An employer must prove just cause for the dismissal of an employee, including those on probation, through adequate communication of performance issues.

The function of the Industrial Court (the Court) in reference under s. 20 of the Act has been stated by the Federal Court in the of case of Goon Kwee Phoy v. J & P Coats (M) Sdn. Bhd. 1981 MarsdenLR 117 , where at p. 136, Raja Azlan CJ elaborated as follows:

... where representations are made and are referred to the Industrial Court for enquiry, it is the duty of the Court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether that reason has or has not been made out. If it finds as a fact that it has not been proven then the inevitable conclusion must be that the termination or dismissal was with or without just cause or excuse.

The proper enquiry of the Court is the reason advanced by the employer and that Court or the High Court cannot go into another reason not relied upon by the employer or find one for him.

It is a basic principle of industrial relations jurisprudence that in a dismissal case the employer must produce convincing and cogent evidence that the employee had been incapable of performing his duties for which he had been dismissed. The burden of proof lies on the employer on a balance of probabilities to adduce evidence that the workman was dismissed for just cause and excuse.

Generally, it is correct to state that the employee cannot assume confirmation in the absence of an express confirmation from his employer. The employee continues to be on probation until he is expressly confirmed and if no action is taken by the employer either by way of confirmation or by way of termination, he is assumed to continue in service as a probationer. In KC Mathews v. Kumpulan Guthrie Sdn. Bhd. [1981] 1 MELR 1, [1981] 2 MLJ 320; [1981] CLJ 62 at p. 321, Raja Azlan CJ, and again in V Subramaniam & Ors v. Craigielea Estate [1982] 1 MLRA 542; [1982] 1 MLJ 317 at p. 319, Suffian LP, quoted with approval the passage from the judgment of Das Gupta J in Express Newspapers Ltd v. Labour Court & Anor, AIR [1964]806 which reads as follows:

... There can, in our opinion, be no doubt about the position in law that an employee appointed on probation for six months continues as a probationer even after the period of six months if at end of the period his services had either not been terminated or he is confirmed. It appears clear to us that without anything more an appointment on probation for six months gives the employer no right to terminate the service of an employee before six months had expired - except on the ground of misconduct or other sufficient reasons in which case even the services of a permanent employee could be terminated. At the end of the six months period the employer can either confirm him or terminate his services, because his services is found unsatisfactory. If no action is taken by the employer either by way of confirmation or by way of termination, the employee continues to be in service as a probationer.

It is pertinent to be reminded that an employee on probation enjoys the same rights as a permanent or confirmed employee and his or her services cannot be terminated without just cause or excuse. The requirement of bona fide is thus essential for his dismissal. If the dismissal is found to be a colourable exercise of the managerial power to dismiss, or a result of discrimination, or unfair labour practice, the Industrial Court has the jurisdiction to interfere and set aside such dismissal., EMPLOYees on probation come within the purview of s. 20(1) of the Act and the Industrial Court has threshold jurisdiction to determine the issue whether their dismissal was without just cause or excuse because they being on probation were still workmen. See Khaliah Abbas v.

Pesaka Capital Corporation Sdn. Bhd. [1997] 3 CLJ 837 . However Khaliah's case does not expound the substantive law pertaining to a probationer but relates to the specific question that if a