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2023 MarsdenLR 625
INDUSTRIAL COURT KUALA LUMPUR
JOHN CHIEW SIEW KIONG – Appellant
Versus
PERSATUAN PEMELIHARAAN PENDIDIKAN TIONG HUA MALAYSIA – Respondent
Award No: 2312 Of 2023 [Case No: 19/4-1390/20]
The termination of a probationary employee does not constitute unfair dismissal if the employer provides just cause and proof of poor performance.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Claimant alleged unfair dismissal without just cause - Court found that the Claimant was a probationer and that the dismissal was merely the end of the probation period - The Company provided sufficient evidence that the Claimant failed to perform his tasks, justifying the non-renewal of the probation - The burden of proof lies with the employer to prove just cause for dismissal. (Paras 21-34)
(B) Burden of Proof - In dismissal cases, the employer must produce convincing evidence of misconduct or poor performance to justify termination. (Paras 24-25)
(C) Standard of Proof - The standard required in the Industrial Court is on the balance of probabilities, not beyond reasonable doubt. (Para 29)
Facts of the case:
The Claimant was employed as Executive Secretary but was dismissed at the end of his probation period on 29 February 2020. He claimed the dismissal was without just cause, while the Company argued it was due to poor performance and lack of confirmation as permanent staff.
Findings of Court:
The Court found that the Claimant was a probationer throughout his employment and that the dismissal was justified based on the evidence provided by the Company.
Issues: Whether the Claimant was unfairly dismissed and whether he was confirmed as a permanent employee.
Ratio Decidendi: The Court held that the Claimant remained a probationer as there was no evidence of confirmation, and the Company had just cause for not renewing his probation based on performance issues.
Result: Claimant's claim dismissed.
| Table of Content |
|---|
| 1. reference and procedural history of dismissal case. (Para 1 , 2 , 3 , 4) |
| 2. claimant's employment details and dismissal context. (Para 5 , 6) |
| 3. company's arguments regarding claimant's probation status. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15) |
| 4. company's position on dismissal and performance issues. (Para 16 , 17 , 18 , 19 , 20) |
| 5. role and function of the industrial court. (Para 21 , 22 , 23 , 24) |
| 6. burden of proof in dismissal cases. (Para 25 , 26 , 27 , 28) |
| 7. evaluation of evidence regarding probation termination. (Para 29 , 30 , 31 , 32 , 33) |
[1] This is a reference by the Honourable Minister of Human Resources, under s 20(3) of the Industrial Relations Act 1967 dated 5 July 2020 pertaining to the dismissal of John Chiew Siew Kiong (hereinafter referred to as "the Claimant") by Persatuan Pemeliharaan Pendidikan Tiong Hua (hereinafter referred to as "the Company") on 29 February 2020
Procedural History
[2] Pursuant to the direction of this Court, the parties in this matter filed their respective submissions accordingly. This Court received the following written submission of the parties namely the Company's written submission dated 4 August 2023 on 10 August 2023, the Claimant's written submission dated 4 August 2023 on 4 August 2023.
[3] This Court considered all the notes of proceedings in this matter, documents and the cause papers in handing down this Award namely:
a) The Claimant's Statement of Case dated 12 October 2020.
b) The Company's Statement in Reply dated 26 October 2020
c) The Claimant's Rejoinder dated 30 December 2020
d) The Company's Bundle of Documents - marked as "COB1"
e) Claimant Bundle of Documents marked as "CLB1"
f) Company's Witness Statement (Kwan Che Hong) - marked as "COWS1"
g) Claimant's Witness Statement (John Chiew Siew Kiong) - marked as "CLWS1"
Introduction
[4] The dispute before this Court relates to the claim by John Chiew Siew Kiong ("the Claimant") alleged dismissal of the Claimant by Persatuan Pemeliharaan Pendidikan Tiong Hua Malaysia ("the Company") on 29 February 2020.
Claimant's Case
[5] Pursuant to the interview dated 22 April 2019, the Claimant was employed by the Company as Executive Secretary with a basic salary of RM3,000.00. Based on the Statement of Case, the Claimant is claiming from the Company, (reference made to para 6 of the Statement of Case) that the dismissal was without any just cause or excuse and/or breach of the principles of natural justice and/or unfair labour practice and/or unlawful and in breach of the Code of Conduct for Industrial Harmony.
[6] On 23 February 2020 the Company issued a probation period further appointed ended letter to the Claimant. The Claimant probation will be ended by 29 February 2020.
Company's Case
[7] Although there was no written agreement on the status of the Claimant, the Company submits that it is within the full knowledge and does not dispute that the Claimant commence his work at the Company as a probationer as it can be seen in the Claimant's witness statement CLWS1, answer to question number 1 "in the interview on 22 April 2019 at 3 pm, I was offered the post as Executive Secretary with three (3) months' probation period...".
[8] Further, during the trial, although the Claimant tried to establish the facts that he had been confirmed as permanent staff, unfortunately there was no documentary evidence to support the same instead the oral evidence given by the Company witness during cross examination, insisted that there was never any confirmation made to the Claimant in regards if his status as a permanent staff.
[9] The Company also claimed this was further proven by the fact that there was no increment of salary throughout the Claimant's employment period meaning the Claimant has never been confirmed by the Company at all material time, instead it was the Claimant himself who demanded for an increment as can be seen in the [CLWS] answer to question 14:
"This is a letter of salary increment request emailed to both the Honorar
