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2020 MarsdenLR 2689
INDUSTRIAL COURT MALAYSIA KUALA LUMPUR
KUMARESEN KARUPIAH – Appellant
Versus
REIN PACKAGING INDUSTRIAL SDN BHD – Respondent
Award No: 1000 Of 2020 [Case No: 14/4-2055/19]
The dismissal of an employee on probation requires just cause and fair procedures, failing which the dismissal is deemed invalid.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal during probation – The Claimant, dismissed by the Company on grounds of poor performance after serving three warning letters within a month, alleged unfair dismissal – The Company failed to substantiate allegations of misconduct brought forth post-termination – Provided no fair opportunity for improvement during probation – Court found dismissal without just cause or excuse. (Paras 20-57)
(B) Legal burden of proof – The burden of proof lies with the employer to establish just cause for dismissal, particularly in cases involving probationers – Dismissal must be based on genuine evaluations and opportunities for employee improvement. (Paras 21, 32-49)
Facts of the case: The Claimant was employed as a Supervisor, with performance issues leading to three warning letters before an abrupt dismissal. The Company claimed poor performance as grounds for dismissal but later introduced allegations of misconduct not previously cited. (Paras 6-16)
Findings of Court: The Court ruled that the dismissal lacked just cause and failed to follow fair procedures, with insufficient time given to rectify performance issues. (Paras 56-57)
Issues: Whether the dismissal constituted just cause or excuse, and the adherence of the Company to procedural fairness. (Paras 25-28)
Ratio Decidendi: An employee on probation still retains rights against arbitrary dismissal; the employer must offer fair assessment and opportunity for improvement. (Paras 23, 44-45)
Result: The dismissal was found to be invalid, and the Claimant’s claims were allowed.
Reference:
[1] This is a reference by the Honourable Minister of Human Resources under s 20(3) of the Industrial Relations Act 1967 [Act 177] (" IRA ") for an award in respect of a dispute arising out of the dismissal of Kumaresen a/lKarupiah ("the Claimant") by Rein Packaging Industrial Sdn Bhd ("the Company") on 24 May 2019.
[2] The following documents and cause papers in handing down this Award are as follows:-
(i) Statement of Case dated 2 December 2019;
(ii) Statement in Reply dated 18 December 2019;
(iii) Rejoinder dated 3 February 2020;
(iv) The Company's Bundle of Documents - COB;
(v) The Company's Written Submission filed on 10 July 2020; and
(vi) The Claimant's Written Submission filed on 15 July 2020.
[3] The Company is represented by Ms Priya Wathy Ramara, the Human Resources Executive.
[4] The Company called two (2) witnesses, viz:-
a) Ng Kar Fai - COW1; and
b) Ooi Sheue Lee - COW2.
[5] The Claimant testified as the sole witness in this case.
Background Facts
[6] The Claimant was appointed by the Company as a Warehouse Cum Admin Supervisor with effect from 1 April 2019 by way of a Letter of Appointment dated 21 March 2019. Pursuant to the terms in the Letter of Appointment, the Claimant was informed that his probation period is 6 months, subject to, if necessary, a further extension which is to be decided by the Management.
[7] The Claimant was earning a monthly gross salary of RM4,750.00 (Basic salary RM4,500.00; Transport allowance RM200.00 and Telephone allowance RM50.00).
[8] The Company specializes in manufacturing packaging materials for small and medium scale clients.
[9] The Claimant was in charge of handing administrative duties and handling logistics activities of the Company, which includes dealing with and handling outsourced lorry drivers who transport the Company's products to client companies. The Claimant also manages the control of inventory of the Company's warehouse.
[10] On 16 May 2019, the Claimant received three (3) warning letters stating, amongst others, that he was not performing according to his job scope, was unable to prepare certain reports and was unable to submit certain documents to the Company.
The text reads as follows:
"1ST WARNING LETTER
15 April 2019
PRIVATE AND CONFIDENTIAL
Dear Mr Kumaresh
Re: First official warning
Stated in job scope you have to ensure the chop signed DO must submit on time. However in April 2019 after you come in, this issue was not being follow up closely.
In fact, numerous reminder given but you did not do as what supposed to, even when you in doubt, you also did not voice up to ask and seek assistant from others."
"2ND WARNING LETTER
15 May 2019
PRIVATE AND CONFIDENTIAL
Dear Mr Kumaresh
Re: Second official warning,
As promised by you, April 19 lorry claimed report should submit before 7 May 2019. After you claimed that you do not know how to do the report (even training being given). Another section of training was given again to refresh. And subsequently you promised to submit on 14 May 2019, after numerous time of reminder, you still give many empty promises. Until today report not ready."
"3RD WARNING LETTER
16 May 2019
PRIVATE AND CONFIDENTIAL
Dear Mr Kumaresh,
On 9th of May, customer service requested to receive chopped/signed DO from warehouse. You ignore them. And later you reply by submit on 13 May 2019. On 13 May 2019, after reminder only you submit the chopped sign DO and we found that about 50% of the total 450 do's still not return and you are unable provide the details."
[11] Before the third warning letter was issued to the Claimant, the Claimant was asked to attend a counselling session conducted by COW2 and S Kavitha on his failure to submit stamped and signed delivery orders on time, to arrange delivery to the customers and to submit transport claims for the month of April 2019.
[12] At the end of the session, the Claimant refused to sign on the Employee Counselling Form as requested. The Claimant informed COW2 and S. Kavitha that he wanted to give 24 hou
