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2023 MarsdenLR 408
INDUSTRIAL COURT KUALA LUMPUR
VERONICA RAJANDRA – Appellant
Versus
OROAPAC MALAYSIA SDN BHD – Respondent
Award No: 2245 of 2023 [Case No: 21/4-1235/21]
The employer has the prerogative to assess a probationer's suitability for confirmation and can terminate employment if performance is unsatisfactory, provided the dismissal is justified and not arbitrary.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of probationary employee - Claimant's employment terminated due to unsatisfactory performance during probationary period - The court emphasized that the employer has the prerogative to assess the suitability of a probationer and that the dismissal must be for just cause. (Paras 34, 35, 40, 88)
(B) Burden of Proof - The burden rests on the employer to demonstrate that the employee was not suitable for the role, and this must be proven on a balance of probabilities. (Paras 22, 40)
(C) Standard of Proof - The standard for dismissal cases is the civil standard of proof based on a balance of probabilities, not beyond reasonable doubt. (Paras 23, 30)
(D) Rights of Probationers - An employee on probation enjoys similar rights to a confirmed employee but can be terminated without the need for extensive warnings if performance is unsatisfactory. (Paras 24, 26, 27)
Facts of the case:
The Claimant was employed as a Digital Marketing Planning Manager for a fixed term and placed on probation. Following performance reviews and extended probation, the employer concluded that the Claimant's performance was unsatisfactory and terminated her employment. (Paras 6, 8, 15, 34)
Findings of Court:
The court found that the Claimant's non-confirmation was justified based on multiple assessments of her performance, which did not meet the Company's expectations. (Paras 88, 40)
Issues: The main issues included whether the dismissal was with just cause and whether the Claimant was given adequate opportunity to improve her performance. (Paras 34, 35)
Ratio Decidendi: The court ruled that the employer's assessment of the Claimant's performance was reasonable and that the dismissal was a bona fide exercise of discretion based on unsatisfactory performance. (Paras 88, 40)
Result: Claim dismissed.
| Table of Content |
|---|
| 1. reference and cause papers considered. (Para 1 , 2 , 3) |
| 2. claimant's employment details and terms. (Para 5 , 6 , 7 , 8) |
| 3. claimant's onboarding and support issues. (Para 14 , 18 , 19) |
| 4. court's role in termination assessments. (Para 21 , 22 , 23) |
| 5. burden of proof in dismissal cases. (Para 24 , 25 , 26) |
| 6. probationary employment principles. (Para 30 , 32) |
| 7. company's justification for non-confirmation. (Para 35 , 37 , 39 , 40) |
| 8. assessment criteria for performance. (Para 46 , 48 , 50) |
| 9. performance improvement plan discussions. (Para 58 , 62) |
| 10. termination meeting and performance evaluation. (Para 66 , 70) |
| 11. final decision and dismissal of the case. (Para 88) |
[1] This is a reference dated 17 March 2021 made by the Honourable Minister of under s 20(3) of the IRA 1967 ("the Act") arising out of the dismissal of VERONICA A/P RAJANDRA (hereinafter referred to as "the Claimant") by OROAPAC MALAYSIA SDN BHD (hereinafter referred to as "the Company") on 12 May 2020.
Cause Papers, Witness Statements And Documents
[2] In the course of arriving at the decision in this full award, this court had considered the following cause papers and documents filed by the parties in this case as such:
(a) Statement of Case dated 2 August 2021; ("SOC")
(b) Statement in Reply dated 23 August 2021; ("SIR")
(c) Rejoinder dated 3 September 2021; ("Rejoinder")
(d) Claimant's Bundle of Document ("CLB-1");
(e) Company's Bundle of Document 1 ("COB-1");
(f) Supplementary Claimant's Bundle of Documents ("CLB-2");
(g) Company's Bundle of Document 2 ("COB-2");
(h) Company's Witness Statement ("COWS-1")
(i) Amended Claimant's Witness Statement ("CLWS-1");
(j) Note of Proceedings on 22 August 2022; ("NP 22 August 2022")
(k) Note of Proceedings on 25 August 2022; ("NP 25 August 2022")
(l) Note of Proceedings on 6 March 2023; ("NP 6 March 2023")
(m) Note of Proceedings on 7 March 2023; ("NP 7 March 2023")
(n) Note of Proceedings on 29 May 2023. ("NP 29 May 2023") Witnesses Produced
[3] The company called its former Marketing Strategy Director, Bhaskar Thakur ("Bhaskar" / [COW 1]) as its sole witness whose Witness Statement is marked as COWS - 1.
[4] The Claimant was the witness for the Claimant's Case ("Veronica" / [CLW 1]). Claimant's Witness Statement is marked as CLWS - 1.
Facts
[5] The employer in this case is a company set up in Malaysia to manage the "Oppo Brand" for the Asia Pacific [APAC] region. Oppo is a well-known brand for amongst others mobile phones.
[6] The Claimant joined the services of Oppo on 10 December 2019 vide a Service Agreement dated 10 December 2019 wherein the Letter of Offer was annexed ["Employment Contract"] [refer: pp 16-34, CLB1]. The Claimant's position in Oppo was Digital Marketing Planning Manager, under the Integrated Marketing Communication ("IMC") Team (APAC Region) ("DMP").
[7] As a DMP, the claimant handled nine countries in the APAC region ie Malaysia, Thailand, Singapore, Vietnam, Indonesia, Philippines, Hong Kong, Taiwan and Macao ("Local Markets"). The Claimant's salary was RM12,000.00 per month with a fixed bonus of RM28,800.00 per annum and was given other benefits as detailed in the Employment Contract.
[8] It is undisputed that the Claimant's Employment Contract was for a fixed term of 3 years ie from 10 December 2019 until 10 December 2022. Upon joining the company, the Claimant was placed on a probationary period for 3 months commencing from 10 December 2019 to 9 March 2020. The Claimant's immediate superiors were Charles (Marketing Director) and Bhaskar (Marketing Strategy Director) [COW 1].
Performance Review
[9] On 9 March 2020, a performance review meeting was held between the President of OPPO APAC - Jimmy, Charles and Bhaskar from the Company, and the Claimant. [See NP 7 March 2023, p 16 Line 32-35]
[10] Further, on 10 March 2020, an Extension of Probation Meeting ("EPM Meeting") was held between Bhaskar, Charles and Shangeetha from the Company, and the Claimant. The Claimant was informed that her probation has been e
