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2021 MarsdenLR 2453
INDUSTRIAL COURT KUALA LUMPUR
JULIE MARZLIFFA MOHD RAZAKI – Appellant
Versus
UEM GROUP BERHAD – Respondent
Award No: 1561 Of 2021 [Case No: 2(12)/4-137/20]
Dismissals for poor performance do not require a domestic inquiry if procedural fairness is observed, and employers must prove dismissal was justified.
Headnote:(A) Industrial Relations Act 1967 – Subsection 20(3) – Dismissal of employee for poor performance – Claimant employed for 15 years – Allegation of unfair dismissal due to lack of domestic inquiry – Court held that a domestic inquiry is not necessary for poor performance dismissal as per statutory guidelines – Dismissal deemed fair and justified as the burden of proof lies with the employer to establish just cause. (Paras 14, 57, 64)
(B) Burden of proof – In dismissal cases, the employer must prove that the dismissal was made on just cause or excuse, following procedures in accordance with company policy and statutory requirements. (Paras 15, 59)
Facts of the case: This case involves a claim for wrongful dismissal by the claimant after her termination by the UEM Group Berhad on 23 January 2019. The claimant argued unfair treatment and lack of a domestic inquiry during her performance evaluations, despite 15 years of service. (Paras 1, 6, 8)
Findings of Court: The Court found that the dismissal was justified and followed the company’s performance management procedures; ample warning and opportunities to improve were provided to the claimant prior to termination. (Paras 62, 64)
Issues: Key issues focused on the fairness of the dismissal, the necessity of a domestic inquiry, and the employer’s justification for terminating the claimant's employment. (Paras 40, 41, 57)
Ratio Decidendi: The Court ruled that while a domestic inquiry is generally not obligatory for dismissals on performance grounds, proper procedures must be evident. Thus, the dismissal was viewed as an exercise of the employer's prerogative, not capricious or unjust. (Paras 41, 57)
Result: Claim dismissed. (Paras 64)
AWARD
Reference
[1] This is a reference made under subsection 20(3) of the Industrial Relations Act 1967 [Act 177] ("the 1967 Act") arising out of the dismissal of Julie Marzliffa Binti Mohd Razaki (hereinafter referred to as "the claimant") by UEM Group Berhad (hereinafter referred to as "the company") on 23 January 2019.
[2] The Ministerial reference in this case required the Court to hear and determine the claimant's complaint of dismissal by the company on 23 January 2019 and was received by the Industrial Court on 2 January 2020.
Factual Matrix
[3] The company, a wholly owned subsidiary of Khazanah Nasional Berhad, is Malaysia's leading engineering-based infrastructure and services conglomerate which focuses on four key businesses namely Expressways, Township & Property Development, Engineering & Construction and Asset & Facility Management. The claimant commenced employment on 1 October 2005 with UEM Edgenta Berhad (formerly known as Faber Group Berhad), a subsidiary of the company as an Executive Internal Audit. In 207 to 2015, she worked with Faber Development Holdings Sdn Bhd and then transferred to the company to the Taxation Division as Senior Executive. Throughout her services with the subsidiary companies, the claimant was given salary increments and bonuses for her contributions and good performance in the companies. The claimant's last drawn salary was RM4,880.00.
[4] The claimant contended that during the three years from 2015-2017 working in the GST Department of the company, she worked directly under the supervision of the Manager or Deputy Manager of the said department. She claimed that she had no issues with her performance throughout her service in the company and had consistently achieved higher than "Bronze" in all Key Performance Index (KPI) prior to 2017. She had shown the various appreciation letters awarding her bonuses, tokens and salary increments. She alleged that her work was never supervised by the Head of the Taxation Department, Evonne Lim (COW2). A total of 12 subsidiaries were under her purview. In April 2017, the claimant's supervisor took annual leave and COW2 then reviewed the GST reports particularly for two companies under the claimant's list, namely Syarikat Projek Lebuhraya Usahasama Berhad and Unipati Concrete Sdn Bhd.
[5] Nevertheless, the claimant claimed that the company had calibrated her performance score without her knowledge and she was given a "Bronze" for her alleged poor performance. She alleged that there was no discussion to change the performance score between the claimant and the Head of the Department. She discovered about the change vide letter on 3 May 2018 and she claimed that this was done in contravention of the company's policy as discussion was a prerequisite stated in the Performance Appraisal Form (PAF). Therefore, the claimant allegedly was unfairly evaluated because the appraiser and reviewer, COW2, had not reviewed her reports by approving the forms submitted by the claimant dated from 1 January 2017 to 31 January 2018.
[6] Via letter dated 7 May 2018, the claimant was instructed to undergo a Performance Improvement Plan (PIP) for two months due to her rating of "Bronze". She alleged that she was instructed to complete unreasonable amount of tasks, among others, to complete revision of the GST report within three days after the reports were obtained from the subsidiary companies and to calculate retention sum of UEM Construction Sdn Bhd since 2013. She managed to complete her tasks in the first PIP but there was a delay of the review report by COW2. Then she was put on three other PIPs consecutively, purportedly (but no formal letter was issued to her) as COW2 was not satisfied with her progress. Until the end of the fourth PIP, the claimant's superior was still unsatisfied with her performance. She claimed that COW2 had written a letter to complain to the Ministry of Finance on the changes to the law and rules in respect of auditing GST, a
