This is a reference by the Honourable the Minister of Human Resources Malaysia under Section 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of Encik Zah Murat bin Mohamad Zah (hereinafter known as "the Claimant") by Triways Logistics (M) Sdn. Bhd. (hereinafter known as "the Respondent").

AWARD

Facts of the Case

Claimant in this case was employed by Triways Holdings (M) Sdn. Bhd., to work as the Accounts Manager for Triways Logistics (M) Sdn. Bhd., the Respondent, effective from 13.1.2003 with the basic salary of RM4,000.00 per month; he was placed on a probation period of 3 months. As the Accounts Manager, Claimant reported to the General Manager of the Respondent, one Encik Mohd. Nordin Yusof. Claimant's duties and responsibilities were that of a Head of Accounts Department of the Respondent and included the operation of the accounts and administration, checking and preparation of all records of accounts as well as ensuring all accounts were closed by the 10th day of every month.

According to Claimant, throughout his probation period, he had performed his duties and responsibilities competently, efficiently and to the satisfaction of the Respondent and/or Triways Holdings (M) Sdn. Bhd. There was no issue of his performance raised by the Respondent and/or Triways Holdings (M) Sdn. Bhd. However, vide a letter dated 4.4.2003, Triways Holdings (M) Sdn. Bhd. gave the Claimants 24 hours notice terminating Claimant's employment with the Respondent and/or Triways Holdings (M) Sdn. Bhd. On the same date a new staff by the name of Tuan Hj. Zulkifli Hj. Mohd. Don joined the Respondent as its Senior Accountant. This notice of termination of employment was nevertheless only received by the Claimant on 5.4.2003 at about 11.19 am. ie, on the date of the termination of his service itself. It was cited as the ground of Claimant termination to be that the Claimant's work was not to the Companies' satisfaction. Claimant contended that it was untrue that his work performance was unsatisfactory because shortly after his termination, he was called by Encik Mohd. Nordin Yusof to go back to the office to help to close the account for March 2003. Further, there was no one in the management who highlighted any issue of Claimant's unsatisfactory performance during his tenure. Claimant contended inter alia that his termination of employment was without just cause or excuse.

The Issue

The sole issue before this Court is whether the termination of the employment of the Claimant who was still a probationer at the material time was with or without just cause or excuse.

The Law

In Goon Kwee Phoy v. J & P Coats (M) Bhd. ; [1981] 2 MLJ 129, the Federal Court has expressed vividly that there is no material difference between a termination of the contract of employment by due notice and a unilateral dismissal of a summary nature. His Lordship Raja Azlan Shah CJ (Malaya) (as His Majesty then was) said further at page 136 as follows:

"If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to inquire whether that 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 inquiry 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."

In so far as the rights of a probationer who is terminated or dismissed without just cause or excuse, the Court of Appeal in Khaliah Abbas v. Pesaka Capital Corporation Sdn. Bhd. [1997] 3 CLJ 827 has held 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. This same principle of law is also endorsed by the subsequent Court of Appeal in the case of Robert John Reeves v. Menteri Sumbe