AWARD

The reference of the Honourable Minister of Human Resources, Malaysia is regarding the dismissal of the claimant by the company on 5 May 2000.

Briefly the facts are as follows:

The company is a company dealing with the manufacturing of vehicle rims. The claimant commenced employment with the company on 18 October 1999 as the production management manager of the company (COB pp. 8 to 10). While still under probation, the claimant was appraised regarding his performance on 12 February 2000. The Claimant was not confirmed. On 5 May 2000, the company terminated the services of the claimant as the company was dissatisfied with his performance (see Termination of Service notice in COB p. 24).

As correctly submitted by learned counsel for the claimant, the claimant even though he is a probationer, is a workman under the Industrial Relations Act 1967 (see the Court of Appeal case, Khaliah bte Abbas v. Pesaka Capital Corp Sdn Bhd, [1997] 1 MLJ 376 and High Court case, Intrakota Komposit Sdn. Bhd. v. Hanim Abd. Hamid .

The issue is whether the claimant is dismissed with just cause or excuse by the company (see Goon Kwee Phoy v. J & P Coats (M) Bhd , [1981] 2 MLJ 129 at p. 136).

In a dismissal case resulting from poor performance, the following will have to be established by the company:

a. the poor performance of the claimant;

b. the claimant was warned about his poor performance and was accorded sufficient opportunity to improve; and

c. the claimant failed to sufficiently improve his performance

(see Associated Pan Malaysia Cement Sdn. Bhd. v. Mohd. Khairul Bahari Mohd. Jamil, Award No. 110 of 1991).

a. Whether There Was Poor Performance

In para. 4 of the company's Statement in Reply ("paragraph 4") the company averred that the company had on 18 September 1999 made a performance appraisal of the claimant. How Soo Fatt (COW1), the company's executive director and factory/plant manager, amended the date in Court from 18 September 1999 to 12 February 2000. Learned counsel for the company submitted that COW1 had lied on oath regarding the date and this reflects badly on the credibility of COW1. However, the Court does not think that this amendment on the date would in any way give rise to serious questions regarding COW1's credibility. It is obvious that the date 18 September 1999 is a careless mistake because the evaluation report (COB pp. 18 to 21) signed by COW1 is dated 12 February 2000 and the claimant himself told the Court that his appraisal was done on 12 February 2000. In any case, it would be illogical to have the date of appraisal as 18 September 1999 when the Claimant commenced work with the company only on 18 October 1999. In view of this, the Court allowed the oral amendment made by learned counsel for the company in para. 4 regarding the date.

In the amended para. 4, the company stated that when it made the performance appraisal of the claimant on 12 February 2000, the company discovered that:

a) The claimant was not independent in carrying out his duties and had to be supervised at all times.

b) The claimant was not responsible in carrying out his duties inter alia he had failed to monitor the quality of the products that were being manufactured.

c) The claimant did not reprimand his subordinates who were not carrying out their duties and failed to inform his immediate superior of the conduct at his subordinates.

d) The claimant was unable to plan production output.

e) The claimant had at all times pushed his responsibilities to other employees when a problem was to occur in the production unit.

COW1 gave evidence to support the above averments in the Statement in Reply. He testified that he prepared an evaluation report on the claimant on 12 February 2000 (see performance appraisal for staff in COB pp. 18 to 21). The claimant was given 19.3 points out of 100 points.

Even though learned counsel for the claimant submitted that the claimant's marks are within the "Acceptable" performance column, the