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2023 MarsdenLR 1853
INDUSTRIAL COURT KUALA LUMPUR
JOHAN ARRIFFIN ABD SAMAD – Appellant
Versus
INSTITUTE FOR DEVELOPMENT STUDIES (SABAH) – Respondent
Award No: 1592 Of 2023 [Case No: 3(17)/4-413/20]
Probationary employees have rights similar to confirmed employees and cannot be dismissed without just cause or proper procedures, including adequate notice.
Headnote:(A) Industrial Relations Act 1967 - Subsections 20(3), 30(4), 30(5), and 30(6) - Dismissal of employee during probation period - Claimant was dismissed without just cause or excuse; the Company failed to provide proper notice of termination - Court ruled that the Claimant was entitled to compensation and backwages. (Paras 60, 68, 70, 72, and 74)
(B) Employment Contracts - Rights of probationers - The Court recognized that probationers have rights similar to confirmed employees and cannot be dismissed without just cause. (Paras 31, 34)
(C) Retrospective Termination - The notice of non-confirmation was improperly retrospective and not agreed upon by the Claimant, affecting the validity of the termination. (Paras 20, 38)
Facts of the case:
The Claimant was appointed as CEO on 1 December 2018 and dismissed on 31 May 2019 during his probation period. The Company cited performance issues and misconduct as reasons for termination, which the Claimant contested as being unfounded. (Paras 2-5)
Findings of Court:
The Claimant was dismissed without just cause, and the Company failed to follow proper procedures regarding notice and confirmation of employment. The Claimant is entitled to compensation in lieu of reinstatement and backwages. (Paras 60, 70)
Issues: The main issues included whether the Claimant's dismissal was justified, the proper notice period required, and the implications of retrospective termination. (Paras 17, 18, 19)
Ratio Decidendi: The Court emphasized that dismissal without just cause requires a fair process, and the failure to hold a domestic inquiry or provide adequate notice invalidated the termination. Probationers have rights that must be respected. (Paras 60, 34)
Result: The Claimant is awarded RM163,860.00 in compensation. (Para 74)
| Table of Content |
|---|
| 1. dismissal details and claimant's position. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. trial process and documentation overview. (Para 7 , 8) |
| 3. court's authority and procedural aspects. (Para 9 , 10 , 11 , 12 , 13 , 14) |
| 4. legal interpretations regarding dismissal. (Para 15 , 16 , 17 , 18 , 19) |
| 5. retrospective effect in contract law. (Para 20 , 21 , 22 , 23) |
| 6. contractual obligations and employment terms. (Para 24 , 25 , 26 , 27 , 28) |
| 7. probationary employment rights. (Para 29 , 30 , 31 , 32 , 33) |
| 8. termination notice requirements. (Para 34 , 35 , 36 , 37 , 38) |
| 9. allegations and company structure. (Para 39 , 40 , 41 , 42) |
| 10. ceo's authority and company management. (Para 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50) |
| 11. misconduct and performance evaluation. (Para 51 , 52 , 53 , 54 , 55) |
| 12. threshold for dismissal based on performance. (Para 56 , 57 , 58) |
| 13. court's finding on dismissal without just cause. (Para 59 , 60 , 61 , 62 , 63) |
| 14. final award and compensation calculations. (Para 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75) |
Reference
[1] This is a reference dated 5 January 2020 made by the Minister of Human Resources pursuant to subsection 20(3) of the Industrial Relations Act 1967 [Act 177] arising out of the dismissal of Johan Arriffin Bin Abd Samad ("the Claimant") by Institute for Development Studies (Sabah) ("the Company") on 31 May 2019.
Brief Facts
[2] The Claimant was appointed as Acting Chief Executive Officer at Institute for Development Studies (Sabah) ("the Company") on 1 December 2018. Acording to the Claimant the Company later appointed him as the Chief Executive Officer on 1 April 2019 until his dismissal on 31 May 2019. The letter of appointment (pages 1016 CLB1) is the employment contract between the Parties since it spells out all the terms of the employment. The letter of Non-Confirmation (p 205 CLB1) is dated 3 June 2019 and states that his last day of employment is 31 May 2019, which happens to be the last day of his probation period.
[3] The Company states in the Statement in Reply that the Company terminated the Claimant due to him being unsuitable for confirmation at the end of the probation period. Based on the letter of confirmation the Company all but admits that the termination letter was in fact dated 3 June 2019 and that the date of termination was effective 31 May 2019. The Company justified the termination based on the actions of the Claimant within the Company during his tenure and have highlighted the said incidents to prove the Claimants non-viability with the Company. These included wrongfully promoting some of his personal staff, changing the jobscopes of certain individuals, negligently signing letters in a non-existing post as well as complaints from some individual officers within the Company. According to the Company, this led to the Chairman personally getting involved in the administrative affairs of the Company.
[4] The Claimant claims that his termination and non-confirmation was done mala fide and that he was being undermined or usurped by some officers within the Company who were not happy that the Claimant was changing the Company. The Claimant highlighted how some officers were holding more than one post and that the Company was beholden on to two or three individuals The Claimant also claimed that the Chairman of the Board of Director of the Company was also getting involved with the management of the Company and listening to these individuals which was not how a company ought to be run.
[5] The Company claimed that the termination was done correctly and justly because the Company said that the Claimant was still on probation. Furthermore, the Company had given the Claimant ample opportunity to vent his frustrations to the Chairman. This was denied by the Claimant who gave a different view of the events that transpired in the Company.
[6] The Claimant prayed that he be reinstated to his former employment as the Chief Executive Officer of the C
