THIS MATTER was referred to court by way of a ministerial reference under section 20(8) of the Industrial Relations Act, 1967, for an award arising out of the termination of the employment of Encik Mohd Shafie bin Othman (hereinafter referred to as the "Claimant") by his employer, Bank Bumiputra Malaysia Bhd. (hereinafter referred to as the "Company") on 4th February 1999.

The reference papers were received by the court on 23rd February 2003.

The Claimant commenced employment with the Company as its information technology audit manager en a 6 months' probation period, drawing a salary of RM5686.00 per month. By way of a letter dated 4th November 1998 (shown at page 16 of the Company's bundle of documents marked COB-1), his probation period was extended for a further period of 3 months. Being still unsatisfied with his performance, the Company vide letter dated 3rd February 1999 (shown at page 24 of COB-1), proceeded to terminate the Claimant's employment. The Claimant's appeal for reinstatement vide letter shown at page 25 of COB-1 dated 8th February 1999 was refused by the Company as shown by its letter dated 10th March 1999, exhibited at page 29 of the same. Hence this reference before me.

It was the Claimant's contention that his dismissal is without any just cause or excuse and/or in breach of the principles of natural justice and/or was meted out with mala fide intent for the reasons enumerated in sub-paragraphs (i), (ii), (iii) and (iv) of paragraph 12 of his Statement of Case (SOC). However the Company contended that the Claimant was not meeting the job standards and his skills were inadequate to manage the said IT Audit Department. In short he was a poor performer.

Save that there is an intrinsic and material distinction between employees under probation and confirmed employees in that at the end of the probation period for the former, the employer still retains the discretion whether to continue with his employment or otherwise even if at the end of the same his performance was found to be satisfactory, the law is trite in that a probationer enjoys the same rights as a permanent or confirmed employee and his services cannot be terminated without just cause or excuse (see Khalilah bt. Abbas v. Pesaka Capital Corporation Sdn. Bhd. [1997] 3 CLJ 827; [1997] 1 MLJ 376). The test therefore is still for the court to decide based on the relevant facts and evidence whether the Claimant's dismissal/termination was with just cause or excuse. The burden is still upon the Company to prove the bona fide of its exercise to terminate the probationer's services. The standard of proof applicable to both categories of employees are the same.

Adverting to the case before me, the Claimant confirmed that when he accepted employment with the Company he was aware that it was subject to a probation period and that the purpose of the said period was to assess his suitability for the position. Additionally he also accepted that if at the end of the period or extended probation period as the case may be, he was found not to be suitable, the Company will terminate his employment. The Claimant further agreed that it was the Company's prerogative as his employer to assess and determine his standard of performance vis-a-vis tin Company's expectation and requirement:.

Therefore it came as no surprise that he accepted the Company's first appraisal conducted on him as shown at pages 9 to 15 of COB-1. He confirmed that the appraisal form which was done in his presence pointed out the areas that required improvements and found to be lacking in. The Claimant also agreed that the appraisal/assessment had been carried out objectively and that COW-1 discussed each area of assessment with him though he felt and had in fact made a notation that his minimum ratings could have been slightly higher than that was actually given. Nevertheless he acknowledged and recognized that the best person to assess his performance is his superior COW-1. Except for wha