The termination of a probationer can be justified based on unsatisfactory work performance, and procedural safeguards must be followed, ensuring a bona fide assessment by the employer.

Introduction

[1] The applicant, Lye Sook Fun, a probationer with AmBank (M) Berhad ("the Bank"), complained that she was dismissed without just cause and excuse when she was terminated from her employment. The dispute was referred to the Industrial Court for adjudication under s 20 of the Industrial Relations Act ("the Act"). The Industrial Court in its award handed down on 8 September 2021 held that the termination was with just cause and excuse.

[2] The applicant filed the instant judicial review application for an order of certiorari to quash the award of the Industrial Court and for consequential reliefs, or in the alternative, for the dispute to be remitted to the Industrial Court for retrial. On 29 May 2023, I dismissed the application. This judgment contains the reasons for my decision.

Background Facts

[3] The applicant was employed as an Associate Audit Head (VP1) - Group Internal Audit Department ("GIAD") - WB Coverage with effect from 11 May 2018. The designation was subsequently changed to Audit Head with all other terms and conditions of employment remaining the same. The applicant was on six months' probation. At the end of the six months ie on 11 November 2018, she was not confirmed. On 28 January 2019, she received a letter informing that her probation period had been extended three months to 11 February 2019. Thereafter, she remained on probation until 9 May 2019 when the Bank by letter dated a day earlier informed that she would not be confirmed due to unsatisfactory work and failing to meet the set standard of performance.

[4] The Bank's decision was made after it had given an opportunity for the applicant to improve her work performance. This was done by putting the applicant on a performance improvement plan ("PIP") beginning 15 November 2018 with sufficient time to improve. The applicant was warned that the failure to improve would result in her dismissal.

[5] It was not in dispute that the applicant's job scope was to carry out four audits for the Financial Year 2018/2019 and her immediate superior was Shirley Ng Geok Jiuan ("COW-1"), the Deputy Group Chief Internal Auditor. The four audits were: (i) the Enterprise Banking audit ("first task"); (ii) the Commercial Banking Klang Valley Region audit ("second task"); (iii) the Commercial Banking Northern Region audit ("third task") and (iv) the Commercial Banking Sarawak Region audit ("fourth task") (the tasks would be referred to interchangeably with the word "audit"). The Bank alleged delay in completing two of the tasks while the remaining two were not completed.

The Applicant's Case At The Industrial Court

[6] The applicant was represented by a representative of the Malaysian Trade Union Congress ("MTUC"). The statement of case was in great detail running to some 90 paras with a rejoinder in response to the statement in reply. In support of her claim the applicant advanced the following grounds. There is overlap in the grounds which can be su