The dispute is over the dismissal of the claimant who was employed by the company as a lab supervisor on 30 March 1992.

The claimant was confirmed by a letter dated 27 June 1992. As from 1 July 1992 his basic salary was increased to RM2,300 with a site allowance of RM200. He was dismissed by a letter dated 21 September 1992. At the material time his last drawn basic salary was RM2,300 plus site allowance of RM300 per month.

The claimant contends that his dismissal is without any just cause or excuse and in breach of the principles of natural justice, an unfair labour practice and unlawful. He therefore prays that he be reinstated in his former job without any loss of wages, allowances, service, seniority, privileges or benefits of any kind.

In the amended statement in reply the company avers that the claimant reported for duty on 2 April 1992 and was employed specifically for the North South Expressway; Ipoh (South) to Simpang Pulai Project, due to be completed in January 1994. The company further avers that the claimant's service was terminated with just cause and excuse on grounds of poor performance and misconduct which was the frequent taking of unjustified medical leave.

Since it is clear from the company's pleadings that its reasons for dismissing the claimant was firstly, his poor performance and secondly, his frequent taking of unjustified medical leave, it is imperative that the company adduce convincing and acceptable evidence that the claimant committed the offences he is alleged to have committed for which he has been dismissed.

It would be appropriate at this juncture to scrutinize and investigate the factual matrix of this case as disclosed in the evidence of the company's witnesses.

The company was awarded the contract for the North-South Expressway: Ipoh (South) to Simpang Pulai Project (hereinafter called the "project") the value of which was over RM144 million, to be completed within 27 months, i.e., January 1994. The contract contained a penalty clause which required the company to pay a sum of RM18,000 for every day of delay which occured. The claimant was employed as a lab supervisor on 30 March 1992, especially for this project and was assigned the duties of density testing and CBR testing by Encik Yap Beau Chuan (COW1), the project manager at the material time. The claimant was confirmed in his appointment in July 1992 on COW1's recommendation and given a 10% adjustment to his salary.

The work at the construction site accelerated in August 1992, and simultaneously the workload on lab testing and field testing increased. According to COW1, it was then that he received a lot of complaints from various staff members that they were not getting the density and CBR tests on time from the claimant as required. These complaints were brought at the "alternate days" meetings that COW1 had with all the engineers at the Project site office. As a result COW1 called the claimant to his office a few times to address these complaints and to find out from him the reasons for the delay in producing the test results. Below is a relevant extract of his evidence:

I saw and spoke to the claimant I can't recall how many times, more than twice, definitely three or four times. I was satisfied there were delays in carrying out his work. There was a long delay in the CBR testing. We reminded him to get the thing done - it was about one month over. For the density tests it happened so frequently. It was so bad I had to bring it up to the managing director of the company sometime in August.

Later COW1 said in evidence:

Ever since facing this problem, we had on many occasions tried to get the claimant to improve, but we did not get the results in time. When it reached critical stage, the matter was brought up to the project and managing director. After a few discussions, instructions were given to me to see whether there is any improvement within a certain period - about a month, August to September. Upon the end of the period the managin