The dispute emanates over the claimant's dismissal from the services of the company on 12 March 2002. Vide letter of 26 September 2003 the dispute was referred to the Industrial Court by the Minister of Human Resources under s. 20(3) of the Industrial Relations Act 1967 for an award.

Brief Facts

The claimant started working for the company on 1 November 1985 as a bodyguardvide a letter of appointment dated 1 November 1985 with a monthly salary of RM900 and graded "1B" (exhibit SK 1).

Throughout his period of employment with the company the claimant had been upgraded twice to the grade "1A' and later to the grade of "SG".

Vide a letter dated 15 December 1986 he was redesignated as a security personnel with effect from 1 January 1987 (exhibit SK 2).

As bodyguard/security personnel, the claimant's primary duty and responsibility was to protect the executive Chairman, Tan Sri Quek Leng Chan (COW1) and his family. This included escorting and accompanying COW1, his wife and his children when they leave the office or residence to wherever they wanted to go. He was also to bring the Chairman's cook to the market and at the end of the marketing to bring her back to the house.

By a letter dated 12 March 2002 the claimant's services was terminated with immediate effect (exhibit SK 3). For ease of reference the letter is reproduced below:

Hong Leong Management Co.

PRIVATE & CONFIDENTIAL

12 March 2002

Mr. Subah Kumar s/o Madhu Ram

Security personnel

HLMC

PRESENT

Dear Mr. Subah,

TERMINATION OF SERVICES

You have been informed from time to time, by your superiors to improve on specific areas of your performance which you have failed to-date.

In view of the above, you are hereby informed that your services with the Company are terminated with immediate effect. You will however be paid in lieu of one (1) month's notice of termination.

You are required to return all Company properties, including your service revolver to Mr. Ram immediately.

Yours sincerely,

Signed

FRANCIS WEN LIEH LIEH

MANAGER, GROUP HUMAN RESORUCES

Cc Executive Chairman

Finance Director, Finance & Treasury, HLMC

General Manager, Group Human Resources"

At the time of his termination the claimant had been in the company's employment for about sixteen (16) years and four (4) months. His last drawn salary was RM3,215 per month.

It is the claimant's contention that he was dismissed without just cause or excuse.

The Law

It is a principle of employment law that the employer must establish sufficient circumstances justifying dismissal for unsatisfactory or poor performance. A duty is imposed on the employer to forewarn the employee of the possibility of dismissal if his unsatisfactory work performance does not improve within a stipulated time frame. The employer must:

(i) warn the employee about his poor performance;

(ii) offer him sufficient opportunity to improve; and

(iii) only after the above is complied with and should the performance remain unsatisfactory would the dismissal be justifiable.

In the case of Rooftech Sdn. Bhd. v. Holiday Inn Penang ; [1986] 2 ILR 818 the Industrial Court stated as follows:

... Inefficiency which discloses a course of negative conduct no doubt is a sufficient ground for termination but there must necessarily be sufficient proof that a procedure has been followed. Ordinarily there must be sufficient written communications to the Claimant in order establish inefficiency or poor performance before the company can rely on it to justify dismissal.

Later in I.E. Project Sdn. Bhd. v. Tan Lee Seng; [1987] 1 ILR 165 the Learned Chairman held that:

... An employer should be very slow to dismiss on the ground that the employee is found to be unsatisfactory in his performance or incapable of performing the work which he is employed to do without first just telling the employee of the r