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2023 MarsdenLR 93
INDUSTRIAL COURT KUALA LUMPUR
SAIFUL KHAIRI MOHD SHAMSURI – Appellant
Versus
LENDLEASE PROJECTS (M) SDN BHD – Respondent
Award No: 2244 Of 2023 [Case No: 22/4-1153/22]
The employer bears the burden of proving just cause for dismissal, and refusal to comply with a Performance Improvement Plan can justify termination.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Claimant dismissed for failing to complete Performance Improvement Plan (PIP) after receiving 'Behind Track' ratings - Claimant alleged lack of communication regarding job performance and PIP, which was denied by the Company - Court found that the Claimant was informed of the PIP and its requirements - Just cause for dismissal established. (Paras 26-48)
(B) Employment Law - Burden of proof in unfair dismissal claims rests with the employer to prove just cause for termination - Evidence showed that the Claimant refused to comply with PIP and demonstrated insubordination. (Paras 26-29)
Facts of the case:
The Claimant was dismissed by the Company after failing to improve his performance despite being placed on a PIP. The Claimant contested the dismissal, alleging insufficient communication about his job and the PIP, but evidence showed he was adequately informed. (Paras 6-25)
Findings of Court:
The Court found that the Claimant's refusal to participate in the PIP justified the termination, as the Company had provided ample opportunities for improvement. (Paras 46-48)
Issues: The key issues were whether the Claimant was informed of the reasons for his termination and whether the termination was with just cause. (Paras 30-30)
Ratio Decidendi: The Court ruled that the Claimant's failure to comply with the PIP and his insubordinate behavior warranted the termination, establishing that the Company acted with just cause. (Paras 46-48)
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. reference for dismissal complaint (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. claimant's performance and pip issues (Para 7 , 9 , 10 , 11 , 12 , 20 , 21 , 24 , 25) |
| 3. court's findings on claimant's refusal and performance (Para 8 , 13 , 14 , 15 , 19 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45) |
| 4. just cause for termination established (Para 46 , 47) |
| 5. claimant's case dismissed (Para 48) |
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Saiful Khairi Bin Mohd Shamsuri (hereinafter referred to as "the Claimant') by Lendlease Projects (M) Sdn Bhd (hereinafter referred to as "the Company") on 15 October 2021.
[2] The reference by the Director General of Industrial Relations (DGIR) in this case required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 15 October 2021.
I. Procedural History
[3] The Court received the letter pertaining to the DGIR reference under s 20(3) of the Industrial Relations Act 1967 on 15 July 2022.
[4] The matter was fixed for mention on 23 August 2022, 20 October 2022 and 20 March 2023.
[5] The trial commenced on 19 April 2023 and concluded on 9 June 2023.
II. Factual Background
[6] The Claimant commenced his employment with the Company as a Site Supervisor (Site Construction IV-DPP41308) on 22 January 2019. His last drawn salary was RM5,160.00.
[7] The Claimant contends that throughout his employment with the Company, he was never informed of his job scope and functions. His Job Description as well as instructions pertaining to work were informed to him verbally by the Company's management from time to time and he had never received a detailed written Job Description. The Claimant would also send his work reports daily vide video calls as instructed by the Company's management from time to time. The Claimant was also not informed of the evaluation of his job performance during his work tenure with the Company.
[8] As a Night Shift Site Supervisor, the Claimant was required, inter alia, to:
i. contribute to routine and complex construction activities; and
ii. apply construction and/or trade skills to contribute to construction projects and effective daily operations of a construction site.
[9] The Company denies that the Claimant was not informed and/or not awar5e of any performance review guidelines. The Company has in place guidelines, processes and/or procedures relating to the performance review process which are made available on the Company intranet.
[10] The Claimant is fully aware of his job responsibilities and functions or alternatively, he ought to be aware of his job responsibilities and functions when he accepted the offer and/or commenced employment with the Company. Furthermore, the Claimant's previous colleagues, supervisors and/or direct line managers had regular catch-ups with the Claimant to check on him. In any event, the information pertaining to the job description and responsibility for each position in the Company is available on the Company's platform.
[11] With regards to the Claimant's yearly performance review, the Company contends that:
i. for financial year 2019, the Claimant received "On Track" performance rating;
ii. however for financial year 2020, ie from 1 July 2019 to 30 June 2020, the Claimant received "Behind Track" performance rating;
iii. for financial year 2021, ie 1 July 2020 to 30 June 2021, the Claimant again received "Behind Track" performance rating. The Company found that, amongst others, the Claimant needed to work on communicating with and contributing more to the team, participating in activities as well as listening to directions from his own team and managers.
[12] Besides the performance reviews, the Company also had a discussion with the Claimant on 13 August 2021 where the Company highlighted areas where the Claimant's performance was falling short of expectations for
