An employer may terminate a probationary employee for poor performance if justified by documented evidence and warnings, as probationers have rights but are subject to performance evaluations.

AWARD

Syed Noh Said Nazir @ Syed Nadzir:

Reference

[1] This is a reference by the Director General Industrial Relations Department of Ministry of Human Resources dated 4 April 2023 under s 20(3) of the Industrial Relations Act 1967 in respect of the termination of Thurka Thevi A/P Mohan (hereinafter referred to as "the Claimant") by the respondent Ace Greencemt Venture (M) Sdn Bhd (hereinafter referred to as "the Company") on 25 August 2022 in order for this court to hear and determine the case and a final award be handed down.

Factual Matrix

[2] By a Letter of Employment dated 25 January 2022, the Company had offered and the Claimant had accepted the position as a Logistic Executive with the Company with a basic salary of RM3000 per month, subject to the terms and conditions stipulated in the letter of Appointment, inter alia as follows:

a. the claimant shall be placed on probation for a period of 6 months, during which mid-probation review will be conducted in 3 months. The Letter of Appointment also contained the following clause in relation to the termination of the Claimant's employment. "During the period of probation, your employment can be terminated at any time either side giving one (1) day notice in writing or pay in lieu without any reason being assigned for the termination....." [See COB pp 1-3];

b. the working hours were stated as 8.30 am to 6.00 pm Mondays to Fridays with a one (1) lunch break from 1.00 pm to 2.00 pm. It was further stated that "the management may change the working hours if the need arose in the future." [See COB p 1].

Job Description

[3] The Claimant's day-to-day functions were listed in the detailed job description and the Claimant reported to the Logistics Manager Mr Saranraj A/L Arunasalam. [See Job Description at COB p 14]. The Company had intended the Claimant to take over most of the logistics functions / tasks, in order for the senior staff to move to the other important tasks as directed by the management and had provided the Claimant with guidance and briefing.

[4] As the Claimant was unable to cope with the functions, responsibilities and demands of the job as Logistics Executive, the Company was left with little choice but to terminate her employment on 25 August 2022. As at the date of termination, she remained a probationer. [refer: Job Description annexed with Letter of appointment, p 4, COB].

Company's Pleaded Case

[5] The Company states that the Claimant's poor performance was affecting the department's productivity and the Company's goals. Frequently, the Claimant's uncompleted tasks had to be undertaken and finished by someone else and this created unnecessary burdens for the Claimant's superiors. After oral warnings were given to the Claimant on 18 March 2022 and 17 May 2022, a warning letter dated 12 August 2022 was then issued to the Claimant about her poor performance [refer: p 25, COB - warning letter dated 12 August 2023].

[6] A final review was done on 18 August 2022. Finally, when there was no improvement the Claimant's performance and despite continuous guidance from her superiors and the training provided, the Claimant was unable to catch up on the logistics workflow, the Claimant was then terminated on 25 August 2022 [refer: pp 23-24, COB - claimant's reviews].

[7] Though the clause in the said letter of appointment provided that the "management may change the working hours if the need arises in future", the Company denies that it changed the working hours, and further denies that it had actually asked the Claimant to work on weekends as alleged.

[8] As the Claimant was a probationer; her performance was constantly monitored by her superiors in Company. There was a legitimate and reasonable expectation that the Claimant would perform the tasks assigned for the role for which she was hired, to an acceptable and reasonable standard. But her performance and conduct constantly fell far short of these requirements.

[9] The Company categorically denies having asked the Claimant to rep