3 Januari 2020;

1.2 Suatu perintah bahawa Pemohon telah diberhentikan secara salah oleh Responden Kedua secara konstruktif;

1.3 Secara alternatif, suatu Perintah mandamus terhadap Mahkamah Perusahaan Malaysia untuk mendengar semula No. Kes: 25(3)/4-1313/18 oleh Pengerusi Mahkamah Perusahaan yang lain;

1.4 Responden membayar kos, dan kos akibat prosiding-prosiding ini; dan

1.5 Apa-apa relif lanjut yang difikirkan patut oleh Mahkamah yang Mulia ini.

[2] In gist, the Applicant filed an application for a judicial review for a certiorari to challenge the decision of the Industrial Court Award No: 3218 of 2019 dated 19 December 2019. The Industrial Court decided in favor of the 2nd Respondent (the Company) and ruled that the Applicant was dismissed with just cause and excuse.

[3] After the hearing, I allowed the Applicant's judicial review application (Enclosure 12). I will now set out the grounds for my decision.

Background Facts

[4] The narration of the background facts of this case can be found in the learned Chairman of the Industrial Court Award and reproduced below with suitable modifications.

[5] The Applicant was employed by the Company as a Sales Engineer vide a Letter of Employment dated 7 September 1994 and was promoted to the position of General Manager (GM) of the Company via letter dated 8 September 2009 and the Applicant remained in the position until his termination on 31 July 2017.

[6] The Applicant has been in the employment of the Company for a period of 22 years 9 months prior to his termination and his last drawn salary was RM21,070.00 per month together with the allowance and other benefits.

[7] The Applicant claims to have a clean record with the Company throughout his tenure of service.

[8] In the year 2013, the oil price globally went down. Many Oil & Gas Companies worldwide had to reduce their capital cost. As a result, the Company also suffered low turnover and losses.

[9] The Company upon review of the Applicant's performances for the year 2014/2015 and 2015/2016 gave the Applicant rating of '2' in his KPI for 2 consecutive years. Based on the Company's procedures. Calibration was conducted by the Company. Based on it, the Managing Director of the Company who is also the immediate superior of the Applicant maintains the Applicant's rating of '2'.

[10] The Applicant was then placed under a Performance Improvement Plan (PIP) on the ground that the Applicant had achieved the rating of 2 (Need Improvement) for two consecutive years.

[11] Under the 1st PIP, the Applicant was given two targets to achieve and the Applicant did achieve both targets on 10 November 2016. The Company then proceeded to place the Applicant on the 2nd PIP by setting two new targets to be achieved by the Applicant.

[12] In respect of the two targets set for the 2nd PIP, the Applicant managed to achieve the 1st. However, the 2nd target that was set by the Company was unable to be met by the Applicant. The Applicant claims to have been given a short period of time to achieve the target and having regard to the then prevailing depressed market condition that the Company was operating.

[13] During the 2nd PIP review on 20 March 2017, the Company proceeded to set new targets to be achieved by the Applicant by extending the PIP to a further two months and placing the Applicant under the 3rd PIP. The Applicant managed to achieve the targets set by securing the agreement in principle with the client (SDPS) to contra off the back charges. The Company eventually managed to contra off the back charges and obtained the variation order at the end of the completion of the Pagoh project ie around August 2018 aft