The dismissal of an employee for poor performance and hygiene non-compliance is justified when the employer demonstrates the misconduct through proper evidence and disciplinary procedures in accordance with the Industrial Relations Act.

Zulhelmy Hasan:

Reference

[1] This is a reference made by the Director General of Industrial Relations Malaysia dated 21 March 2022 pursuant to s 20(3) of the Industrial Relations Act 1967 which was received by the industrial Court on 28 March 2022 arising out of the alleged unfair dismissal of Chew Leong Eng (hereinafter referred to as "the Claimant") by Kuala Lumpur Convention Centre Sdn Bhd (hereinafter referred to as "the Company") on 27 September 2021.

Factual Background

[2] The parties to the dispute before this Court are Chew Leong Eng (also known as Patrick Chew), who held his last position as Senior Executive - Executive Chef in Kuala Lumpur Convention Centre Sdn Bhd which owns Traders Hotel, Kuala Lumpur which is operated by Shangri-La at the material time. The dispute before this Court is over the termination of the Claimant's services with the Company on 27 September 2021. The Claimant avers that upon the onset on Movement Control Order (MCO) enforced by the Government, however the Hotel faced serious challenges which coincided with the commencement of multiple disciplinary proceedings against the Claimant before the Claimant's eventual dismissal on 27 September 2021.

[3] Vide an Employment Letter dated 8 May 2018 (pp 1-3 of COB), the Claimant was offered a position as a Senior Executive - Executive Chef in the Company's hotel known as the Traders Hotel Kuala Lumpur (hereinafter referred as "the Hotel") issued by the Hotel's General Manager. Thereafter the Claimant commenced work on 18 June 2018 serving a probationary period of six (6) months after which he was confirmed in his position on 17 December 2018 vide a Letter of Confirmation dated 13 December 2018. The Claimant was also appointed as the Hotel's Food, Safety Team Leader (FS Team Leader) on 8 October 2020 vide a letter dated 28 September 2020. The Claimant last drawn monthly salary was RM12,920.00.00 with a monthly phone allowance of RM60.00.

[4] The Claimant was responsible for the overall administration and operation of the kitchen of the Hotel in order to give maximum satisfaction and quality to the guests at maximum profitability of the Hotel including food cost control, hygiene and cleanliness, new menus planning and promotions, consistency of food quality, food production, human resources and general duties within the kitchen as within the scope of the Claimant's job description (pp 4-11 of COB). At the material time, the Claimant reported directly to Daniel Pascal Kaeflein (COW-2), the Hotel's General Manager.

[5] Sometimes in December 2019, there were concerns regarding high food cost wherein the food cost had far exceeded the budget for December 2019. As such, the General Manager; Daniel Pascal Kaeflien had a discussion with the Claimant vide an email dated 2 January 2020 in relation to:

(i) That all points of the Claimant's job description need to be covered;

(ii) That the initial focus of the Claimant was pro-active management of the Shangri-la Food safety (SFS) hygiene and food cost;

(iii) That the Claimant must give his utmost attention to SFS hygiene and food cost which are the core issues in the kitchen together with Food Quality, Colleagues Engagement and Product Development;

(iv) That the result for food cost for December 2019 exceeded the budget too far from 32.5% to 43.2% without pre-planning or counter measures being taken within the month; and

(v) That the Claimant to contact the General Manager anytime for assistance or if the Claimant have any concerns.

[6] By email dated 30 February 2020, the General Manager addressed to the Claimant of his concerns rega