The representations made by the claimant was to the effect that having been appointed the company's senior marketing development manager by a letter of appointment dated 2 May 1997 (Exh. COA1), he was terminated vide company's letter of termination (COA3), effective 24 July 1997. Which termination according to the claimant amounted to a dismissal without just cause or excuse.

The company on the other hand contends that "the claimant was contracted on the basis of a three (3) month's probation period pursuant to a contract between the company and the claimant dated 2 May 1997", so that the company was entitled to give two (2) weeks' notice of termination during the probation period.

The main thrust of the company's case as evinced by their pleadings in paras. 6, 7 & 8 of the statement in reply are two-fold.

The first of which the company contends that since the claimant had not been confirmed at the time of his termination, and was still a probationer, therefore he was not a workman or employee within the meaning and provisions of the Employment Act or the Industrial Relations Act 1967.

It is well settled law that the question whether a person is a workman within the ambit of the industrial law, or he is an independent contractor, is to be determined by the test as to whether such contract is a contract of service or a contract for services: if it is the former then he is a workman, and if latter then he is an independent contractor. There are other tests to be applied in order to determine whether it is one or the other, as for example, the degree of control and supervision the employer has or exercises over the employee, the various terms and conditions of his appointment relating to working hours, his emoluments or wage conditions, and other incentives. If he is free to do or perform the manner of work in order to achieve the desired results the way he chooses so long as he completes the work, he may then be said to be an independent contractor:

(See: 1. Associated Air-pak Industrial Sdn. Bhd. V. Chin Yoon Loy [1992] 1 MELR 92; [1992] 1 ILR 180 p. 180;

2.; [1996] 1 ILR 379 p. 381;

3. Inchcape (M) Holdings Bhd. v. R.B. Gray [1985] 2 CLJ p. 305

In this case, the letter of appointment of the claimant, exh. COA1, contains all the ingredients of a full-time employee within the meaning and definition of a "workman" under the Act: he is designated a senior marketing development manager, with basic salary of RM5,000 and monthly incentive of RM1,500 plus a sales commission at the rate of 0.5%, it talks about probation and confirmation, there are definite working hours, and he is entitled to yearly increments and annual leave, and liable for statutory contributions like the EPF, and not the least, transfer. There is no mistake that the claimant is a workman and is entitled to reliefs under the jurisdiction of the Industrial Relations Act, over which the reference is made.

The company made an alternative plea (para. 8 of statement in reply) to the effect in the event he is a workman, "the claimant did not show good work performance during the probation period" and he was therefore terminated on grounds of poor performance.

The Industrial Court has over the years laid down general rules and procedures governing this particular area of inefficiency, and non-performance or poor performance when reliance on them are made upon which dismissal actions of employees are grounded.

In Ireka Construction Berhad v. Chantiravathan a/l Subramaniam [1995] 2 ILR p. 16 that principle is lucidly stated:

The only issue for this Court to determine now is whether the Company on a balance of probabilities has established the poor performance of the Claimant. As far as unsatisfactory performance is concerned the Industrial Court has laid down that in order to justify the dismissal of the Claimant on this ground, the Company has to establish:

(i) that the Claimant was warned about his poor performance

(ii) that the Claimant was accorded sufficient opportunity to impro

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