INDUSTRIAL COURT OF MALAYSIA DI ANTARA SETHARDA A/L F.S JOBAI DAN MAJUBINA RESOURCES SDN BHD AWARD NO. : 1697 OF 2020 BEFORE : YA KALMIZAH BINTI SALLEH - PENGERUSI VENUE : Industrial Court Of Malaysia, Kuala Lumpur DATE OF REFERENCE : 01.10.2018 DATE OF MENTION : 30.10.2018; 08.01.2019; 05.03.2019; 20.03.2019;

17.07.2019; 14.01.2020 DATE OF HEARING : 16.04.2019; 30.05.2019; 02.07.2019; 06.11.2019 REPRESENTATION : Mr.Balasubramaniam Selvam And Mrs. Gunavathy Manikan Messrs Sothi Bala & Assosciates Counsels For The Claimant Mr. Darren Ee And Mr Phang Soon Mun Messrs Han & Partners Counsels For The Respondent REFERENCE :

This is reference made under Section 20 (3) of the Industrial Relations Act 1967 dated 01.10.2018 arising out of the dismissals of Setharda A/L F.S Jobai ( hereinafter referred to as ( “The Claimant”) on 07.06.2018 by Majubina Resouces Sdn Bhd. ( hereinafter referred to as “The Respondent”

AWARD [1] The Ministerial Reference in this case required the Court to hear and determine the Claimant’s dismissal by the Company on 07.06.2018. The reference was dated 01.10.2018 and received by the Court on 04.10.2018.

PROCEEDINGS IN THE INDUSTRIAL COURT [2] Document which have been tendered to the Court during hearing are as follows:

(a) Statement of case dated 26.11.2018 (b) Statement In Reply dated 06.03.2019 (c) Rejoinder dated 13.02.2019 (d) Company’s Bundle of Document- COB (e) Company’s Additional Bundle of Documents – COB 1 (f) Claimant’s Bundle of Documents – CLB (g) CD – CLB 1 (h) Transcript of the event between the claimant and the company’s Chief Operating Officer together with the Company’s Human Resources Manager – CLB 1(A)

(i) Witness statement of Loh Soon Hin – COWS 1 (j) Witness statement of low Kok Kong – COWS 2 (k) Witness statement of Christopher Wong Kei Siong – COWS 3 (l) Witness statement of the claimant – CLWS 1 (m) Witness statement of Al Ameen Bin Mohd Shariff – CLWS 2 BACKGROUND FACTS [3] The Claimant was initially appointed by the Company as a Consultant in mid of November 2017.

[4] The Claimant has accepted and duly signed a letter of offer dated 23.11.2017 wherein the company has offered the Claimant an employment as the Head of IT for the company subject to three (3) months probation period effective from 05.02.2018.

[5] The Company has issued the notice dated 24.05.2018 in accordance with clause 9 of the said letter of offer informing the claimant that the claimant was underperformend during the probation period and he did not surpassed his probation period due to the claimant unsatisfactory work performance.

[6] The Company then paid infull the claimant’s salary up to the month of May 2018 together with the Claimant’s two(2) weeks salary in lieu of notice as per clause

9 of the said letter of offer.

[7] The Claimant been dissatisfied with the company’s decision,filed the claim against the company stated that he has been dismissed by the company without just cause or excuse.

THE RESPONDENT CASE [8] The Respondent submits that the Claimant was still under the probation period and was never confirmed as a permanent employee. The status of the Claimant’s as a probationer in the company also been supported by claimant witness, Al Ameen Bin Mohd Shariff ( COWS 2)

[9] The Respondent also submits that the Claimant has failed to report to work punctually. The Company’s working hours shall be from 9.00 am until 6.00 pm. Based on the Claimant’s attendance Report showed that in month of February 2018,the Claimant did come late to work on 06.02.2018,14.02.2018,19.02.2018 and 28.02.2018. The Claimant also leave the office early on 09.02.2018,23.02.2018 and

28.02.2018. Its happen continuously in month of March,April and May 2018.

[10] The Respondent referto the case of Ahmad Fauzi A.Manaf v. Res Malaysia Sdn Bhd[2008]2 LNS 0971 Industrial Court held that :

[11] The Respondent also submits that the Claimant was drunk and unable to report for work. During trial,the claimant agreed that he was drunk and not able to report to w