Vide [2000] 2 MELR 525; [2000] 3 ILR 457 the court held that the company's decision to terminate the probationary employment of the claimant was without just cause or excuse. The court then directed the parties to make further submissions on the matter of the proper remedy to be awarded to the claimant in this case.

The claimant does not ask for reinstatement and the court thinks that this is not ill-advised. The claimant instead seeks an award of monetary compensation. He asks the court to make an award of compensation under the two heads of monetary compensation which is the usual practice of the court. He asks the court to compensate him with an award of full back wages in the sum of RM191,250 and compensation in lieu of reinstatement in the sum of RM50,000. He goes on to ask the court to award a further sum of RM500,000 by way of exemplary and punitive compensation. It is plain that the claimant considers himself for all intents and purposes to be a confirmed employee on permanent employment who ought to be treated as such in the award and assessment of compensation. Is the claimant, a probationer, right in asking for monetary compensation on the same basis as if he was a confirmed employee on regular employment?

One of the most important features of the contract of employment of a probationer is to be found in the principle that a probationer remains one until he is confirmed. If no action is taken by the employer either to confirm the probationer or to terminate his service, he is assumed to continue in service as a probationer. In this case, the claimant's contract of service was terminated. The court has found that the said termination was not based on the company's reasonable satisfaction that the latter was not suitable for permanent employment and accordingly ruled that the same was without just cause or excuse. The finding, however, does not mean that the claimant is now deemed to be a confirmed employee or that there was never a termination. In contending on the premise that he was a confirmed employee, the claimant was therefore in error as he was a probationer and remained so at the time his contract of employment came to an end.

What is the proper award of compensation to be made to a probationary employee whose service has been terminated in accordance with the contract subsisting between him and his employer but which the court holds to be a termination which was without just cause or excuse? This is, like all questions of awards of compensation for other categories of workers, a matter within the discretion of the court. In Hotel Jaya Puri Bhd v. NUHBRW & Anor, [1980] 1 MLJ 109, the Federal court held that if there was a legal basis for paying compensation, the question of the amount was very much a matter for the discretion of the Industrial court to fix under s. 30 of the Act. This apparently wide expression of discretionary power must, however, be understood in the light of a subsequent decision of the court of Appeal. In Koperasi Serbaguna Sanya (Sabah) Bhd v. Dr James Alfred (Sabah) & Anor; [2000] 4 MLJ 87; [2000] 3 CLJ 758; [2000] 3 AMR 3493, the court of Appeal citing from The Law of Disputes (4th Ed) Vol. 2, by Malhotra put the matter as follows:

...discretion must be exercised in a judicial and