This matter was referred to court by way of a ministerial reference under s. 20(3) of the Industrial Relations Act, 1967 , on the 10th July 2002, arising out of the dismissal of Ong Chee Meng (hereinafter referred to as the " claimant " ) by the company, Sitt Tatt Berhad (hereinafter referred to as the " company " ).

The claimant commenced employment with the company on the 15 March 2000, as senior manager for business development, drawing a basic salary of RM8,000 per month. His job functions are to develop business for the company which includes executing new joint ventures and business operations for the company. He is to undergo a probationary period of six months.

On the 14 September 2000, the company issued a letter to the claimant as shown at p.5 of the company's bundle of documents marked COB1, extending his probation for a further period of three months. On the 14 December 2000, the claimant received a letter dated the same instant from the company as shown at p. 10 of COB1, terminating his employment with the company with immediate effect.

The rights of employees on probation is posited in very clear terms by the court of Appeal in Khalilah Abbas v. Pesaka Capital Corporation Sdn Bhd :

Therefore, the burden is still upon the company to discharge the onus that the termination of the claimant's service is with just cause or excuse.

A perusal of the company's evidence clearly indicated that the termination of claimant's employment was mainly grounded upon his poor performance in the discharge of his duties and functions emplaced upon him by his contract of employment. The totality of the evidence also indicated that the claimant knew all along that his performance was under close scrutiny by the company and he knew that the company was less than happy with his performance in the discharge of his duties and functions. Those are my factual findings.

The evidence which was not challenged by the claimant showed that on the 12 September 2000, before the expiry of the initial six months' probation period, the company appraised the claimant's job performance and found it to be unsatisfactory. According to COW1 the claimant was duly notified of the said appraisal and the claimant acknowledged the same. The said appraisal form as shown at p. 4 of COB1 indicated that the claimant " need to show independence in developing and executing new JV's and business operations of the company (STB). " These remarks which were not challenged by the claimant is the company's clear indictment of the claimant's performance. It also serves as a clear testimony of the company's evaluation of the claimant that his performance was not up to the company's expectation.

The evidence also indicated that it was precisely for these reasons that the claimant's probation was extended for a further three months, as shown by the letter of extension at p. 5 of COB1. This extension acts both as a reminder/warning to the claimant to improve and at the same time giving him the opportunity to improve and meet the company's