Facts of the Case

Before Claimant was employed by the Respondent, he was the Workshop Manager of United Fuso Sdn. Bhd. (UFSB) at Ipoh Branch. Mr. Saw Lip Choon was then the General Manager of UFSB; he later joined the Respondent and became its General Manager. Mr. Saw Lip Choon subsequently approached the Claimant and offered him to join as Workshop Manager at the Ipoh Branch of the Respondent. Hence Claimant commenced his employment with the Respondent as its Ipoh Branch Workshop Manager with effect from 19.2.2004 on a monthly salary of RM4,000.00 and an allowance of RM300.00 per month. Claimant was to undergo a probation of 6 months as stipulated in his letter of appointment dated 12.3.2004.

On 26.6.2004, the Respondent issued a transfer order to the Claimant to transfer him to its Selayang Branch effective from 1.7.2004. The Respondent alleged that it was Claimant's poor performance that he was transferred to Selayang Branch so that he could be supervised and monitored. Claimant protested and appealed against the transfer where he also sought various clarifications. The Respondent had turned down his appeal but deferred the transfer finally to 19.7.2004. Claimant ultimately reported for duty in Selayang Branch as its Service Manager.

On 4.8.2004, the Human Resource Manager of the Respondent issued a letter of final warning to the Claimant citing the grounds that Claimant's performance was not up to the Respondent's expectation in that Claimant had failed to submit reports as required by the management, failed to report customers' complaints to his immediate superior, En. Azhar Samat and thirdly, his poor attendance. In this letter of final warning, Claimant was advised to improve the above and his overall performance.

On 12.8.2004 ie, 8 days after the aforesaid warning letter, the Respondent terminated the Claimant's service with effect from the same date by not confirming him in his service. Claimant contended that his termination in the circumstances was unfair, tainted with mala fide and was without just cause or excuse.

The Issue

The sole issue before this Court is whether the termination of the Claimant's service 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 had held that:-

"Where representation are made and are referred to the Industrial Court for inquiry, it is the duty of that Court to determine whether the termination or dismissal is with or without just cause or excuse. 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. ..."

On the right of a probationer as the Claimant herein in relation to the issue of his dismissal, the Court of Appeal in Khaliah Abbas v. Pesaka Capital Corporation Sdn. Bhd. [1997] 3 CLJ 827 has expressed the following:-

"Consequently, an employee on probation would enjoy the same rights as a permanent or confirmed employee, and therefore his or her services could not be terminated without just cause or excuse. In the same way, the requirement of bona fide was essential in the dismissal of an employee on probation. However, if the dismissal or termination was found to be a colourable exercise of the power to dismiss or was a result of discrimination or unfair labour practice, the Industrial Court would have the jurisdiction to interfere and to set aside such dismissal."

As for all dismissal cases by the employer, the burden of proof is vested on him to prove that the dismissal was with just cause or excuse with cogent and convincing evidence; see Goon Kwee Phoy (supra) and it is on a standard which is on a balance of probabilities; see Telekom Malaysia Kawasan Utara v. Krishan Kutty Sanguni Nair & Anor [2002] 3