The entitlement of a dismissed probationer on a fixed-term contract is restricted to the unexpired contract duration, not to standard back wages of 12 months.

[1] This is the applicant's application for certiorari to quash the whole of the 1st respondent's award in finding a case of unfair dismissal and in awarding back wages of 12 months with a reduction of 20% for post dismissal earnings to the 2nd respondent.

[2] Among the issues raised in this application was the rather novel question of whether an employee who is employed both as a probationer and on a fixed term contract and who is held to have been terminated without just cause or excuse before the expiry thereof, is only entitled to back wages of the unexpired portion of the fixed term contract or 12 months' back wages pursuant to the Second Schedule to the Industrial Relations Act 1967 .

Background Facts

[3] The 2nd respondent was employed as a Financial Executive on a fixed term contract for one year commencing from 18 January 2010 with the applicant. The one year contract also entailed a probationary period of not less than six months inclusive of three months of training and attending courses to enhance the 2nd respondent's skills as a Financial Executive.

[4] The 2nd respondent commenced selling the assigned applicant/bank's products from April 2010 till June 2010. The 2nd respondent was not confirmed in her position as Financial Executive with the applicant on 30 July 2010.

[5] The 2nd respondent's fixed term contract would have expired on 17 January 2011 and there was exactly five months and 17 days left for her contract to expire.

[6] Dissatisfied with the appellant's decision not to confirm her, the 2nd respondent filed a representation pursuant to s 20(1) of the Industrial Relations Act 1967 culminating with the 1st respondent pursuant to a Ministerial reference under s 20(3) of the same act, adjudicating her case.

[7] After hearing the case, the 1st respondent held that the 2nd respondent was terminated without just cause and excuse and awarded back wages of 12 months, with a rescaling of 20% for post dismissal earnings.

Parties' Contentions

The Applicant

[8] The applicant submitted that it employed the 2nd respondent because she had experience in the banking industry as she had previously worked at CIMB Bank Berhad performing work of an almost similar nature.

[9] The 2nd respondent commenced selling the assigned applicant/bank's products from April 2010 till June 2010. The 2nd respondent's immediate superior who supervised her, gave evidence at the Industrial Court that he had counselled and also warned the 2nd respondent to "buck up". Because her sales performance for the months of April, May and June 2010 were dismal, the 2nd respondent was not confirmed in her position as Financial Executive with the applicant on 30 July 2010.

[10] It is the applicant's case that because the 2nd respondent had failed to perform despite being given counselling and warnings, her non-confirmation was with just cause or excuse.

[11] As the 2nd respondent's fixed term contract would have expired in any event on 17 January 2011, there was exactly five months and 17 days left for her contract to expire.

[12] The applicant submitted that it is a settled rule of the industrial jurisprudence that a prob