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2022 MarsdenLR 1927
INDUSTRIAL COURT PENANG
KAMALISWARRAN KRISHNAN – Appellant
Versus
BP ENGINEERING SOLUTIONS SDN BHD – Respondent
Award No: 2439 Of 2022 [Case No: 9/4-2095/21]
The dismissal of an employee still on probation must be based on adequate warnings and performance assessments; failure to provide this justifies reinstatement.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Employment – The Claimant was dismissed from employment by the Company under probation without adequate warning or performance appraisal, culminating in a review process that was inadequate for just cause. (Paras 4-6, 10-10, 20-21)
(B)
Burden of Proof – The Company had the burden to establish that the dismissal was with just cause or excuse and failed to do so. The dismissal was ruled without just cause despite the Claimant’s poor performance. (Paras 11-14, 36-37)
Facts of the case:
The Claimant was employed as a Safety Supervisor, faced termination without adequate grounds, and contended he was still on probation. (Para 4-6)
Findings of Court:
The Company failed to prove its dismissal was with just cause; the Claimant was still considered a probationary employee when dismissed. (Paras 30-34)
Issues
: Whether the dismissal was warranted based on performance during the probationary period. (Para 10)
Ratio Decidendi:
The failure to provide necessary warnings or appraisals about performance invalidates the dismissal as justifiable. (Paras 32-35)
Result:
The Claimant was reinstated and entitled to back wages totaling RM42,750.00. (Para 43)
AWARD
[1] This is a reference from The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as "the IRA ") in respect of the dismissal of Kamaliswarran a/l Krishnan (hereinafter referred to as "the Claimant") by his employer, BP Engineering Solutions Sdn Bhd (hereinafter referred to as "the Company") on 1 October 2020.
[2] It was mutually agreed by all parties that this case be heard together with Case No: 9/4-2096/21 (Vignes a/l Rajandram v. BP Engineering Sdn Bhd). As these two cases had not been consolidated but only heard together, this Court will hand down separate and distinct Award for each individual case which highlight the distinct facts of each of the cases.
[3] This Court has considered the following cause papers and documents in handing down this Award, namely:
(a) the Claimant's Statement of Case dated 14 October 2021;
(b) the Company's Statement In Reply dated 12 January 2022;
(c) the Claimant's witness statement (Kamaliswarran a/l Krishnan) marked as "CLWS1-K";
(d) the Company's witness statement (Tong Sin Chin) marked as "COWS1-K";
(e) the Company's witness statement (Ragandaran a/l Mani) marked as "COWS2-K";
(f) the Claimant's bundle of documents marked as "CLB1-K"; and
(g) the Company's bundle of documents marked as "COB1-K".
Brief Facts Of The Case
[4] The Company is a registered company in Malaysia having its address at No 127, Jalan Mutiara Emas 2A, Taman Mount Austin, 81100 Johor Bahru, Johor. Boustead Projects is an Engineering Division of Boustead Singapore Limited.
[5] Pursuant to a letter dated 6 May 2020 (hereinafter referred to as "the Letter of Appointment"), the Claimant joined the Company as a Safety Supervisor effective from 6 May 2020 and received a basic monthly salary of RM4,500.00, and was subjected to a three-months probationary period.
[6] Vide a letter dated 17 August 2020 (hereinafter referred to as "the First Letter of Termination"), the Company intended to inform the Claimant that his employment would not be confirmed and that he would be given a one-month notice with effect from the date of the letter, making 16 September 2020 as his last date of employment. The Claimant's intended dismissal was then reviewed by the Company's Project Director Mr Tong Sin Chin (hereinafter referred to as "COW1") and the Claimant was then transferred to another site project at BD Kulim somewhere in August 2020. However, by way of a letter dated 31 August 2020 (hereinafter referred to as "the Second Letter of Termination"), the Company invoked cl 3 of the Letter of Appointment and terminated the Claimant's employment by giving a one-month notice, making 30 September 2020 as his last date of employment.
The Claimant's Case
[7] In his Statement of Case, the Claimant states that:
(a) he was issued with a letter of employment as a permanent employee status;
(b) the Company may extend the three months' probationary period if his performance is unsatisfactory as provided under the Letter of Appointment;
(c) he had performed excellently and had completed the three months' probationary period on 5 August 2020 without any disciplinary record, warning or counselling in respect of his work performance issues;
(d) the Company did not conduct any performance appraisal in respect of his work performance issues upon the completion of his three months' probationary period;
(e) the Company had dismissed him in accordance with cl 3 of the Letter of Appointment without providing any reasons;
(f) he wrote a letter dated 25 September 2020 (hereinafter referred to as "the Claimant's Reply") to COW1 to protest as he was unhappy with the Company's action of dismissing him but did not receive any reply from the Company; and
(g) his employment was not extended by the Company on the grounds of unsatisfactory performance.
The Company's Case
[8] In its Statement In Reply, the Company states that pursuant to cl 3 of the Let
