The termination of a probationary employee can be justified if the employer demonstrates unsatisfactory performance and provides adequate warnings.

AWARD

Rusita Md Lazim:

[1] This is a reference dated 23 August 2022 by the Director General of Industrial Relations Malaysia to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as "the IRA ") in respect of the dismissal of Lim Chun Wei (hereinafter referred to as "the Claimant") by her employer, SF Metal Sdn Bhd (hereinafter referred to as "the Company") effective 17 February 2022.

[2] This Court has considered the following cause papers and documents in handing down this Award, namely:

(a) the Claimant's Statement of Case dated 24 November 2022;

(b) the Company's Statement in Reply dated 4 January 2023;

(c) the Rejoinder dated 27 July 2023;

(d) the Claimant's witness statement (Lim Chun Wei) is marked as "CLWS-1";

(e) the Company's Witness Statement (Terrence Ooi Eng Hin) is marked as "COWS-1";

(f) the Company's Supplementary Witness Statement (Terrence Ooi Eng Hin) is marked as "COWS-1A";

(g) the Company's Bundle of Documents marked as "COB-1"; and

(h) the Company's Bundle of Documents marked as "COB-2".

A. Brief Facts Of The Case

[3] The Claimant commenced his employment as Sales Engineer vide a Letter of Offer dated 14 September 2021. The Claimant underwent a probation period of three months which was from 14 September 2021 until 14 December 2021 (COB-1 pp 1-5).

[4] The Claimant's monthly salary is RM2,500.00 together with petrol and toll allowance of RM500.00 (COB-1 pp 1-5).

[5] The Claimant was not confirmed upon the expiry of the three months probation period. On 12 January 2022 which is around four months from the date of employment, the Company issued Show Cause Letter to him, alleging that he has avoided communication (COB-1 p 21)

[6] The Company issued Termination of Probation Period via letter dated 17 February 2022 to him by giving two weeks' notice in writing (COB-1 p 6).

[7] Being dissatisfied with the punishment of termination of service imposed by the Company against her, the Claimant filed this reference before the Director General of Industrial Relations Malaysia for unfair dismissal alleging that his dismissal was without just cause or excuse. The remedy sought by the Claimant is the total unpaid commission amounting to RM14,879.12.

B. The Claimant's Case

[8] In his Statement of Case, the Claimant avers that:

a. The termination of the Claimant after the expiry of three (3) months without confirmation was a hasty action as the Claimant was assigned various types of Companies;

b. The Company has not raised any serious issues regarding the Claimant's performance;

c. The Claimant was not provided with an adequate opportunity or training by the Company;

d. The Company failed to pay the Claimant the sales commission as agreed via the letter from the Company dated 7 December 2021 effective January 2022 (COB-1 p 45);

e. The Claimant had applied half day unpaid leave on 20 September 2021 and half day unpaid leave on 5 October 2021;

f. As for the unjustifiable sick leave, on 11 February 2022 and 25 February 2022, the Claimant provided a medical certificate by a practicing doctor. The Company has no right to question the professionalism of practicing doctors;

g. As regards the commission, the Company refuses to acknowledge the sales made by the Claimant and the Company's computation is inaccurate.

h. The Claimant's termination was contrary to the principles of natural justice and was unfair labour practice.

C. The Company's Case

[9] In its Statement in Reply, the Company avers that:

a. The Company issued a Show Cause Letter dated 12 January 2021 to the Claimant as he failed to submit KPI and Sales Report ("the misconduct") which the Claimant refuse to accept and failed to respond;

b. On 14 February 2022, the Company issued a warning letter to the Claimant for the same misconduct (COB-1 p 22);

c. Before the issuance of the said two letters, the Company had verbally or through emailed reminders the Claimant to rectify the misconduct;

d. The Claimant also failed to submit the sales report wi