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2022 MarsdenLR 2361
INDUSTRIAL COURT KUALA LUMPUR
FROZ KHAN SHAHUL HAMEED – Appellant
Versus
EXNI RAILWAY (M) SDN BHD – Respondent
Award No: 2091 of 2022 [Case No: 5-4-2502-20]
An employer must provide just cause for dismissal, even during probation, including clear warnings and opportunities to improve performance.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal – The claimant was dismissed from his role during probation for unsatisfactory performance with proper notice – The extended probation and evaluations were conducted in full knowledge of the claimant, who failed to improve despite opportunities – The court upheld the dismissal as justified without malice. (Paras 27-29, 42-61, 85)
(B) Performance Standards – It is well-established that an employee's termination must be justified, requiring employer warnings regarding performance and adequate opportunity for improvement. (Paras 33-39)
Facts of the case: The claimant, employed as a Business Development Manager, was terminated during his probation for failure to meet performance standards after a probation extension.
Findings of Court: The court found that the company's reasons for termination were adequate, based on documented performance reviews and the claimant’s lack of improvement.
Issues: Whether the claimant performed adequately and whether the dismissal was justified.
Ratio Decidendi: The dismissal was found to be justifiable based on evidence of poor performance and non-compliance with job requirements, validating the employer’s right to terminate during probation.
Result: Claimant’s dismissal upheld, case dismissed.
AWARD
Reference
[1] This is a reference by the Honourable Minister of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 arising out of the alleged dismissal of Froz Khan Bin Shahul Hameed (hereinafter referred to as "the claimant") by Exni Railway (M) Sdn Bhd (hereinafter referred to as "the company") on 31 March 2020.
Factual Background
[2] The claimant was offered an employment with the company as Business Development Manager for a fixed term contract of twelve months vide Letter of Offer for A Fixed Term Employment Contract dated 13 September 2019 (at pp 3-9 of CLB-1) with a basic salary of RM7,800.00 per month and a fixed hand phone allowance of RM200.00 per month. Upon accepting the Letter of Offer, the claimant was instructed to report for duty at the company on 1 October 2019. The employment with the company shall subject to probation period of three months.
[3] During the probation period, either party may terminate the employment with the company by giving one month prior notice in writing to the other party. Confirmation of the claimant's employment with the company shall subject to the claimant's satisfactory performance during the probation period. The company may at its discretion, extend the probation period.
[4] The company had issued a letter of Extension of Probation dated 6 January 2020 (at p 10 of CLB-1) informing the claimant that his probation period ending on 1 January 2020 has been extended for next three months, ending on 31 March 2020 and his performance will be reviewed throughout this extended period. All other terms and conditions of the claimant's employment will remain the same.
[5] The performance of the claimant with the company has not been satisfactory and/or meeting the minimum required performance standard of the company. Despite the extension of probationary period to 31 March 2020, the claimant's performance is far from satisfactory level expected from the company. The probationary performance conducted on the claimant, covering both his performance and personality evaluation has found that the claimant were not able to carry himself satisfactorily and professionally as an employee of the company because of lack of his enthusiasm for the job and not fulfilling the tasks given to him.
[6] As a result of the above mentioned, the company issued a letter of Termination of Employment dated 11 February 2020 (at pp 11-13 of CLB-1) to the claimant informing the termination of his employment by giving one and half (1.5) months' notice in writing with effect from 31 March 2020.
[7] The company will pay to the claimant two months' salary based on his last drawn salary on monthly payroll date until end of his contract period which is 31 February 2020. The claimant were also required to return all the company's property and documents with immediate effect. The company also paid to the claimant leave encashment for total balance of leave entitlement amounting RM600.00 which was accepted by the claimant in Appendix 1 at p 13 of CLB- 1.
[8] Being dissatisfied with the alleged dismissal, the claimant had referred his case to the Minister of Human Resources for this Court to hear and hand down an award of this reference. The claimant prays that this Court holds his dismissal was without just cause or excuse, a breach of the principles of natural justice, an unfair labour practice and an act of mala fide by the company. The claimant prays that he be reinstated to his former position without any loss of wages, seniority and such all other benefits earned or any relief which this Court deems and proper to grant.
Cause Papers, Bundle Of Documents, Witness Statements And Written Submissions Referred
[9] The following documents were filed before this Court and were marked accordingly:
(i) Statement of Case dated 17 December 2020;
(ii) Statement in Reply dated 29 January 2021;
(iii) Rejoinder dated 2 May 2021;
(iv) Company's Bundle of Documents marked as "COB-1";
(v) Company's Bundle of Docume
