When this matter came up for hearing on 16 March 1995, the claimant was present with his solicitor. The company was absent though they filed the statement in reply. The company had been informed of the hearing date. In fact this matter had been adjourned earlier at the request of the company.

In the light of the fact that the matter had been pending for two years, Mr. Tan Get Joo, Counsel for the claimant informed the Court that he was instructed by the claimant to apply to the Court to invoke s. 29(d) of the Industrial Relations Act to proceed with hearing exparte.

The Court stood down the matter until 9.45 a.m. When the company failed to turn up for the hearing, the Court proceeded with hearing ex-parte.

The claimant was employed by the company as the registrar/principal of its Business Division and Professional Courses Division on probation vide letter dated 15 July 1992. He was placed on probationary period for 6 months from 15 July 1992. The claimant was paid a monthly salary of RM3,000 with incentive allowance base on 30% of the net profit derived from the Professional Courses Division. The Business Division incentive allowance is at the discretion of the director of the company.

By way of letter dated 9 November 1992, the company terminated the employment of the claimant with immediate effect without assigning any reason whatsoever.

The claimant contends that the company never indicated to him any dissatisfaction, in relation to his work or conduct. The company also failed to give the claimant any notice to show cause or warning prior to his dismissal.

The company in its statement in reply states that the claimant was at all material times under probationary period. The claimant's service was terminated while he was still under the six months probationary period.

The company further informs that the claimant during the probationary period failed to discharge his duties satisfactorily as required under para. 2 of the letter of appointment. The company received complaints from fellow lecturers of the centre and students over the administrative policies of the centre resulting in adverse effects to the centre's business including low students intake. Encik Suhaimi Mansor had verbally issued a reminder and warning to the claimant to improve the working and learning conditions of the centre. The company contends that only after the claimant had failed to satisfy the company of his ability to effectively run the centre, did the company issue the said termination.

The claimant in his evidence said that after he joined the company there was an increase in the number of students and also an increase in profit. He also said that towards the end of September Encik Suhaimi of the company came to see him and informed him that he was going to America and if the claimant had any problems, he could liaise with the general manager of the company Encik Aziz.

The Industrial Court has held that employment of a person on probation does not give the employer a right to terminate the contract at his absolute discretion. Even at Common Law the employer's right to determine the contract during the probationary period depended on the employer being reasonably satisfied as to the unsuitability of the employee. That is to say, the employer's decision should be made bona fide, not arbitrarily or capriciously. - C.P. Mills, in Industrial Dispute Law In Malaysia.

The company has not produced witnesses to prove its case. A bare allegation by the company is not sufficient to reb