Dismissal of a probationary employee for misconduct is justified if proven, without the necessity for formal warnings.

Paramalingam J Doraisamy:

Reference

[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Mohamad Zaim Bin Safaddin (hereinafter referred to as "the Claimant") by Smart Legacy Sdn Bhd (hereinafter referred to as "the Company") on 7 October 2022.

[2] The reference by the Director General of Industrial Relations ("DGIR") in this case required the Court to hear and determine the Claimants' complaint of dismissal by the Company on 7 October 2022.

I. Procedural History

[3] The Industrial Court received the letter pertaining to the DGIR's reference under s 20(3) of the Industrial Relations Act 1967 on 7 April 2023.

[4] The matter was fixed for mention on 10 May 2023, 18 July 2023, 16 August 2023, 6 September 2023 and 5 October 2023.

[5] The trial of the matter proceeded on 1 November 2023 and concluded on 21 November 2023.

Parties' Position On The Merits

(a) The Claimant

[6] The Claimant commenced employment with the Company on 17 January 2022 as an Operations Manager. He was placed on a probationary period of 6 months.

[7] On 18 August 2020, the Company issued its First Warning Letter to the Claimant, citing its dissatisfaction with the Claimant's work attitude.

[8] A 2nd Warning Letter thereafter was issued on 13 September 2022, again citing dissatisfaction with the Claimant's work attitude.

[9] The Company issued a Third Warning Letter to the Claimant on 29 September 2022, citing the following issues with the Claimant's work attitude:

i. the Claimant's poor attendance and not being punctual to work;

ii. the Claimant's failure to obtain approval from the management before allowing one of its Tenant's (NL#C14) dessert stall to sell new additional items;

iii. the Claimant had neglected to answer calls from his superiors.

[10] On 6 October 2022, the Claimant issued a Termination Letter to the Claimant whereby the Claimant's services with the Company was terminated effective 7 October 2022. At the time of termination, the Claimant was still under probation.

(b) The Company

[11] The Company contends that at all material times the Claimant was subjected to a probationary period of 6 months before his appointment could be confirmed. However, after the initial 6 months' probationary period, the Company extended the Claimant's probation period and continued to put the Claimant under assessment and evaluation of his work due to his unsatisfactory performance.

[12] In arriving at its decision to terminate the Claimant's services, the Company had exercised careful deliberations and considerations on the Claimant's serious misconduct in performing his works which, amongst others, includes the following:

i. That the Claimant as an Operation Manager and being in a managerial position who was tasked to take charge of the operation of the Company's food Court in AEON Mall at Nilai ("the Food Court") had frequently absented from work without obtaining the prior permission from his superior or the Company;

ii. That the Claimant had repeatedly reported late for work at the Food Court and left the Food Court earlier than scheduled despite being verbally warned and reprimanded by his superior or the Company;

iii. That the Claimant had always avoided answering or returning phone calls from/to his superior and this had caused the Company not being able to contact the Claimant in times of emergency at the Food Court;

iv. That the Claimant had failed and neglected in carrying out checks at the Food Court which had allowed the tenants to short-punch their sale transactions into the cash register machine and to mishandle the cash sale money;

v. The Claimant had failed and neglected in protecting and securing the Company's assets at the Food Court which had caused the loss of the following Company's assets:

a. 2 units of the stalls C04 and C03 POS adaptors; and

b. 1 unit of the dishwasher room door.

vi. The Claimant had failed and neglected in monitoring the tenants' operations at the Food Court which had allo