A probationary employee enjoys rights to just cause dismissal, but must prove their suitability during the probation period.

[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 (1967 Act) by the Honourable Minister of Human Resources, emanates from the dismissal of C Indran PN Chitran J ("the Claimant") by Mutiara-TCB Hotel Management Sdn Bhd ("the Company") on 3 June 2019.

Preamble

[2] This case was partly heard before the Learned Chairman Tuan Teoh Chin Cheong and upon the exit of the said Learned Chairman from the Industrial Court, the hearing was continued before me. With this regard, s 23(6) of the Act reads as follow:

"During the absence or inability to act from illness or any other cause by the Chairman, the Yang Di-Pertuan Agong may appoint another person to exercise the powers or perform the functions of the Chairman and, notwithstanding that the Chairman may have resumed the duties of his office, the person so appointed may continue to exercise the powers or perform the functions for the purpose of completing the hearing and determining any trade dispute or matter commenced before him."

[3] Thus, it is clear that s 23(6) of the Act allows another Chairman to continue hearing and determine a part heard case. Reference is also made to the High Court decision in Bax Global (Malaysia) Sdn Bhd v. Sukhder Singh Pritam Singh & Anor, [2011] 2 CLJ 534 wherein it was held that a Learned Chairman has the jurisdiction to hand down an Award in a matter heard by another Chairman.

[4] This Court will determine the issues before it and make its findings based on the pleadings, notes of proceedings, the relevant oral and documentary evidences, the cause papers and submissions. The following documents were filed before this Court:

(i) Statement of Case dated 21 February 2020;

(ii) Statement in Reply dated 21 August 2020;

(iii) Rejoinder dated 21 October 2021;

(iv) Company's Bundle of Documents: COB-1;

(v) Additional Company's Bundle of Documents: COB-2;

(vi) Additional Company's Bundle of Documents (2): COB-3;

(vii) Additional Company's Bundle of Documents (3): COB-4;

(viii) Witness Statement of Haniza Rahmat @ A. Rahman: COWS-1;

(ix) Additional Questions of Haniza Rahmat @ A. Rahman: COWS- 1(a);

(x) Witness Statement of Noel Vendawall: COWS-2;

(xi) Additional Questions of Noel Vendawall: COWS-2(a);

(xii) Evidence of Tham Huey Wean: COW-3;

(xiii) Witness Statement of the Claimant, C Indran P. N. Chitran J: CLWS-1;

(xiv) The Company's Written Submission dated 25 November 2022;

(xv) The Claimant's Submission dated 17 February 2023; and

(xvi) The Company's Written Submission In Reply dated 27 March 2023

Brief Facts

[5] The Claimant (who is also known as Mario) was appointed on a fixed term contract as the General Manager of Mutiara Johor Bahru (the Hotel) by the Company from 4 June 2018 to 31 May 2020. The Claimant was subjected to initial probationary period of six (6) months commencing from 4 June 2018 to 5 December 2018. Vide letter dated 5 December 2018 the Claimant's probationary period was extended for a further six (6) months as he had fallen short on meeting the expectations of the role as the General Manager. The Claimant's probationary period was further extended for three (3) months vide letter dated 11 March 2019 as he was still not meeting the expectations required for the role of a General Manager. Vide letter dated 31 May 2019, among others, the Company informed the Claimant that he will not be confirmed in his position and his last working day will be on 3 June 2019.

The Claimant's Case

[6] The Claimant started employment with the Company from 4 June 2018 as General Manager with a basic monthly s