Dismissal during probation must be justified; failure to address employee's health concerns during a pandemic constitutes unjust termination.

AWARD

Nur Fauzah Mokhtar:

Reference

[1] This is a reference from the Director General for Industrial Relations to the Industrial Court of Malaysia under subsection 20(3) of the Industrial Relations Act 1967 [Act 177] in respect of the dismissal of GOWRYPRABAGARI A/P ELANKOOVAN ("the Claimant") by STARS INTERNATIONAL ACADEMY SDN BHD ("the Company") on 21 February 2022.

[2] The hearing of this case was initially fixed for two days ie on 2 October 2023 and 3 October 2023. The hearing commenced on 2 October 2023 and concluded on the same day. The Company called two (2) witnesses ie Fauzatul Asrar Binti Mohd Rofli ("COW-1") and Sharmadevan Sundrasegaran ("COW-2"). Whilst the Claimant gave evidence on her own behalf.

[3] In handing down this Award the following were considered by the Court:

(a) the record of proceedings;

(b) the notes of proceedings;

(c) Statement of Case dated 18 January 2023;

(d) Statement in Reply dated 11 September 2023;

(e) Rejoinder dated 19 September 2023;

(f) the Claimant's Witness Statement ("CLWS1"), the Witness Statement of COW-1 ("COWS1") and the Witness Statement of COW-2 ("COWS2");

(g) the Claimant's Bundles of Documents marked as CLB1 and CLB2;

(h) the Company's Bundles of Documents marked as COB1 and COB2;

(i) the Claimant's Written Submissions dated 1 December 2023;

(j) the Company's Written Submissions dated 4 January 2024; and

(k) the Claimant's Written Submissions in Reply dated 29 January 2024.

Background Facts

[4] Based on the pleadings and bundles of documents, this Court takes note of the following:

(a) the Company is an international school that provides quality education through the standard of Cambridge primary education and International General Certificate of Secondary Education;

(b) the Claimant commenced his employment with the Company on 1 September 2021 as a Malay Language Teacher with a starting basic salary of RM3,500.00 per month. The said salary as well as other terms and conditions of the Claimant's employment were stipulated in the Appointment Letter dated 31 August 2021 ("Appointment Letter");

(c) based on the terms and conditions of employment as stipulated in the Appointment Letter, the Claimant, inter alia, was also required to undergo a probationary period of "...THREE (3) to SIX (6) months from the commencement date after which your service will be confirmed unless otherwise notified subject to satisfactory performance. "; and

(d) vide Letter dated 21 February 2022 ("Termination Letter"), the Company informed the Claimant that her appointment as a Malay Language Teacher is terminated with immediate effect ie effective on the same date of the Termination Letter.

The Company's Case And Submissions

[5] The Company, in contending that the Claimant's termination is with just cause and excuse, avers as follows:

(a) none of the teachers employed by the Company contracted COVID-19 at that material time and the Claimant is put on the burden to prove relating to the same;

(b) the Claimant is manipulating the whole situation by stating that a teacher had contracted COVID-19 and the need to apply for a 14-day leave for self-quarantine;

(c) the whole issue started when the Claimant had a meeting with the Human Resource Manager on 11 February 2022 relating to her poor performance based on the assessment conducted by COW-2 via Performance Appraisal Form dated 11 February 2022;

(d) Human Resource Manager informed her based on the said assessment the Company will not proceed with her employment after the end of the six (6) months' probation period as stipulated under cl 2 of the Appointment Letter;

(e) prior to that, the Claimant's performance had also been assessed by COW-2 via Performance Appraisal Form dated 1 December 2021 in which the Claimant's probationary period was extended to another three (3) months to provide more time for the Claimant to improve her performance. The Company had also discussed with the Claimant the said assessment and provided advice for improvement relating to the same;

(f) the Claimant