The dismissal of a probationary employee for unsatisfactory performance is lawful if the employer provides reasonable opportunities for improvement and the decision is not arbitrary.

Reference

[1] This is a reference by the Director General of Industrial Relations Department Malaysia dated 2 March 2022 pursuant to s 20(3) of the Industrial Relations Act 1967 which was received by the Industrial Court of Malaysia on 8 March 2022 arising out of the alleged dismissal of Hii Hiong Teck (hereinafter referred to as "the Claimant") by Lee's Frozen Food Sdn Bhd (hereinafter referred to as "the Company") on 3 June 2021.

Factual Backgrounds

[2] The Director General of Industrial Relations' reference dated 2 March 2022 in this case required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 3 June 2021 and was received by the Industrial Court on 8 March 2022. The dispute herein is over the unlawful dismissal of the Claimant from the employment by the Company with effect from 3 June 2021 without just cause or excuse.

[3] The Claimant commenced his employment with the Company on 2 December 2019 as Regional Sales Manager (Northern) - Job Grade M2 vide letter of offer dated 6 November 2019 with a probation period of six (6) months from the date of commencement of work with a basic salary of RM6,000.00 per month and car allowance of RM1,000.00 per month (at pp 1-6 of CLB-1). Upon confirmation, the period of written notice shall be one month or salary in lieu of notice during the probation period and the period of written notice shall be two months or salary in lieu of notice after probation period.

[4] On 27 May 2020, where the Claimant's probation period will be ended on 1 June 2020, the Company has informed the Claimant that the Company has extended his probation period until the announcement from Government that Conditional Movement Control Order (CMCO) is lifted. The Company also informed the Claimant that they will assess and evaluate the Claimant's performance within two (2) weeks based on the end of CMCO i.e. on 9 June 2020 vide letter informing extension of probation period dated 27 May 2020 (at p 8 of CLB-1).

[5] On 2 October 2020, whereby the Claimant's probation period was supposed to come to an end since CMCO was lifted, the Company sent an email to the Claimant informing to further extend his probation period until the completion of Recovery Movement Control Order (RMCO) (email dated 2 October 2020 at p 9 of CLB-1).

[6] On 10 February 2021, the Company informed the Claimant that he was placed under a Performance Improvement Plan (PIP). On the PIP sheet signed by the Claimant, Jane Law and Andrew Khor on 11 February 2021, it was stated that the PIP is to define serious areas of concern, gaps in the Claimant's work performance, reiterate Company's expectations and allow him to demonstrate improvement and commitment as a Regional Northern Manager (at pp 10-13 of CLB-1). The PIP was executed for about three (3) months which was from 10 February 2021 until 30 April 2021. There would be monthly reviews conducted with the Claimant on his performance whereby the Claimant would be served a Warning Letter in the event he is not successful in the monthly reviews.

[7] Thereafter on 11 February 2021, the Company had redesigned the Claimant to a new position as Sales Manager (Northern) with a reduced car allowance of RM500.00 per month since April 2020 which was reflected in the Claimant's