Back
2011 MarsdenLR 3177
INDUSTRIAL COURT, KUALA LUMPUR
JEFFREY TAN HOCK CHAI – Appellant
Versus
KERIS PROPERTIES SDN BHD – Respondent
Award No. 101 Of 2011 [Case No. 13/4 - 2244/2006]
Dismissal of probationary employees must not be arbitrary and requires sufficient justification of performance issues by the employer.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of an employee during the probation period - The dismissal must be based on just cause or excuse - Burden of proof lies on the employer to demonstrate a bona fide decision regarding an employee’s suitability during probation - Evidence must show that termination was not arbitrary or capricious - Importance of sufficient opportunity for an employee to improve was emphasized. (Paras 6, 24, 34)
(B) The principle establishes that while an employee on probation does not enjoy job security, the termination must still be justified and not conducted in bad faith or in violation of due process. (Paras 8, 30)
(C) Case law referenced: Goon Kwee Phoy v. J & P Coats (M) Bhd, Khaliah Abbas v. Pesaka Capital Corporation Sdn. Bhd. - The Court reiterated the employer's duty to provide sufficient evidence of the employee's inadequacies. (Paras 7, 10)
Facts of the case:
The Claimant was terminated approximately three and a half months into a six-month probationary period as Human Resource Manager, with allegations of poor performance despite claims of inadequacy in management's guidance and support. The Respondent cited multiple instances of performance issues, including mistakes in salary calculations.
Findings of Court:
The Court found that the Claimant's dismissal lacked just cause and that evidence presented did not substantiate claims of poor performance or misconduct.
Issues: Whether the dismissal was justified based on performance and conduct during the probationary period.
Ratio Decidendi: The dismissal was found to lack bona fide reasoning as there was insufficient evidence of non-performance or misconduct.
Result: The Claimant's dismissal was deemed without just cause, and a compensation of RM 7,000.00 was awarded.
1. This is a Ministerial reference to the Industrial Court under section 20(3) of the Industrial Relations Act 1967 (Act 177) made on 18 September 2006 for an award pertaining to the dismissal of Jeffrey Tan Hock Chai ("the Claimant") by Keris Properties Sdn. Bhd. ("the Respondent") on 24 June 2006.
2. The hearing of this case commenced on 7 December 2009 and was duly completed on 7 October 2010. The Claimant's solicitors, M/s Y.Y. Ho & Lee filed the Written Submissions on 8 November 2010 and the Claimant's Submission In Reply on 10 January 2011. The Respondent's Written Submissions was filed by M/s C. K. Leong & Co on 15 December 2010.
BRIEF FACTS
3. The Claimant commenced employment with the Respondent Company on 1 March 2006 as a Human Resource Manager with a monthly salary of RM3,500.00 pursuant to a letter of appointment dated 25 February 2006 (CLB, page 1). The Claimant was placed under probation for 6 months. The said letter of appointment states inter alia :
"During the probationary period, either party shall have the right to terminate by giving 24 hours notice without ascribing any reasons.
Confirmation of your appointment is entirely based on our discretion depending on your work performance during the probationary period."
4.Vide Notice of Termination of Appointment dated 24 June 2006, the Claimant's employment with the Respondent Company was terminated with immediate effect. The said Notice (CLB, pages 13 & 14) is reproduced as herein below:
"Date: 24th June 2006
Mr. Jeffrey Tan Hock Chai
(NRIC No.: 640927-08-5069)
F3-1 Pangsapuri Sri Kurau
Jalan Stesyen
34000 Kamunting
Taiping
Perak Darul Ridzuan
Dear Mr. Tan,
RE: TERMINATION OF APPOINTMENT
We refer to your appointment as Human Resource Manager dated 1st March 2006 and regret to inform you that your performance is not up to the expectation of the Management. Despite of numerous warnings been given to you since 29th April 2006 and coupled with numerous counselling sessions conducted by the Executive Director to you, you have failed to improve in your performance. Numerous mistakes on the salaries calculation, even up to the latest mid June 2006 salaries advance for Keris Frames Sdn. Bhd.
As such, as per the terms stated in your appointment letter, we hereby give you 24 hours notice and your appointment as the post of Human Resource Manager is hereby terminated with immediate effect.
In accordance with your terms of employment, we hereby revert to you the sum of RM2,948.58 (Cheque No.: PBB 367152), comprising as follows:-
Yours faithfully,
KERIS PROPERTIES SDN BHD
5. The Claimant in the Statement of Case contended inter alia that the decision to dismiss the Claimant was arbitrary, capricious, manifestly unreasonable and harsh. The decision to the dismiss the Claimant was motivated by mala fide and was an unfair labour practice.
THE ISSUE
6. The issue in this case is whether the dismissal of the Claimant by the Respondent Company was with or without just cause or excuse.
THE LAW
7. The function of the Industrial Court is enunciated in the case of Goon Kwee Phoy v. J & P Coats (M) Bhd , at page 136 where the Federal Court decided as follows:
"Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of that Court to determine whether the termination or dismissal is with or without just cause or excuse . If the employer chooses to give a reason for the action taken by him the duty of the Industrial Court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper inquiry of the Court is the reason advanced by it and that Court or the High Court cannot go into another reason not relied on by the employer or find one for it."
[Emphasis added]
8. A probationer has no right of tenure to his job beyond the agreed contractual probationary period. A probationer has no substantive ri
