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2024 MarsdenLR 875
INDUSTRIAL COURT KUALA LUMPUR
AHMAD NIZAMZURI YACOB – Appellant
Versus
AKER SOLUTIONS MALAYSIA SDN BHD – Respondent
Award No: 788 Of 2024 [Case No: 21/4-1817/20]
The court affirmed that an employer must prove just cause for dismissal based on employee performance, ensuring fair opportunity for improvement through structured performance plans.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal of employee – The court must determine if the dismissal was with just cause or excuse, focusing on the employer's reasons for termination. The employer must prove that the employee's poor performance justified dismissal. (Paras 5, 6, 10, 41)
(B) Performance Improvement Plan (PIP) – The employer must provide the employee with a fair opportunity to improve performance, including clear objectives and feedback. Failure to meet these objectives can lead to termination. (Paras 10, 27, 41)
Facts of the case: The claimant was dismissed from Aker Solutions Malaysia Sdn Bhd for poor performance after being placed on two Performance Improvement Plans (PIPs) in 2016 and 2019, failing to meet the required performance standards. (Paras 14, 40)
Findings of Court: The court found that the company had established just cause for dismissal based on the claimant's continued poor performance despite multiple opportunities to improve. (Paras 41, 61)
Issues: Whether the company proved the claimant's poor performance, whether the claimant was oppressed or victimized, and whether the PIP was designed to fail the claimant. (Paras 13, 41)
Ratio Decidendi: The court ruled that the employer must demonstrate that the dismissal was justified based on the employee's performance, and that the claimant was given adequate notice and opportunity to improve. (Paras 5, 41)
Result: Claimant's case dismissed.
AWARD
Reference
[1] The dispute is a reference by the Honourable Minister of Human Resources dated 30 July 2020 pursuant to s 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of AHMAD NIZAMZURI BIN YACOB ("the claimant") from the services of AKER SOLUTIONS MALAYSIA SDN BHD ("the Company") on 21 February 2020.
Cause Papers Considered
[2] The trial of this matter was held for four (4) days, that is on 8 August 2022, 11 July 2023 and 12 July 2023, where the Company presented its case and continued on 12 December 2023 - where the Claimant took the witness stand to present his case. The following witnesses were called by the Company:
(i) Navamogan Munian ("COW-1")
(ii) Cher Siew Chieun ("COW-2"); and
(iii) Yii Hee Sung ("COW-3")
Their respective witness statements were marked as "COWS-1", "COWS-2" and "COWS-3".
[3] The Claimant was the only witness who gave evidence on his behalf. His witness statement was marked as "CLWS-1".
[4] The following bundles of documents were adduced by the parties and all documents therein were accepted as exhibits. The bundles were marked in the following manner:
(i) Claimant's Bundle of Documents ("CLB-1"); and
(ii) Company's Bundle of Documents ("COB-1").
The Applicable Law, Burden And Standard Of Proof
[5] The role of the Industrial Court was lucidly explained by His Lordship Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) in Goon Kwee Phoy v. J & P Coats (M) Bhd, [1981] 2 MLJ 129 (Federal Court) as follows:
"Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of the Court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason or excuse for the action taken by him, the duty of the Industrial Court will be to enquire whether that reason or excuse has or has not been made out. If it finds as a fact that it has not been proven, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the Court is the reason advanced by the employer, and that Court or the High Court cannot go into another reason not relied on by the employer, or find one for it".
[6] Hence, the onus is on the Company to prove that it had dismissed the Claimant with just cause and excuse on the basis of the Claimant's poor performance whilst in employment with the Company. It ought to be made out that the Claimant's poor performance relates to the deficiencies in his work or standard of work, and involves inefficiency, incompetence or plain inaptitude.
[7]"Inefficiency", "incompetency", or "incapability" means the workman is found to be incapable of performing the work which he was employed to do, or incapable of performing the basic work functions as required by the employer. Poor performance may possibly bring about another aspect of ground for dismissal. Although not misconduct per se, it had been held that poor performance is an acceptable basis for an employer to dismiss an employee with just cause and excuse. In this regard, it was held in Khor Eng Khye v. Guiness Anchor Marketing Sdn Bhd (supra) that:
"Although the Industrial Court has held that poor performance is not misconduct per se, it is trite law that poor performance affords an acceptable basis for an employer to establish that the dismissal is with just cause or excuse under s 20 of Industrial Relations Act 1967 . The reason for this is that inefficiency or in competence resulting in failure to perform the duties of the service destroys the whole reality of the contract from the point of view of the employer. The vast majority of the employees make their employers the judges of their competence. Hence, so long as the employer acts bona fide ie if he is genuinely discontented with an employee, he is quite entitled to dismiss the employee. (see Samsudin Amin v. Austral Enterprises Bhd Award 47 of 1974)."
[8] This Court is well
