An employee on probation is protected against dismissal without just cause or excuse, and the employer bears the burden of proof.

AWARD

Paramalingam J Doraisamy:

The Reference

[1] This is a reference dated 08 December 2020 by the honourable Minister of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the dismissal of Sheik Muhamed Amin Bin Sheik Hassan ("Claimant") by Teknik Datasaab Sdn Bhd ("Company") on the 17 April 2020.

[2] The parties in this matter were directed to file their respective written submissions by this Court. This Court had received the Claimant's Written Submissions on the 20 May 2021, the Company's Written Submissions dated 31 May 2021 and had also further received the Claimant's Reply Submissions on the 18 June 2021.

[3] This Court considered all the notes of proceedings in this matter, documents and the cause papers in handing down this Award namely:-

(i) The Claimant's Statement of Case dated 22 February 2021 and the enclosures therein;

(ii) The Company's Statement in Reply dated 17 March 2021 and the enclosures therein;

(iii) The Claimant's Rejoinder dated 25 March 202;

(iv) Claimant's Bundle of Documents marked as CLB;

(v) Claimant's Document - Notice of Office Closure dated 18 March 2020 marked as CL2;

(vi) Company's Witness Statement (Saseedharan A/L N Chelliah Pillay) marked as "COW-WS";

(vii) Claimant's Witness Statement marked as "CLW-WS".

Introduction

[4] The dispute before this Court is the claim by Shiek Muhamed Amin Bin Sheik Hassan ("Claimant) that he had been dismissed from his employment during his probationary period without just cause or excuse by Teknik Datasaab Sdn. Bhd. ("Company") on the 17 April 2020.

[5] The Claimant was appointed as the Human Resource & Administration Manager by the Company effective 17 February 2020. The Claimant's starting salary was RM3,500.00 per month. The Claimant was placed on a 3 months probationary period. It is common knowledge that on the 18 March 2020, the Government of Malaysia imposed a Movement Control Order to combat the spread of the now known COVID19 infectious disease which became a pandemic and caused a worldwide health emergency. On the 13 April 2020, the Company sent a Termination Notice to the Claimant informing him that due to the current situation, the Claimant's probationary period will not be continued and that his last day of service will be the 17 April 2020. The Claimant now dissatisfied with the Company's termination Notice dated 13 April 2020 claims that he had been dismissed without just cause or excuse and prays for reinstatement to his former position without any loss of wages or other benefit. The Company on the other hand contends that the Claimant had shown during the probationary period that he was not suitable to be continued in his employment coupled with the Claimant's age which had exceeded 60 years old. The Company had also stated that the Claimant had also filed a complaint in the Labour Office for unpaid wages and the same was amicably settled by the parties.

[6] The Claimant conducted the case by himself, gave evidence under oath and remained the sole witness for his case. The Company's evidence was led by COW (Saseedharan A/L N. Chelliah Pillay who was the Company's Administrative Executive).

The Claimant's Case

[7] The Claimant's case can be summarised as follows:-

(i) The Claimant was appointed as the Human Resource and Administration Manager of the Company on the 17 February 2020.

(ii) The Claimant starting salary was RM3,500.00 per month.

(iii) On the 17 April 2020 the Claimant received a letter dated 13 April 2020 informing him that he was being dismissed from employment with a 24 hours notice effective 17 April 2020 on the same date the Claimant received the Notice of Termination.

(iv) The Claimant states that he had faithfully and diligently served the Company and at no material time was subjected to any form of disciplinary action and had committed no breach of his employment terms. The Claimant had also not committed any misconduct.

(v) The Claimant states that his dismissal was done without any prior writte