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2023 MarsdenLR 2091
INDUSTRIAL COURT IPOH
THOMAS WILSON LOWRIE – Appellant
Versus
FAIRVIEW INTERNATIONAL SCHOOL IPOH SDN BHD – Respondent
Award No: 1502 Of 2023 [Case No: 10/4-1353/22]
The employer has the right to terminate a probationary employee's contract based on performance assessments, provided the process is fair and not capricious.
Headnote:(A) Industrial Relations Act 1967 - Sections 20(3) and 29(d) - Dismissal of probationary employee - Claimant terminated for poor performance at the end of the Performance Review Period - Employer's right to assess suitability and performance during probation affirmed - Court found dismissal was justified, with just cause and excuse. (Paras 9, 31, 63, 70)
(B) Burden of Proof - Employer bears the burden to prove dismissal was with just cause - Standard of proof is on a balance of probabilities, not beyond reasonable doubt. (Paras 13, 14, 63)
(C) Ex-Parte Hearing - Court may proceed with ex-parte hearing if a party fails to appear without reasonable cause, ensuring all evidence is evaluated before making a decision. (Paras 25, 26)
Facts of the case:
The Claimant was employed as Acting Principal with a fixed-term contract, which included a six-month performance review period. His contract was terminated after the review period due to unsatisfactory performance, despite being given guidance and opportunities to improve. (Paras 3, 5, 31)
Findings of Court:
The Claimant was found unsuitable for the role, having not met performance expectations or KPIs, and the Company acted within its rights to terminate his contract. (Paras 63, 70)
Issues: The main issues included whether the Claimant's dismissal was justified, if he was given sufficient opportunity to improve, and whether the Company acted capriciously. (Paras 23, 40)
Ratio Decidendi: The Court ruled that the employer's assessment of the probationer’s performance is valid, and as long as the assessment is not capricious or arbitrary, the Court will not interfere with the employer's decision. (Paras 66, 70)
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. reference and factual background of dismissal case. (Para 1 , 2 , 3 , 4 , 5) |
| 2. claims and counterclaims regarding contract termination. (Para 6 , 7 , 8) |
| 3. legal framework and standard for dismissals under s 20. (Para 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22) |
| 4. key questions for the court's determination. (Para 23 , 24) |
| 5. ex-parte hearing procedures and implications. (Para 25 , 26 , 27 , 28 , 29 , 30) |
| 6. assessment of performance and contract review. (Para 31 , 32 , 33 , 34 , 35 , 36) |
| 7. rights of probationers and grounds for dismissal. (Para 37 , 38 , 39 , 40) |
| 8. evidence and findings on poor performance. (Para 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51) |
| 9. mentoring and support provided to the claimant. (Para 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61) |
| 10. justification for termination based on performance evaluation. (Para 62 , 63) |
| 11. court's discretion in assessing employer's prerogative. (Para 64 , 65 , 66 , 67 , 68) |
| 12. conclusion and dismissal of the claimant's case. (Para 69 , 70) |
Reference
[1] This is a reference made by the Director General of Industrial Relations Malaysia dated 12 September 2022 pursuant to s 20(3) of the Industrial Relations Act 1967 which was received by the Industrial Court of Malaysia on 14 September 2022 arising out of the alleged dismissal of Thomas Wilson Lowrie (hereinafter referred to as "the Claimant") by Fairview Internasional School Ipoh Sdn Bhd (hereinafter referred to as "the Company") on 30 November 2021.
Factual Backgrounds
[2] The dispute referred by the Director General of Industrial Relations Malaysia to this division of the Industrial Court under s 20(3) of the Industrial Relations Act 1967 arising out from the alleged unjust termination of the Claimant from Fairview Internasional School, Ipoh on 30 November 2021.
[3] Fairview Internasional School Ipoh Sdn Bhd (the Company) employed the Claimant as the Acting Principal of the Fairview International School campus in Ipoh with a three (3) years fixed-term contract commencing 17 May 2021 until 15 May 2024 vide a Letter of Appointment dated 6 April 2021 (at pp 100-105 of COB-1). However, the Claimant only commenced employment with the Company on 31 May 2021. As such, the employment contract of the Claimant was revised to end on 30 June 2024 vide a letter dated 31 May 2021 (at p 107 of COB-1).
[4] Under cl 2 of the Claimant's contract specified that the Contract Review Period would be six (6) months and that the Company would conduct a review of the Claimant's performance before or by end of the six (6) months. The Contract Review Period is essentially the probation period, which is enable the Company to assess the Claimant's performance and his suitability for his position with the Company, then the Company reserved the right to extend the Review Period or terminate the contract.
[5] The Claimant's contract was terminated on 30 November 2021 at the end of the six (6) months Performance Review Period after the Company found out that the Claimant was unsuitable for his position and was unable to fulfil the requirements of the position. Vide a letter of termination dated 16 November 2021 (at p 111 of COB-1) the Company is of the view that the Claimant's work performance is not satisfactory and he is unsuitable for the position as the Company has yet to see any significant improvements to his work performance as per the Company's expectations as notified to the Claimant earlier. Accordingly, the Claimant's employment with the Company shall cease at the end of his Contract Review Period on 30 November 2021.
[6] The Claimant contends that as a contracted employee he had the right to be employed until his contract expired on 30 June 2024. The Company asserts that at the time of his dismissal, the Claimant had only completed the first six (6) months of his contract, which was the Performance Review Period or probation period. The right to be employed as per the full duration provi
