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2025 MarsdenLR 2275
INDUSTRIAL COURT KUALA LUMPUR
LIM FANG XIN – Appellant
Versus
AUSTRALIAN TRADE & INVESTMENT COMMISION – Respondent
Award No: 285 Of 2025 [Case No: 2/4-1600/23]
The dismissal of an employee must be justified by just cause, and failure to provide adequate evidence of poor performance renders the dismissal unjustified.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Complaint of dismissal without proper cause - The Claimant, Lim Fang Xin, was dismissed by the Australian Trade & Investment Commission after 8 years of service, citing poor performance without prior warnings or just cause. The court found that the dismissal was not bona fide and lacked just cause, as the Claimant had received positive performance reviews and awards prior to termination. (Paras 1, 33, 82)
(B) Burden of Proof - The employer bears the burden to prove just cause for dismissal. The court emphasized that the employer failed to substantiate claims of poor performance, and the dismissal was deemed unjustified. (Paras 51, 82)
Facts of the case:
The Claimant was employed as a Business Development Manager and received positive performance reviews and awards. She was dismissed without prior warnings or just cause, leading to a claim of unfair dismissal. (Paras 5-39)
Findings of Court:
The court found that the dismissal was without just cause or excuse, and the Claimant's performance was satisfactory, negating the reasons provided by the employer. (Paras 82, 83)
Issues: The main issues included whether the dismissal was justified and if the employer had established just cause for termination. (Paras 51, 82)
Ratio Decidendi: The court ruled that the employer's failure to provide adequate evidence of poor performance and the lack of prior warnings rendered the dismissal unjustified. The Claimant's previous positive evaluations were critical in this determination. (Paras 51, 82)
Result: The dismissal was found to be without just cause, and the Claimant was awarded compensation. (Paras 84, 88)
AWARD
Reference
[1] This Award is handed down pursuant to a hearing of this matter via viva voce evidence subsequent to a reference by the Director General of Human Resources, Malaysia under s 20(3) of the Industrial Relations Act 1967 on 2 October 2023 following a complaint of dismissal of employment without proper cause and excuse by Lim Fang Xin (the Claimant) against her employer Australian Trade & Investment Commission (the Company) on 30 November 2022.
Preliminary
[2] For the purpose of a proper hearing, the pleadings and bundle of documents that were adduced by both parties respectively are as follows:
a. the Claimant's Statement of Case dated 5 December 2023;
b. the Company's Amended Statement In Reply dated 9 January 2024;
c. the Claimant's Rejoinder dated 5 February 2024;
d. the Respondent's Bundle of Documents (COB1);
e. the Respondent's Bundle of Documents (Volume 2) (COB2);
f. the Respondent's Bundle of Documents (Volume 3) (CLB3); and
g. the Claimant's Bundle of Documents (CLB1).
[3] Two (2) witnesses had been called, namely Melanie Harris (COW1) for the Company and the Claimant, Lim Fang Xin [Sandra] (CLW1) who testified for herself.
[4] At the end of the hearing, both parties have filed their Written Submissions as follows:
a. the Claimant's Written Submission dated 23 October 2024;
b. the Respondent's Written Submissions dated 23 October 2024;
c. the Claimant's Reply Submission dated 13 November 2024; and
d. the Respondent's Written Submissions in Reply dated 13 November 2024.
Facts of The Case
[5] On 4 July 2014, the Claimant was offered employment by the Company as the Marketing Assistant at a monthly salary of RM3,605.14 per month.
[6] On 20 June 2017, the Claimant was promoted to the position of Business Development Manager, in the Health and E-Commerce Sectors.
[7] On 17 October 2019, the Claimant was placed on a performance improvement plan (1st PIP) as the Company was of opinion that there was areas of the Claimant's work that required to be addressed.
[8] The 1st PIP commenced on 17 October 2019 and was to run until 31 January 2020.
[9] Shortly after the end of the 1st PIP, the Company, on 6 March 2020, issued a letter to the Claimant titled 'Finding of Performance Improvement Plan 2019 and Proposed Action' informing the Claimant that the Company has made preliminary determination that the Claimant's employment would be terminated on the grounds for failing to meet the required standards of performance.
[10] However in the same letter, the Claimant was also invited to provide a written response for the Company to reconsider its decision before determining the matter in which the Claimant did.
[11] On 13 March 2020, the Claimant responded with her written request for a reconsideration of the Company's decision to terminate the Claimant.
[12] In reply to the Claimant's reconsideration request, the Company vide its email dated 30 March 2020 informed the Claimant, among others, that the Company was willing to suspend making a final decision on the Claimant's performance and further indicated to the Claimant that the Company has decided to extend her performance improvement plan for up to a further 3-month period to enable the Claimant to demonstrate that she has improved her performance to an acceptable level.
[13] Accordingly, the Claimant avers that the Company then extended the Claimant's performance improvement plan a further three months, from 1 April 2020 until 30 June 2020 (2nd PIP) for which she has successfully completed.
[14] On 26 February 2021, the Claimant's supervisor, Amelia Walsh had conducted a performance review on the Claimant and most importantly, apart from acknowledging the completion of the 2nd PIP by the Claimant, Amelia has given some positive comments on the Claimant's overall performance for that period.
[15] On 30 July 2021, the Claimant's performance review was carried out by the Claimant's supervisor, Paul Sanda and her overall performance for that period was rated "Meeting Expect
