AWARD

The dispute between the claimant and the company arose out of the dismissal of the claimant by the company on 31 March 1998.

The claimant commenced employment with the company as an applications assistant on 1 July 1997. He was required to undergo a probationary period of three months from the date of his commencement of employment. On 24 September 1997 the company extended his probation period "to a further period of up to three months effective 1 October 1997". And on 12 December 1997 the company once again extended the claimant's probation period for "another three more months effective from 1 January 1998". The claimant in his statement of case alleges that the company summarily terminated him without just cause or excuse and with immediate effect by letter dated 20 March 1998 but the company in response states that the claimant's employment was in fact terminated due to non-confirmation vide their letter dated 21 January 1998 (COE1) as claimant's work performance was below expectations. The claimant's last day was to be 23 January 1998 but following appeals by claimant to remain in employment until the end of March as he had another job offer then, the company agreed to let him remain. Subsequently the letter dated 20 March 1998 (CL4) was issued to inform claimant that his last day with the company would be 31 March 1998.

Was The Claimant A Probationer.

It was argued by Mr A Balasubramaniam from the Kongres Kesatuan Sekerja Malaysia (MTUC) on behalf of the claimant that because the claimant had worked beyond his probationary period, he should be regarded as a permanent employee. Mr Balasubramaniam was unable to cite any authorities in support of his proposition.

The court finds no merit in this argument.

The Federal court in the cases of KC Mathews v. Kumpulan Guthrie Sdn. Bhd[1981] 1 MELR 1, [1981] 2 MLJ 320; [1981] CLJ 62 and V Subramaniam & Ors v. Craigielea Estate had quoted with approval from the decision of Das Gupta J in the case of Express New Paper Ltd v. Labour court & Anor AIR 1964806 as follows:

In the recent case of Abdul Majid Hj Nazardin & Ors v. Paari Peruma l [2002] 1 MELR 1, [2002] 2 MLJ 640 the court of Appeal had distinguished the cases of KC Mathews and V Subramaniam & Ors on the facts. In that case, Gopal Sri Ram, JCA held that:

As such the law on whether a probationer remains a probationer after the expiry of the probation period is clear. He will remain a probationer even after the probation period has lapsed unless the employer has, by his conduct, treated the probationer as if he was a confirmed employee.

In the instant case, there is no evidence that even remotely suggests that the company had treated the claimant as a confirmed employee. Conversely the number of letters which the company served on the claimant to extend his period of probation would show that the company had, at all times, regarded and treated the claimant as a probationer. As such, the claimant's contention that he was a confirmed employee at the time of termination fails.

The first question to consider is this: was there a dismissal within the meaning of s. 20 of the Industrial Relations Act 1967? The relevant portion of the company's letter to the claimant reads as follows: