Facts of the Case

Claimant joined the Respondent as Marketing Support Executive effective from 8.4.2004 with an initial salary of RM2,300.00 and an allowance of RM100.00 per month with effect from 27.7.2004, Claimant was confirmed in her position. Vide a letter dated 13.12.2004, the Respondent terminated the services of the Claimant to take effect from 13.1.2005 on the ground of dissatisfaction of the Claimant's performance in term of efficiency, competency and attitude which failed to meet the basic requirement as a Marketing Support Executive. At the time of the dismissal, Claimant's last drawn salary was RM2,500.00 plus RM100.00 allowance per month.

Respondent alleged that Claimant was given enough opportunity to improve her working attitude and efficiency before the Respondent issued her a warning letter dated 2.11.2004 which the Claimant denied having received. Respondent's Chief Executive Officer (CEO) alleged that he had given longer due dates for Claimant to submit her task, frequently gave advice and coaching to the Claimant ever since Claimant joined the Respondent. Despite every effort and chances given, Claimant's performance was still not satisfactory. Task given was not completed in time. In addition, the Claimant dared to challenge the CEO to terminate her service and if she was terminated, she would take legal action against the Respondent as her friend was a legal practitioner.

As the Claimant had failed to show improvement in her job and depended on the CEO to complete her web designing duties, the Respondent terminated Claimant's service in accordance with the Termination of Employment Clause' in the Claimant's letter of appointment.

Claimant contended that prior to her letter of dismissal there had never been any complaint about her job performance by the Respondent. The Respondent had not expressed any dissatisfaction of her job performance in terms of efficiency, competency and attitude and that she had performed all tasks entrusted to her in an efficient and competent manner. Upon receipt of her letter of dismissal, she had written a reply dated 15.12.2004 disputing the allegations against her but the Respondent did not reply to her letter. She contended that her dismissal amounted to termination simpliciter and/or that it was without just cause or excuse.

The Issues

The sole issue before this Court is whether the dismissal of the Claimant by the Respondent vide its letter dated 13.12.2004 on a one month notice was with or without just cause or excuse.

The Law

In James v. Waltham Holy Cross UDC [1972] ICR 398; [1973] IRLR 202, Sir John Donaldson J said:-

"An employer should be very show to dismiss upon the ground that the employee is incapable of performing the work which he is employed to do, without first telling the employee of the respects in which he is failing to do his job adequately, warning him of the possibility or likelihood of dismissal on this ground, and giving him an opportunity of improving his performance. ...

Again, cases can arise in which the inadequacy of performance is so extreme that there must be an irredeemable incapability. In such circumstances, exceptional though they no doubt are, a warning and an opportunity for improvement are of no benefit to the employee, and may constitute an unfair burden on the business."

See Pasaranika Dara Sdn. Bhd. and Kamal bin Abdullah (Award No. 127 of 1989)

Before a reasonable employer can arrive at a considered decision to dismiss an employee on ground of poor or unsatisfactory performance, there is generally a fair procedure to be followed. The essentials of such a fair procedure are by telling the employee the respects in which he is failing to do his job adequately, warning him of the possibility or the likelihood of dismissal on this ground and giving him an opportunity to improve on his performance; see IE Project Sdn. Bhd. and Tan Lee Seng (Award No. 56 of 1987).

For dismissal cases, it is trite that the employer bears the burden of