Back
2021 MarsdenLR 3151
INDUSTRIAL COURT KUALA LUMPUR
KHOO KIM LOANG – Appellant
Versus
ITZ MY TREATS SDN BHD – Respondent
Award No: 1128 Of 2021 [Case No: 6(15)/4-54/20]
Dismissal during probation requires employers to prove misconduct; claimant failed to establish victimization or unfair practices.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal for poor performance – Claimant dismissed during probation alleging victimization – Company bears the burden to prove misconduct and just cause for dismissal – Court found no evidence of victimization or unfair labour practices. (Paras 12, 13, 41, 42)
(B) Employment and Probation – The claimant's acceptance of probation terms apparent despite argument of being a permanent employee – Evidence indicated claimant's poor performance and violations of company policies. (Paras 19, 22, 33)
Facts of the case: The claimant was employed under a probationary contract starting 8 July 2019 and dismissed on 23 September 2019 due to alleged poor performance, which he contested claiming victimization.
Findings of Court: The court determined that the claimant did not fulfill his job requirements and upheld the company's termination decision as justified. (Paras 41, 42)
Issues: Whether dismissal was for valid reasons, and if the claimant was a probationer or permanent employee. (Paras 18, 41)
Ratio Decidendi: The court concluded that the company had ample evidence of the claimant's performance issues, justifying the dismissal and establishing the claimant's status as a probationer. (Paras 22, 41, 42)
Result: Claim dismissed.
AWARD
Reference
[1] This is a Ministerial reference under s 20(3) of the Industrial Relations Act 1967 arising out of the alleged dismissal of KHOO KIM LOANG (The Claimant) by ITZ MY TREATS SDN BHD (The Company).
Claimant's Case
[2] The claimant in his Statement of Case states that by Letter of Appointment dated 1 July 2019, he commenced employment with the company as Sales Executive with effect from 8 July 2019 on a 12 months contract term until 8 July 2020 with a salary of RM4,000 per month. (CLB1 pp 1-2).
[3] The claimant avers that vide letter dated 23 September 2019, the company dismissed him on the ground of poor performance. (CLB1 p 3).
[4] The claimant alleges that the company's decision to dismiss him from employment was an act of victimization, unfair labour practices, and contradictory to the principles of natural justice and is without just cause and excuse.
Company's Case
[5] The company asserts that the claimant's employment with the company was subject to a standard three months probation period applicable to all its employees.
[6] The company avers that the claimant's job was purely sales related. Based on the claimant's resume attached in his job application and the verbal assurance given during the interview, the claimant had assured the company that he was able to sign up over 300 merchants within his three month probationary period.
[7] It was the company's case that from the beginning of his employment, the claimant has displayed tardiness, lack of willingness and commitment to perform his duties and had no regard to the company's policies.
[8] The company asserts that the claimant too had constantly coming in late and showed no remorse for his actions even after being issued with a show cause letter on 5 August 2019 less than 2 months of his employment with the company. (COB1 pp 3-4).
[9] The company contended that the claimant too had a habit of taking emergency leave by merely sending a same WhatsApp messages to the company (COB1 pp 5-8 ].
[10] The company states that despite the numerous counselling sessions, reminders and been informed about his inefficiencies as well as his poor job performance, the claimant remained uncooperative and unwilling to improve himself.
[11] The company asserts that the claimant's termination was with just cause and excuse.
The Law
[12] In the often cited case of Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd, [1988] 1 MLJ 92 at p 302, the duty of the Industrial Court was held as follows:
When the Industrial Court is dealing with a reference under s 20, the first thing that the Court will have to do is to ask itself a question whether there was a dismissal, and if so, whether it was with or without just cause or excuse.
[13] It is trite law that the company bears the burden to prove that the claimant had committed the alleged misconduct and that the misconduct warrants the claimant's dismissal. In the case of Ireka Construction Berhad v. Chantiravathan Subramaniam James ; [1995] 2 ILR 11 (Award No 245 of 1995) it was stated as follows:
It is the basic principle of industrial jurisprudence that in a dismissal case, the employer must produce convincing evidence that the workman committed that offence of which the workman is alleged to have been dismissed. The burden of proof is on the employer to prove that he has just cause or excuse for taking the decision to impose the disciplinary measure of dismissal upon the employee. The just cause must be, either a misconduct, negligence or poor performance based on the case.
[14] The onus or burden of proof upon any party to be proved is on a balance of probabilities as decided in Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor, .
Evaluation Of Evidence And Findings
[15] The claimant gave evidence on his own behalf and as in his witness statement while the company called Mr Foo Seong Meng the CEO of the company (COW1), Micheal Jevadason Joseph (COW2), Stalin Anak Joefery (COW3) and Lim Sin Seng (COW4).
[16] COW1
