The dismissal of a probationary employee requires just cause; erroneous conclusions on probation status can constitute grounds for quashing an award.

Azmel Maamor J:

This is an application by the applicant by way of an originating motion for an order of certiorari to quash the award of the Industrial Court vide Airspace Management Services Sdn. Bhd. v. Col (B) Harbans Singh Chinger Singh [1998] 2 ILR 1115 dated 5 August 1998 which ruled that the dismissal of the applicant by the 1st respondent, Airspace Management Services Sdn. Bhd. was with just cause and excuse.

The facts of the case are briefly as follows. The applicant was appointed as the deputy project manager of the 1st respondent's company with effect from 14 July 1994. It was contended by the 1st respondent, though strenuously refuted by the applicant, that the applicant was appointed on probation for a period of six months. After the expiry of the six months period his probation was further extended for another six months period as the applicant was alleged to have failed to carry out his duties properly and also had abused his position as an employee of the 1st respondent company. As the 1st respondent was still not satisfied with the performance of the applicant and insisting that the applicant was still on probation, the 1st respondent issued a letter to the applicant dated 14 July 1995 terminating his services. Alleging that he had been wrongfully dismissed the applicant made representations to the Industrial Relations Department under s. 20(1) of the Industrial Relations Act 1967 and the matter was subsequently referred to the Industrial Court for an award. At the conclusion of the inquiry the chairman of the Industrial Court made a finding that the dismissal of the applicant by the 1st respondent was with just cause and excuse and as such the applicant's claim was dismissed. It was against this award of the Industrial Court that this application was made to this court by the applicant.

It was alleged by the applicant that the Industrial Court in arriving at the award had committed several errors of law. Firstly, the Industrial Court held that the applicant was still on probation when he was dismissed by the 1st respondent. Is this finding correct. The Industrial Court placed great reliance on a letter of offer dated 13 July 1994 purportedly issued by the 1st respondent to the applicant. Attached to the letter of offer was another document which stated the terms and conditions of service of the applicant and this included a provision which required the applicant to be on probation for a period of six months before he could be confirmed. It is to be noted that at the end of the letter of offer there was a clause stating "I hereby accept the offer and agree to the terms and condition" to be signed by the applicant. But it remained unsigned by the applicant. At the inquiry the applicant stated that he did not receive this letter of offer at all. He was interviewed by COW1 (Arthur Reynolds) on 14 July 1994. Resulting from that interview the applicant was accepted verbally to work in the 1st respondent company without any letter of offer. The applicant alleged that there was no letter issued to him. That letter of offer was falsely created to give the impression that he was taken in on a probation for six months' period. Even the date of the letter of offer was irregular. It was dated 13 July 1994 when in fact he was only interviewed on 14 July 1994. Despite all these facts the Industrial Court arrived at the conclusion that the applicant had received the letter of offer. In the award the chairman of the Industrial Court said:

He, however, did not dispute he was paid and had worked according to the terms and conditions of CO1 for several months. Based on those facts this Court cannot disregard a document which is in writing and ignore it in preference to a verbal agreement.

Obviously the learned chairman had misconstrued the issue. The issue was whether the letter of offer (exh. CO1) was received by the applicant. To b