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2022 MarsdenLR 2062
HIGH COURT MALAYA KUALA LUMPUR
RAVI MURUGAIAH – Appellant
Versus
VOLVO CAR MANUFACTURING MALAYSIA SDN BHD & ANOR – Respondent
[Judicial Review Application No: WA-25-132-03/2020]
An employer must provide employees with warnings and opportunities to improve performance before dismissal, following due process under labour laws.
Headnote:(A) Industrial Relations Act, 1967 – Judicial review proceedings – Application for Certiorari against the decision of the Industrial Court – Dismissal of the Applicant for poor performance – The Applicant was sufficiently warned of his unsatisfactory performance and afforded ample opportunity to improve as per the Performance Improvement Plan (PIP) initiated by the First Respondent. (Paras 11-19)
(B) The court reaffirmed that an employer can rightfully dismiss an employee for unsatisfactory performance, provided due process is observed, which includes prior warning and an opportunity to improve. (Paras 11-23)
Facts of the case: The Applicant, employed for over 20 years, was dismissed for poor performance despite several reviews and notifications during his PIP. (Paras 6-12)
Findings of Court: The Industrial Court found that the Applicant had sufficient warning and opportunity to improve his performance but failed to do so, justifying his dismissal. (Paras 23-24)
Issues: Whether the Applicant was given prior warnings and sufficient opportunities to improve his performance before dismissal. (Paras 12-23)
Ratio Decidendi: The court determined that the First Respondent adhered to the procedural requirements of fair dismissal by providing warnings and a PIP, which the Applicant did not fulfill. (Paras 11-23)
Result: Application for judicial review dismissed.
JUDGMENT
Introduction
[1] The Applicant had filed an application for judicial review proceedings (encl 10) under O 53 of the Rules of 2012 (ROC). The leave was granted by this Court on 22 June 2020.
[2] The Applicant is seeking the following reliefs:
2.1 Bahawa pemohon diberi kebenaran untuk memohon suatu perintah Certiorari untuk dibawa masuk ke Mahkamah Tinggi bagi tujuan untuk mengenepikan atau membatalkan keputusan Responden Kedua yang bertarikh 27 December 2019 yang disampaikan kepada Pemohon pada 8 January 2020;
2.2 Bahawa Responden Pertama diarahkan mengambil semula Pemohon di dalam jawatan terakhir beliau tanpa kehilangan pendapatan, faedah, perkhidmatan, kekananan, hak istimewa atau apa-apa manfaat lain dalam apa-apa bentuk;
2.3 Secara alternative kepada prayer (2) di atas, bahawa Responden Pertama membayar gantirugi dan / atau pampasan kepada Pemohon disebabkan pemecatan yang tidak adil dan salah;
2.4 Kos secara langsung dan / atau bersampingan kepada permohonan ini menjadi kos dalam kausa; dan
2.5 Relif-relif lanjut, alternative, berbangkit atau apa-apa relif-relif lain yang dianggap sesuai dan berpatutan oleh Mahkamah Mulia ini.
[3] In gist, the Applicant's judicial review application among others is for an order of certiorari to quash the decision of the Industrial Court, the Second Respondent dated 27 December 2019 which is in a favour of Volvo Car Manufacturing Malaysia Sdn Bhd (the First Respondent).
[4] The Industrial Court has decided that the Applicant has been dismissed with just cause and excuse.
[5] After the hearing, i dismissed the Applicant's application in encl 10. I will now set out the grounds of my judgment.
Background Facts
[6] The background facts gathered from the cause papers, submissions by parties and award of the Industrial Court Chairman are as follows:
6.1 The Applicant is a Malaysian aged 56 years old at the material time and was 4 years away from retirement when his employment with the First Respondent was terminated on 5 September 2018, after 22 years of service.
6.2 The First Respondent is a company incorporated under the Companies Act 1965 and is involved in the assembly of motor vehicles.
6.3 The Applicant commenced employment with the First Respondent on 1 July 1996 as an Electrical supervisor in the Maintenance Department.
6.4 On 25 September 1997, the Applicant was certified as a qualified Chargeman under the Electricity Supply Act 1990 and on 8 August 1998, the Applicant was promoted by the First Respondent to the position of Chargeman.
6.5 The Applicant was further promoted by the First Respondent on 26 September 2008 to the position of Maintenance Executive.
6.6 During his career with the First Respondent, the Applicant received annual pay increments and bonuses and received accolades, cash incentives and certificates for 10 years of perfect attendance.
6.7 By a letter dated 7 July 2017, the Applicant's position was re-designated to Engineer 2 in the First Respondent's Maintenance Department.
6.8 On or about March 2018, the First Respondent had discovered the Applicant's performance was not satisfactory whereby he was falling behind his deadlines that were due as early as 17 July 2017.
6.9 In light of this, the Applicant was placed on a Performance Improvement Plan (PIP) vide the First Respondent's letter dated 29 March 2018 whereby he was warned and informed of the following:
(a) That his performance has been unsatisfactory;
(b) As such, a set of KPIs {which was agreed upon between the First Respondent and the Applicant) containing 25 objectives was to be achieved by the Applicant during the PIP period; and
(c) That in the event objectives were not achieved, the Applicant's appointment will be terminated.
6.10 Thereafter, a total of 7 PIP Reviews were conducted to follow up and help the Applicant to achieve his objectives. After all the PIP Reviews, the Applicant was informed of his level of performance and was advised on key areas to improve wherein the Applicant had duly agre
