The court held that the Claimant's dismissal was justified due to unsatisfactory performance during probation, and no constructive dismissal occurred as no breach of contract was established.

AWARD

Amrik Singh:

Reference:

[1] This is a reference made under subsection 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of Muhammad Azim Bin Ab Rahim (hereinafter referred to as "the Claimant") by Aerodyne Geospatial Sdn Bhd (hereinafter referred to as "the Company") on 29 October 2021.

Background

[2] The Claimant commenced employment with the Company on 2 August 2021 as a Senior Manager, Marketing and Communications (SMMC) subject to an initial probationary period of three (3) months and an extension of three (3) months with a monthly salary of RM9,000.00 vide the letter of appointment dated 11 June 2021.

[3] Towards the end of the initial three (3) months probationary period in the position, the Claimant was notified that his performance did not meet the Company's expectation and he failed to demonstrate the necessary leadership required of him in the Marketing and Communications job scope during his probation.

[4] Instead, the Company offered the Claimant a new position as Manager, Digital Marketing (MDM) with an adjusted monthly salary of RM5,800.00.

[5] In declining the offer, the Claimant sent an email to the Company on 25 October 2021 stating as follows:

"Hi Grace,

After careful consideration, I have decided to decline the offer for the new role of Manager, Digital Marketing".

[6] Subsequently, by letter dated 26 October 2021, the Company notified the Claimant that his employment contract would terminated with one (1) week's notice with his final working day being 29 October 2021.

[7] The Claimant pleads that his dismissal was without just cause and excuse and the conduct of the Company to demote his position and reduce his monthly salary constituted a breach of his contract of employment which entitled him to claim constructive dismissal. The Claimant prays that he be reinstated with backwages to be paid in full and in the event a reinstatement is not appropriate, he be granted compensation in lieu of notice and any other benefits and privileges which he would had enjoyed had he not been dismissed.

The Company's Case

[8] The Company contends that prior to the commencement date of the Claimant's employment, the Claimant was interviewed where he introduced himself as the Digital Marketing Manager at his previous employment with Servier Malaysia Sdn Bhd and his last drawn salary with Servier was RM8,500.00.

[9] Based on the information given by the Claimant, the Company in reliance upon the information given by the Claimant, offered the Claimant the position of SMMC and accorded him the monthly salary of RM9,000.00.

[10] Prior to commencement of his employment, the Company's Senior Vice President of Culture and Communications briefed the Claimant on the Company's background to facilitate a head start into the role. Upon the Claimant's commencement, Mr Kamarulazman Bin Muhamed, the Company's founder and the Group CEO, dedicated an exceptional amount of time to guide the Claimant to support his performance in fulfilling his roles and responsibilities.

[11] The situation changed following a townhall event held by the Company on 30 September 2021. The Company finds that despite the efforts and supports extended to the Claimant through out his probation period, the Claimant failed to perform satisfactorily in his scope of works.

[12] Seven instances illustrating the incompetency and incapability of the Claimant was pleaded in the Statement In Reply in relation to:

i. Lack of leadership and problem solving capacity in handling the Company's Townhall/ Events;

ii. Lacking in decision making;

iii. Tardiness in Execution of Approved Projects;

iv. Lack of Digital Expertise;

v. Weak Supervision and Feedback As A Leader;

vi. Lack of Diplomacy and Stakeholder Management as Expected of a Senior Position in the Company;

vii. Poor general work performance and did not adhere to the Company's leave application.

[13] The Company contends that based on the incidents outlined above, the Claimant had during his probation demonstrated incomp