AWARD

The claimant commenced employment with the company on 19 Mei 1998 and was dismissed on 24 Mac 1999 while still on probation. The claimant contends that his dismissal was without just cause or excuse. It is not in dispute that the claimant's initial probation period was extended by another six months with effect from 19 November 1998 (see p. 7 of agreed bundle of documents "ABD"). On the function of the Industrial Court, the Federal Court in Goon Kwee Phoy v. J & P Coats (M) Sdn. Bhd. generally enunciated:

Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of that Court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire Whether the excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the Court is the reason advanced by it and that Court or the High Court cannot go into another reason not relied on by the employer or find one for it.

It is also beyond question that an employee on probation enjoys the same rights as a permanent or confirmed employee and his or her services cannot be terminated without just cause or excuse. The onus is consequently on the company to prove on a balance of probabilities that the claimant's dismissal was with just cause or excuse.

The Court of Appeal in Khaliah Abbas v. Pesaka Capital Corporation Sdn. Bhd. , [1997] 1 MLJ 376 while not expounding on the substantive law pertaining to a probationer however held that the requirement of bona fide is essential in the dismissal of an employee on probation. The dismissal must not be a colourable exercise of the power to dismiss or as a result of discrimination or unfair labour practice. Faiza Tamby Chik J in Robert John Reeves v. Menteri Sumber Manusia Malaysia & Anor; [2000] 1 MLJ 107; [2000] 1 CLJ 180 in asserting that the power to either continue or discontinue the services of a probationer rested with the employer also held that the employer was fully entitled to terminate his services upon their evaluation that he did not perform his job functions satisfactorily. It was the prerogative of the employer to assess and determine the standard of performance of the probationer vis-a-vis their expected level of performance. The Industrial Court in Equatorial Timber Moulding Sdn. Bhd. v. John Michael Crosskey; [1986] 2 ILR 1666 described the rights and obligations of an employer/probationer as follows:

Being a probationer, he has no substantive right to hold the post. He holds no lien on the post. He is on trial to prove his fitness for the post for which he offers his services. His character, suitability and capacity as an employee is to be tested during the probationary period and his employment on probation comes to an end if during or at the end of the probationary period he is found to be unsuitable and his employer can terminate his probation by virtue or otherwise as provided in the terms of appointment. See the case of ChongKim Eng v. Soclim Kemajuan Sdn. Bhd. (Award No. 82/80) and also P.I. Dhingra v. Union of India (AIR 1958 S.C. 36). Also, there is an abundance of authorities to support the view that an employer has a contractual right to terminate the services of a probationer without notice and without assigning any reasons whatsoever. And no enquiry need to be held for such a purpose, for termination of service of the probationer during the probationary period is not a punishment or dismissal but simply that of termination. See Tan Choon Hoe vs. Hotel Continental Sdn. Bhd. Penang (Award No. 23/76). However, when the validity of such a termination is challenged, the Court must be satisfied that such termination was a bona fide exercise of the power