The dismissal of a probationer can occur without formal warnings if the employer acts in good faith and the employee is informed of performance shortcomings.

AWARD

Zulhelmy Hasan

Reference

[1] This is a reference by the Honourable Minister of Human Resources of Malaysia dated 7 October 2020 pursuant to s 20(3) of the Industrial Relations Act 1967 which was received by the Industrial Court of Malaysia on 23 October 2020 arising out of the alleged unlawful dismissal of LEO MEI YOONG (hereinafter referred to as "the Claimant") by ACTIVE BUILDING DEVELOPMENT SDN BHD (hereinafter referred to as "the Company") on 20 March 2020.

Factual Backgrounds

[2] The hearing of this reference was conducted and heard before Y.A. Puan Azwarnida binti Affandi, the Chairperson of the Industrial Court of Malaysia, Johor Branch on 2 August 2022 and 1 March 2023. However, due to unforeseen circumstances and transfer of the previous presiding Chairperson to another government agency, the President of the Industrial Court of Malaysia on 12 July 2024 had transferred this matter to the Industrial Court of Malaysia, Perak Branch for the Chairman of the said division to hand down the Awards for the present reference pursuant to s 22(2) dan 22(3), dan s 29(g) of the Industrial Relations Act 1967 .

[3] The Company is a private limited company incorporated in Malaysia with its registered address at No 31, Jalan Bertam 15, Taman Daya, 81100 Johor Bahru, Johor. The Claimant has learned about the Company through its advertisement for the position of Senior Sales Admin Executive at Jobstreet.com. Among the job responsibilities for a Senior Sales Admin Executive are, inter alia, as follows:

(i) Sales Administration:

• Responsible for sales admin documentation, SPA, loan documents and so on;

• To ensure and maintain a good filing record and documentation system of purchases files.

(ii) Sales & Marketing:

• To ensure personnel are clearly understood in property development sales flows, conditions, payment terms, legal terms and rights.

• Organize and execute sales and marketing activities achieved sales target.

• To ensure sales data and reports are update timely.

[4]Vide an Appointment Letter dated 17 October 2019 (pp 12-16 of CLB) which indicated that the date of commencement of the Claimant's employment with the Company on 21 October 2019 which was alleged by the Claimant that there were no terms stated termination during probation period and the job scope was not clearly communicated in her appointment letter.

[5] Thereafter, the Claimant was employed by the Company as the Senior Sales & Marketing Executive with monthly salary of RM3,650.00 and subjected to a probationary period of three (3) calendar months and the Claimant's performance will be reviewed by the management who reserve the right to confirm or terminate the Claimant's employment, or to extend the Claimant's probation period.

[6] On 17 January 2020, the Claimant received both appraisal form and performance improvement plan (PIP) form from her direct superior; Carmen Chiam whereby the Claimant followed her superior instruction to fill in all the details of both forms in hoping to get the confirmation from the Company.

[7] On 21 January 2020, there was a performance appraisal review for the Claimant with Carmen Chiam and General Manager of the Company; Isaac Tan upon which after the discussion, the Claimant's probationary period was extended for another two (2) months.

[8] On 4 March 2020, once again Carmen Chiam instructed the Claimant to submit another version of PIP and on 13 March 2020, the Claimant received her termination letter dated 13 March 2020 (pp 18-19 of CLB) informing her employment will end on 20 March 2020, reason being failure to meet the targets set out in the performance improvement plan (PIP) as feedbacked by Carmen Chiam that her work performance is still unsatisfactory and the HR Department also informed the Claimant that the termination is the final decision by the Company.

[9] Despite a reconciliation meeting was held at the Industrial Relations Department Johor Bahru to resolve the dispute, however, parties were unable to reach a compromise