Employers must substantiate claims of poor performance with evidence and opportunities for improvement; failure to do so may lead to wrongful dismissal.

[1] This matter was referred to the Industrial Court by way of a Ministerial reference under s 20(3) of the Industrial Relations Act 1967 on 26 December 2006, for an award in respect of the dismissal of Tiong Chii Chiong ("the claimant") by Surface Profile Sdn Bhd ("the company").

The Facts

[2] The claimant now aged 50 years, commenced employment with the company on 16 April, 2004 as a Marketing Executive. The company is in the business of supplying and applying epoxy flooring. The claimant is the brother-in-law of the Managing Director of the company (COW1). After having worked in the company for about two years, the claimant fell out of favour with COW1. On 28 June 2006, the company terminated the employment of the claimant and provided two reasons. The first reason being the claimant's unsatisfactory performance in supervising the Subang Parade job and second reason being that the claimant had failed to bring in sales. This was disputed by the claimant. His contention was that he was dismissed, when he asked for his sales commission.

Whether The Claimant Was A Poor Performer?

[3] The company in the letter of termination dated 28 June 2006 made reference to two specific instances, which formed the basis for the dismissal of the claimant and they were as follows:

(i) The company's client Fosroc Sdn Bhd had on 21 June 2006 complained that in respect of Subang Parade Project, the claimant could not commit to works or purchase materials at the site. Further, that the claimant failed to comply with the instruction not to be present at the Subang Parade site;

(ii) That the claimant had failed to bring in sales. The Court will now proceed to inquire into the issue of poor performance.

Company's Case

[4] The Managing Director gave evidence for the company as COW1. He stated that the claimant was appointed as a Marketing Executive. His work was to promote and secure jobs for the company. As regard the complaint by Fosroc, he said that in mid February 2006, the company had secured work from Fosroc to install epoxy flooring finish at the car park at Subang Parade. He said that he had directed the claimant to supervise the project as he was not productive in securing work for the company. In the course of the claimant supervising the work, Fosroc issued a site memo to him dated 21 June 2006 requesting him to replace the claimant as the site supervisor as he was found to be incompetent. He said that pursuant to the said memo, he gave a verbal warning to the claimant and instructed him to withdraw from the site. However, the claimant continued to be present at the site and this caused Fosroc to issue the second site memo, warning that they did not want to see the claimant at the site. He said that he then immediately called the claimant and told him to show cause. He said that the claimant was rude to him and did not give any explanation for his action.

[5] As regard the issue of sales, he said that the claimant had to bring in sales of RM50,000 a month but he had only brought in sales of RM60,000 in 2006. He said that he had given the claimant verbal warnings on his poor sales and on 4 April 2006, had issued a written warning to the claimant. In spite of the opportunity given to improve, the claimant failed to do so and this led to his dismissal.

Claimant's Case

[6] The claimant said that he was 41 years old, when he was employed the company. He had previously worked in the construction field and that he was employed because the company knew