Termination of a probationary employee must be justified by just cause or excuse, with the employer's discretion in evaluating performance upheld.

AWARD

Syed Noh Said Nazir @ Syed Nadzir:

Reference

[1] This is a reference by the Honourable Minister of Human Resources under s 20(3) of the Industrial Relations Act 1967 in respect of the termination of Chan Yeon Kum (hereinafter referred to as "the Claimant") by the respondent Stampro International (M) Sdn Bhd (hereinafter referred to as "the Company") on 27 October 2020 in order for the case to be heard and a final award be handed down.

Factual Matrix

[2] By a Letter of Employment dated 1 June 2020 ("LE"), the Company had offered and the Claimant had accepted the position as a Production Manager with the Company, subject to the terms and conditions stipulated in the LE. The terms and conditions under the LE are, inter alia, as follows.

General Scope Of Responsibilities

[3] The only task and/or work that the Claimant has to do as a Production Manager, which the Company had made clear to the Claimant, while interviewing with the Claimant, is that the task and/or work for him is to work on the machine with model PSX-6886 to enable the said machine to operate and to maintain the machine, which the Claimant has agreed to, and has promised the Company that the machine will be able to operate.

Expectations; Disputed By The Claimant

[4] The Company states that, to enable the machine to fully operate, there will be several stages of work that have to be done. Where the Claimant has started his work on 1 June 2020 and has later, on 23 June 2020 via a WhatsApp message, promised the Company that he would be able to complete the first stage and that the machine would be able to operate on its first stage on 1 July 2020. However, after 1 July 2020, the Claimant has yet to finish the first stage without giving a proper and sufficient explanation.

[5] The Claimant avers that there was no agreement signed by the Claimant which mentioned that the Claimant has to complete the task within 3 months. Moreover, the Claimant had clearly informed the Director that he needs to survey the machine's condition since the machine has not beenoperating for months. Therefore, the Claimant clearly mentioned to the Director as follows:

(i) The Claimant would need to spend some time to evaluate and study the condition of the machine.

(ii) That he will make the necessary proposal and requirement for the machine to work safely.

Working Hours & Rest Days

[6] At cl 1 of the LE, the Claimant was required to comply with the following working hours:

I. Monday to Friday 8.30am - 5.30pm

II. Saturday 8.30am - 12.30pm

[7] At cl o of the LE, the Claimant is to comply with other rules and regulations and to refer to the Employee Handbook.

[8] Whilst at the bottom of p 4 of the LE, public holidays for one year were listed as New Year, Chinese New Year (CNY), Labour Day, Sultan's Birthday, YDPA's Birthday, Hari Raya Puasa (HRP), Hari Raya Haji, National Day, Deepavali Day, Christmas Day, Wesak Day, Thaipusam, Awal Muharram and Malaysia Day; all of which carry a day leave, save for CNY and HRP, both of which carry two days leave.

Termination

d) "Upon confirmation in your appointment, i.e., after probationary period, and thereafter, either party may terminate employment at any time by giving to the other party one month's notice or one month's salary in lieu of notice. However, in respect of termination of employment due to misconduct, no notice of termination or salary in lieu of notice is required to be given."

Reasons For Dismissal

[9] The Company submits at para 3 of the Written Submission that the Claimant had commenced his employment as a probationer, and the Claimant has been terminated as a probationer on 27 October 2020 by way of a WhatsApp message due to several acts of misconduct and poor performance by the Claimant.

Events Leading To The Claimant's Termination

Poor Performance

[10] Where the Claimant has started his work on 1 June 2020 and has later, on 23 June 2020, via a WhatsApp message, promised the Company that he would be able to complete the first stage and the machine would be