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INDUSTRIAL COURT, KUALA LUMPUR
LEE YOON KIM – Appellant
Versus
MALAYSIAN BULK CARRIERS BHD – Respondent
Award No: 1939 Of 2008 [Case No: 3/4-2681/06]
AWARD
The Ministerial reference pursuant to section 20(3) of the Industrial Relations Act 1967 required the Court to hear and determine the claimant's complaint of her dismissal by the respondent on 15th March 2006.
The respondent carries on business as ship brokers and ship managers. On 9th May 2005 the claimant was taken into employment on probation as an accounts executive. Her probation was extended twice and ultimately, by letter dated 6th March 2006 the respondent notified her of their decision not to confirm her employment and that her last day would 15th March 2006. The termination letter (COB-30) is reproduced:-
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Level 17, PJ Tower,No. 18, Jalan Persiaran Barat, Off Jalan Timur,46050 Petaling Jaya, Selangor, Malaysia.Tel: 603-79661688 Fax: 603-79661628Telex: MA 36419 ALAMCOCable Address: PACSHIP Petaling Jaya. | |
6 March 2006MS LEE YOON KIM- Present -Dear Yoon Kim,RE : ACCOUNTS EXECUTIVEWe refer to our letter of employment dated 5 April 2005 and the subsequent letters of 8 December 2005 and 7 February 2006, extending your probationary period, respectively.We note with regret that your performance at work has not been satisfactory nor improved despite us giving you second opportunity to improve your work. Given this, we regret to advise that we are unable to confirm your employment as an Accounts Executive with the company and thus, we hereby give you seven (7) days' notice of termination.Your last day of employment with the company will be on Wednesday, 15 March 2006.Please hand-over all matters and/or documents relating to the company that are being handled by you and/or in your safe-keeping to your immediate superior (or such other person(s) as you may be advised) by 6.00p.m on 15 March 2006.In the meantime, you are reminded to keep all confidential and maintain the confidentiality, at all times, of all information, trade secrets, matters and documents learnt or made known to you or which you may come across in the course of your work during your tenure with the company.We take this opportunity to wish you all the best in your future undertakings.Yours sincerely,MALAYSIAN BULK CARRIERS BERHAD Signed..............JUDY WONG General Manager | |
I/We hereby acknowledge receipt of the aboveSigned.................................Name:Lee Yoon KimI/C No:760927-05-5202Date:6/3/2006". | |
The respondent must demonstrate to this Court that it had just cause and excuse to terminate the claimant's employment. The just cause and excuse required to justify a dismissal will vary according to the circumstances of each case. The circumstances of a probationer are different from the circumstances of a confirmed employee. It is manifest from this letter that the respondent was not satisfied with the claimant's performance and that it was exercising its right under the terms of the probationary employment to terminate such probationary employment. It will be the task of the Court to ascertain whether from the evidence adduced the respondent had reasonable grounds for its dissatisfaction with the claimant's performance. If it had, then the dismissal would have been for just cause and excuse. In its deliberations the Court will be guided by the law as outlined below:-
Malhotra's The Law of Industrial Disputes " (11th edn) which has been cited with approval by the Industrial Court says, at p. 224 as follows:-
"It is well settled law that at the end of the probationary period, it is open to the employer to continue the employee in his service or not in his discretion, otherwise the distinction between probationary employment and permanent employment will be wiped out. Even if on the expiry of the probationary period the work of the employees is satisfactory, it does not confer any right o
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