Award No. 297 of 1991 [21 SEPTEMBER 1991]

The parties involved in this dispute are Caleb Brett (M) Sdn. Bhd. (the company) and Encik AbdulRahman bin Ahmad Sharkawi (theclaimant). In the statement of case (undated) filedby the claimant himself, he has pleaded inter alia that he was employed by the company as a Trainee Cargo Surveyor on 16 March 1988 at abasic salary of $300 a month andanallowance of $200 a month; that on 1 January 1989, hewas confirmed in the post of Cargo Surveyor; that initially,hewasattachedtothecompany'sbranch office in Miri but on 20 March 1989, he was transferred to its Bintulu branch; that he duly reported for work at the Bintulu branch and was assigned work immediately; that duringthe course of his work, there were several complaints about his work but they were quite unjustified; that thereafter the company videits letter dated 30 June 1989, terminated his services with effect from 3 July 1989. The claimant contends that the said termination was unfairas it was made contrary to the principles ofnatural justice. He therefore prays for reinstatementto his former position in the company without loss of benefits, etc. The company has filed in the statement in reply (undated) denying the claimant's allegations, contending in effect that his services were terminated because of negligence and or a complete lack of responsibility in the performance of his work.

At the outset, I think it is clear that the claimant's services were terminated by the company on 3 July 1989. This is reflected in the termination letter dated 30 June 1989 at annexure 8 to the statement in reply, the relevant parts therein stated:

With reference to the inquiry you had with Mr. Oliver Ting, the Branch Executive of our Bintulu Office earlier this week, I regret to inform you that your services with the company will not be required effective from 3 July 1989 ... Arrangements have been made to settle all monies due to you from the company prior to your last day of service.

The effect of the company's action in terminating the claimant's services is sufficiently clear. It tantamounts to a dismissal. And the fact of dismissal is not in dispute. What remains to be considered therefore is the issue relating to the general question of whether the dismissal was fair or unfair and this consists of two stages, namely, identifying the reason or principal reason for the dismissal and thereafter, examining the reasonableness of the company's decision to dismiss. It is trite law that the burden of proof of lies with the company on both counts.

What then was the reason or principal reason for the dismissal? It is the company's case that the claimant's services were terminated by reason of his negligence and or lack of responsibility in his duties. This is reflected in the termination letter dated 30 June 1989. The position is further expanded and elaborated upon in the testimony of Mr. Oliver Ting COW1 the branch executive of the company's Bintulu Office and he concludes as follows:

So he was terminated because of his poor performance, his poor attitude, negligence in his work - all these we felt, would jeopardise the other staff (surveyors) in our company. We had seriously in mind the bad effect upon our principals upon whom our business depend, that they might not want to continue doing business with us in the future.

Quite clearly therefore the principal reason, relates to the claimant's purported negligence or his lack of responsibility in the performance of his duties. The company has been able to identify the principal reason for dismissing the claimant at the material time. This I so find.

Having thus identified the principal reason, the next thing is to consider whether the dismissal for that reason, was reasonable in the circumstances. Now, it has been said that where a person has not come up to expectations through his own carelessness , negligence or idleness, etc., these are more appropriately dealt with as cases of misconduct rather than incapabi