The employer must prove just cause for dismissal, especially in probationary context; performance failure and misconduct justified termination under contract law principles.

[11] It is trite industrial law that for dismissal cases, the burden rests on the employer to prove that the dismissal was with just cause or excuse: see Goon Kwee Phoy v. J&P Coats (M) Sdn Bhd, 1981 MarsdenLR 319 , Federal Hotels International Sdn Bhd v. Tong Khai Chan & Anor; [1989] 2 ILR 107 (Award No. 113 of 1989), Kama Morris Sdn Bhd v. Lee Chwee Say; [1990] 1 ILR 435a (Award No. 117 of 1990), inter alia.

[12] In Union Construction Allied Trades & Technician v. Brain [1981] 1 RLR 224, Lord Donaldson said of the following:

"The employer has to show why in fact he dismissed the employee. This is no great burden upon the employer since he will know why he dismissed the employee.

Hence for the above reasons the onus lies on the company and it has to call the witness and adduce evidence, whether oral or documentary, to prove the facts and circumstances which it contends constituted just cause or excuse for dismissing the claimant."

[13] In Goon Kwee Phoy (supra), Raja Azlan Shah CJ (Malaya) (as his Majesty then was), held:

"If the employer chooses to give reason for the action taken by him, the duty of the Industrial Court will be to inquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then 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."

[14] The Court will have to then inquire whether the above excuse or reason has or has not been made out.

Standard Of Proof

[15] The Court of Appeal in the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor, 2002 MarsdenLR 1640 ("Telekom case") clearly stated the standard of proof required to be met even where criminal related misconducts are concerned. The Court of Appeal in the Telekom case held as follows:

"Thus, we can see that the preponderant view is that the Industrial Court , when hearing a claim of unjust dismissal, even where the ground is one of dishonest act, including "theft", is not required to be satisfied beyond reasonable doubt that the employee has "committed the offence", as in a criminal prosecution ...".

[16] In our view the passage quoted from Administrative Law by HWR Wade & CF Forsyth offers the clearest statement on the standard of proof required, that is the civil standard based on a balance of probabilities, which is flexible, so that the degree or probability required is proportionate to the nature of gravity of the issue. But, again, if we may add, these are not "password" that the failure to use them or if some other words are used, the decision is automatically rendered bad in law."

Evidence

The Company

[17] The Company called two witnesses. COW1 the first witness in her Witness Statement, COWS-1 said that she is currently the General Manager of the Company.The Company's markets three core services which were leadership training product, advisory work and tools on recruitment and talent management. COW1 interviewed the Claimant who said she had experience in sales line and was a HR Consultant. The Claimant apart from getting a basic salary of RM6,500.00 was also entitled to a 3% commission for revenue generated of less than RM1 million and 5% if it was more that RM 1 million. She was also entitled to a thirteen mo