An employer must provide warnings and opportunities for improvement before terminating a probationary employee for poor performance; dismissal without just cause or procedural fairness is unjust.

Reference

[1] This is a reference made under s 20(3) of the IRA 1967 ("the Act") arising out of the dismissal of DAVID GERARD MOK CHEE KEONG (hereinafter referred to as "the Claimant") by DK-MY PROPERTIES SDN BHD (hereinafter referred to as "the Company") on 16 June 2020.

Factual Matrix

[2] By a Letter of Appointment dated 6 September 2019, the Claimant was offered an employment with the Company with effect from 2 December 2019 as the Chief Financial Officer, reporting to the Managing Director.

[3] The Letter of Employment inter-alia, stipulated that the Claimant was entitled to the following remunerations:

Basic salary: RM24,000.00 per month

Car allowance: RM2,000.00

Petrol allowance: RM400.00

Telephone allowance: RM100.00

[4] It is also provided that the claimant would be placed on a probation for a period of six (6) months from the commencement date of the employment, after which the Company may extend, terminate or confirm the claimant's employment, all of which must be informed to the claimant in writing, at the discretion of the Company and that unless the claimant is informed in writing, he will continue to serve as a probationer.

Brief Facts/Chronology Of Events

[5] 18 March 2020: the first day of the Movement Control Order (MCO), the Claimant received a Notice of Termination dated 17 March 2020 from the Company informing the Claimant that he is being given 3 months' notice for the termination of his employment with the Company and that his last day of service would be on 16 June 2020 (see p 11 of CLB-1).

[6] 9 May 2020: Due to the Movement Control Order, the Company was closed until 3 May 2020 and it was only reopened on 4 May 2020. Thereafter during the week, the Claimant approached the Chief Executive Officer, Mr Khoo Thian Shyang, to inquire regarding the Notice of Termination dated 17 March 2020.

[7] 2 June 2020: Since there was no response from the Chief Executive Officer or the Company, the Claimant then wrote a letter dated 2 June 2020 to the Company to seek for an explanation on how the Claimant's performance has not met the Company's expectation, especially since the Claimant had not received any notices or warnings from the Company regarding his performance before the issuance of the Notice of Termination (see p 12 of CLB-1). The Company, however, failed to reply to the Claimant's letter dated 2 June 2020 or provide any explanation.

[8] 15 June 2020: Nevertheless, the Claimant attended a meeting with the CEO's, Mr Khoo Thian Shyang, MD's PA Mr Tham Yau Keong and a personnel from the Company's Human Resources Department, Mr Vanishiya Nair, to discuss on the outstanding tasks and Company's belongings that are to be handed over and returned to the Company on the Claimant's last day.

[9] 16 June 2020: Thereafter, the Claimant handed over all the outstanding tasks and Company's belongings that were in the Claimant's possession to the respective persons in charge, receipt of the same was also acknowledged in the Handover List prepared by the Claimant (see p 13 of CLB-1). Dissatisfied with his termination by the Company, the Claimant filed a complaint to the Director General of Industrial Relations where the complaint was ultimately referred to the Industrial Court.

Company's Submissions

[10] The company avers and states that apart from the fact that the Notice of Termination issued by the Company and received by the Claimant on the 18 March 2020 the Claimant had attended a meeting with the Chief Execut