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2023 MarsdenLR 1900
INDUSTRIAL COURT KUALA LUMPUR
YONG CHOOI KIM – Appellant
Versus
HENGSHENDA GROUP BERHAD – Respondent
Award No: 2251 Of 2023 [Case No: 11/4-1461/22]
Dismissal of an employee during probation must be justified with just cause; failure to prove this results in unlawful termination.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Claimant dismissed without just cause or excuse - Company failed to appear and defend - Employee on probation entitled to same rights as confirmed employee - Court finds dismissal was without just cause based on principles of equity and merits. (Paras 30, 28, 24)
(B) Burden of Proof - The burden lies on the employer to prove just cause for dismissal - The Industrial Court must determine whether the misconduct alleged constitutes just cause. (Paras 26, 24)
Facts of the case:
The Claimant was employed as an Executive Secretary and was dismissed within two months of employment. The dismissal was based on alleged non-performance, which the Claimant contended was unjustified and premeditated. (Paras 7-22)
Findings of Court:
The Court found that the dismissal was without just cause or excuse due to the Company's failure to defend its actions, thus allowing the Claimant's claims. (Paras 30, 31)
Issues: The main issues included whether the dismissal was justified and if the Claimant's rights during probation were upheld. (Paras 28, 30)
Ratio Decidendi: The Court ruled that the Claimant's dismissal was unlawful as the Company did not provide just cause, failing to meet the burden of proof. Employee rights during probation are equivalent to those of confirmed employees. (Paras 30, 28)
Result: The Company is ordered to pay the Claimant a total of RM72,000.00 within 30 days. (Para 36)
| Table of Content |
|---|
| 1. reference and hearing dates established (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. claimant's employment and dismissal details (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22) |
| 3. claimant seeks reinstatement or compensation (Para 23) |
| 4. court's function and burden of proof (Para 24 , 25 , 26 , 27 , 28 , 29) |
| 5. court finds dismissal without just cause (Para 30) |
| 6. consideration of appropriate remedy (Para 31 , 32 , 33 , 34) |
| 7. order for payment of compensation (Para 35) |
[1] This is a reference from the Director General for Industrial Relations to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 (Act 177) in respect of the dismissal of YONG CHOOI KIM ("the Claimant") by HENGSHENDA GROUP BERHAD ("the Company") on 5 May 2021.
[2] This matter was fixed for hearing on 20 July 2023, 6 September 2023 and 7 September 2023. The Claimant and/or representative of the Claimant were present at all mention dates except on 17 May 2023 and 21 August 2023. The Claimant had also duly filed her Statement of Case, Bundle of Documents and Witness Statement as directed by the Court.
[3] The Company had been informed of the mention dates and hearing dates relating to the case vide all the relevant forms, notices and letters sent to the Company at its last known address. Despite being informed relating to the same, the Company failed to be present at all the mention dates. The Company also failed to file their Statement in Reply and all relevant documents despite directions given by the Court.
[4] On the first day fixed for hearing ie on 20 July 2023, the representative for the Claimant and the Claimant were present but the Company and/or its representative were absent. Following thereto, the representative for the Claimant had requested to proceed with the hearing in the absence of the Company and/or its representative.
[5] The Court, exercising its power under para 29(d) of the Industrial Relations Act 1967 , proceeded to hear the case on 20 July 2023. In the absence of the Company and/or its representative, the hearing of the case concluded on the same day.
[6] In handing down this Award the following documents were considered by the Court:
(a) the Claimant's State of Case dated 17 February 2023;
(b) the Claimant's Bundle of Documents marked as CLB1;
(c) the Claimant's Witness Statement marked as CLWS-1; and
(d) the Claimant's Written Submission dated 7 August 2023.
The Claimant's Case
[7] The Claimant commenced employment with the Company on 16 March 2021 with a monthly remuneration of RM7,200.00. The Claimant was employed as the Executive Secretary to the Group Chief Executive Officer of the Company.
[8] The Claimant was recruited through the services of the Recruitment Agency and attended a pre-hiring interview. Also in attendance were the Group Chief Executive Officer's wife and the Company's Group HR Manager. Following the said interview, the Claimant was offered the aforesaid position and the appointment letter dated 15 March 2021 further stipulates the terms and conditions of the Claimant's employment with the Company. The Claimant was also issued a Job Description on 16 March 2021.
[9] The Claimant's position as Executive Secretary was on a permanent basis and was placed on probation for a period of six (6) months which can be extended for a further period.
[10] For the first two (2) weeks upon reporting for work on 16 March 2021, instead of being assigned as the Executive Secretary to the Group Chief Executive Officer of the Company, the Claimant was assigned to work with the Vice President of the Company and carried out the duties of perusing and amending contracts/agreements, attend virtual meetings with the Company's partners in China and liaise with the Company's appointed lawyers on finalising agreements relating to business agreements.
[11] The Claimant had diligently performed and completed the said tasks including other tasks such as typing letters, typing minutes of meetings at
