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2023 MarsdenLR 2866
INDUSTRIAL COURT IPOH
KOGILAVANI GOPAL – Appellant
Versus
ARNOLD ANDREW & CO – Respondent
Award No: 1372 Of 2023 [Case No: 10/4-711/20]
The court ruled that a probationary employee can be dismissed without just cause if their performance is unsatisfactory, affirming the employer's prerogative to assess suitability.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Claimant alleged unlawful dismissal by Company - Court evaluates dismissal for just cause and excuse - Absence of written contract of employment - Claimant's performance during probationary period deemed unsatisfactory; excessive medical leave taken - Termination found justified by Company due to ongoing issues with attendance and performance. (Paras 25, 41, 62, 73)
(B) Employment Law - Rights of probationary employees - Court affirms that probationers do not have the same rights as confirmed employees but are entitled to fair treatment - Dismissal must be based on reasonable satisfaction of performance. (Paras 32, 58, 70)
Facts of the case:
Claimant employed as Personal Assistant without formal appointment, dismissed after taking numerous medical leaves and failing to perform duties adequately. Claimant contended dismissal was unjust and sought reinstatement.
Findings of Court:
Court found no contract of employment, upheld Company's decision to terminate based on performance issues during probation.
Issues: Was there a dismissal? If so, was it with just cause or excuse?
Ratio Decidendi: Court held that the Company acted within its rights to terminate the Claimant's employment based on performance evaluation, confirming that probationers are not entitled to the same protections as confirmed employees.
Result: Claimant's claim dismissed.
| Table of Content |
|---|
| 1. alleged dismissal details and background. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. company's case and arguments against the claimant. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 3. claimant's case and arguments for wrongful termination. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24) |
| 4. court's analysis of the law regarding dismissals. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34) |
| 5. issues identified by the court. (Para 35 , 36 , 37) |
| 6. evidence and documents referenced. (Para 38 , 39 , 40) |
| 7. evaluation of evidence regarding probationary status. (Para 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61) |
| 8. court's finding on just cause for dismissal. (Para 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70) |
| 9. final conclusions on the case. (Para 71 , 72 , 73) |
| 10. court's order dismissing the claimant's case. (Para 74) |
Reference
[1] This is a reference by the Honourable Minister of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 dated 1 July 2020 arising out of the alleged dismissal of Kogilavani A/P Gopal (hereinafter referred to as "the Claimant") by Arnold Andrew & Co (hereinafter referred to as "the Company") on 3 July 2019.
Factual Backgrounds
[2] The Ministerial reference in this case required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 3 July 2019 and was received by the Industrial Court on 6 July 2020. The dispute herein is over the unlawful dismissal of the Claimant from the employment by the Company with effect from 3 July 2019 without just cause and excuse.
[3] The Claimant was employed as a Personal Assistant by the Company on 11 March 2019 without any letter of appointment given by the Company. As a Personal Assistant to Mr Arnold Andrew P Anthony Muthu (the Managing Director of the firm), she also handles Human Resources functions that are interviews, attendance, leaves, implementation of policies etc. Prior to the dismissal, the Claimant last drawn salary was RM4,000.00 per month.
[4] The Claimant had complained and suffered of a back pain from a slip disc and hence could not bear perform the bare minimum at work evidences by her numerous medical leaves she obtained for a period of 2 May 2019 - 3 May 2019, 24 June 2019 - 25 June 2019, 27 June 2019 and 28 June 2019 - 1 July 2019 in exh 1 in COB-1 enclosed herewith. The Claimant had also taken an unpaid leave on 21 May 2019 which was not approved by the Company. The Claimant's lack of focus and constant pain resulted in the Company exercising its discretion to instruct that the Claimant to rest at home.
[5] The Company had paid her full salary for the month of June 2019 being the period of time in which the Claimant was at home without medical leave on the basis of compassion and generosity. Thereafter the Company by looking at the entire situation as a whole, the Company decided to let go off the Claimant and informed her that she will not be retained in her employment wherein she was asked to look for a job elsewhere. Based on the following reasons, the Company offered the Claimant for a month salary to leave the Company as and the Company had no choice to let go off the Claimant:
(i) Taken excessive number of medical leaves without informing the Company and/or the Managing Director; and
(ii) Did not prepare the letter of offer knowing it was under the purview of the Claimant to do so.
[6] Thereafter, the Claimant wrote to the Company vide her letter dated 8 July 2019 (at p 1 of CLB-1) to inform the Company that her termination is unjust and she is not accepting the one-month salary in lieu of termination. In the same letter, the Claimant point out her dissatisfaction of being denying her entitlement for any annual leave and was not given any written contract of employment. In view of the foregoing, she seeks necessary legal remedies for wrongful termination of her employment and unlawful two days' salary deduction.
[7] Since the
