INDUSTRIAL COURT OF MALAYSIA CASE NO. 4(23)/4-772/13 BETWEEN KAMAL AZIZUL BIN AZIZ AND AMBANK (M) BERHAD AWARD NO : 475 OF 2017

INDUSTRIAL COURT OF MALAYSIA CASE NO. 4(23)/4-772/13 BETWEEN KAMAL AZIZUL BIN AZIZ AND AMBANK (M) BERHAD AWARD NO : 475 OF 2017 BEFORE: VENUE: Y.A. PUAN SAROJINI A/P KANDASAMY Chairman (Sitting alone) Mahkamah Perusahaan Malaysia Kuala Lumpur DATE OF REFERENCE : 27.03.2013 DATES OF RECIEPENT : 10.04.2013 OF DATE OF REFERENCE DATES OF MENTION : 03.06.2013, 03.07.2013, 05.08.2013, 04.09.2013, 13.09.2013, 16.10.2013, 14.05.2014, 19.05.2014, 26.06.2014, 11.08.2014, 18.03.2015 DATES OF HEARING : 28.10.2015, 11.04.2016, 13.05.2016, 14.06.2016, 19.07.2016 REPRESENTATION : Mr. Mohsin bin Abd. Kader of Messrs. Abdul Malik Zambri & Co Counsel for Claimant Mr. A. Ramadass together with Mdm. T. Kavitha of Messrs. Ramadass & Associates Counsel for Company 1

REFERENCE This is a reference by the Honourable Minister of Human Resources under section 20(3) of the Industrial Relations Act 1967 for an award in respect of a dispute arising out of the dismissal of KAMAL AZIZUL BIN AZIZ (Claimant) and AMBANK (M) BERHAD (Bank). 2

AWARD THE REFERENCE 1. The parties to the dispute are Kamal Azizul bin Aziz (Claimant) and AmBank (M) Berhad (Bank). The dispute which was referred to the Industrial Court by way of a Ministerial Reference under section 20(3) of the Industrial Relations Act 1967 made on 27.03.2013 is over the dismissal of the Claimant by the Bank on 14.07.2012. DOCUMENTS 2. The relevant cause papers filed and referred throughout the hearing are as follows: (a) Claimant's Statement of Case dated 27.06.2013 (SOC); (b) Bank's Statement in Reply dated 04.09.2013 (SIR); (c) Rejoinder dated 16.10.2013; (d) Bank's Bundle of Document (COB-1); (e) Bank s Bundle of Documents II (COB-2); (f) Claimant's Bundle of Documents (CLB); (g) Claimant's Witness Statement (CLWS-1); (h) Bank's Witness Statement by Mr. Soundarajan Iyacannoo (COWS-1); 3

(i) (j) Bank's Witness Statement by Mr. Laurence Ong Wooi Keat (COWS-2); and Bank's Witness Statement by Ms. Cristine Cheim Mei Ching (COWS-3). THE BANK'S CASE 3. The Bank called the following witnesses to give evidence during the hearing on 28.10.2015, 11.04.2016 and 13.05.2016: (a) COW-1: Mr. Soundarajan Iyacannoo, who at the material time was the Senior Manager, Human Resources Department. He is currently the Vice President Human Resources Department; (b) COW-2: Mr. Laurence Ong Wooi Keat, who at the material time was the Head of Group Operational Risk, Group Risk Management in the Bank. He is currently the Head of Group Operational Risk, RHB Bank; and (c) COW-3: Ms. Cristine Cheim Mei Ching, who at the material time was the Senior Manager, Relationship Management, Group Human Resource. She is currently the Senior Manager Human Resources Relationship Management, Hong Leong Bank. 4. The Claimant commenced his employment with the Bank on 10.03.2009 with the position of Manager, Risk Management (M2) Group Risk Management [COB-1 p. 3-5]. He was one of the managers 4

in charge of developing policies for operational risk management. He was put under the supervision of COW-2. At no point was the Claimant designated as Section Head of any area in the department or required to perform duties or responsibilities as such. 5. On 21.10.2009, the Claimant signed the Performance Management Form where he has been informed that his confirmation was to be on hold due to non-performance which the Bank subsequently reaffirmed on 03.03.2010 [COB-2 p. 8-14 and 15-22]. The Bank conveyed to the Claimant that due to his poor performance wherein he was given a low rating of 1.39, he was not given any bonus or salary increments. The Claimant s non-performance had also been raised to the Chief Risks Officer upon the extension of his probationary period. The Claimant was subsequently put under the Performance Improvement Plans process. 6. Between June 2011 and July 2011, the Claimant had expressed interest in another internal role within the department where the Senior Manager had given the Claimant the opportunity to complete an assignment in order to assess his suitability. The Senior Manager had communicated to the Claimant in an e-mail that the Claimant was unable to deliver the assignment on time and with sufficient depth and breadth of risk analysis. 7. On 10.02.2012, the Bank issued a letter to the Claimant on the final extension of his probationary period [COB-1 p. 7-8]. In its letter, the Bank explained to the Claimant that he failed to demonstrate the skills and competencies required in order to be confirmed in employment. The 5

Bank gave the Claimant a final opportunity to improve and achieve the required standard of performance. The Claimant raised no objection or protest over the extension of probationary period. 8. One of the tasks required of the Claimant during the 3 months of final extended probation was to review 2 gazetted Acts of Parliament, namely the Personal Data Protection Act 2010 and the Competition Act 2010. However, vide e-mail dated 01.03.2012 [COB-1 p. 21-22], COW-2 informed the Claimant that he had failed to adhere to the requirements that were given. Subsequently COW-2 further extended the dateline to 02.03.2012 in the interest of giving the Claimant a full opportunity to submit an analysis of sufficient substance for further development. 9. Instructions had been conveyed to the Claimant that he should notify COW-2 personally on any leave to be taken, including medical leave. However, on 28.02.2012, the Claimant only informed the department s secretary of his medical leave and upcoming knee surgery from 27.02.2012. COW-2 never received the analysis of the 2 gazetted Acts of Parliament from the Claimant that was due on 02.03.2012 as the Claimant was on medical leave until 06.06.2012. COW-2 issued e-mails to the Claimant on 08.03.2012 and 09.03.2012 reprimanding him for not providing notification regarding his medical leave extension beyond the week of 28.02.2012. 10. The Bank vide letter dated 23.05.2012 [COB-1 p.18-19], issued a letter to the Claimant titled Frustration of Contract/Unsatisfactory Probationary Service, highlighting the issues the Bank was facing with the Claimant. The Bank further instructed the Claimant to report back to 6

work on 07.06.2012 failing which his services would be terminated for frustration of contract. 11. Subsequent to the Claimant s return to work, an e-mail had been conveyed to the Claimant to provide an update status on his work assignments [COB-1 p. 20-21]. COW-2 also gave an extension to 11.06.2012 in order to enable the Claimant to complete his 1 st weekly deliverables which was previously due on 02.03.2012. However, the Claimant failed to comply with the instructions. 12. On 11.06.2012, upon a request from COW-2 for an explanation in person, the Claimant conveyed that he did not wish to discharge his duties as instructed [COB-1 p. 20]. On 12.06.2012, COW-2 called the Claimant to provide an explanation in person in the presence of COW-3 to which the Claimant exhibited elements of insubordination and inaction [COB-1 p. 23]. The Claimant was observed as taking an extended lunch hour break (11:45am to 2:40pm) on the same day. The Claimant failed to provide a reasonable explanation for this [COB-1 p.27]. 13. COW-2 then initiated an investigation into the Claimant s online activities and the investigation revealed that the Claimant had used his office e-mail account to send e-mails containing internal bank documents to his private e-mail accounts, which was a violation of the Bank s Information Classification and Handling policy. COW-2 then proceeded to instruct the IT department to lockdown all electronic channels for data transfer. 7

14. Subsequently, the Bank issued a Show Cause Letter on 14.06.2012 [COB-1 p.32-36] wherein the Bank, inter alia, leveled 5 (five) allegations of misconduct against the Claimant and requested the Claimant to show cause in writing in response to the allegations. The Claimant was suspended from employment effective from 15.06.2012. The Claimant was given the opportunity to gather his personal items. However, when it was found out that the Claimant was attempting to remove internal/confidential documents, he was stopped by COW-2 and COW-3 from doing so. 15. The Claimant replied to the Bank s Show Cause Letter vide letter dated 19.06.2012 [COB-1 p.45-49]. The Bank however found the Claimant s reply to be unsatisfactory in response to the serious allegations in the Show Cause Letter. In light of the seriousness of the allegations, the Bank had no choice but to issue a Letter of Non- Confirmation on 13.07.2012 [COB-1 p.61]. 16. The Bank averred and will so submit that any employer similarly circumstanced would have also not confirmed the Claimant in his employment. Further, the Bank averred that it could no longer repose the necessary trust and confidence required to maintain the Claimant in employment. The Bank averred that the Claimant s actions and/or misconduct had fundamentally breached the implied and/or express terms and conditions of the Claimant s employment. The Bank contended and will so submit at the hearing that in arriving at the decision to not confirm the Claimant, the Bank took into consideration all relevant factors, mitigation and circumstances. 8

17. The Bank prays that this Court holds that the Claimant was not confirmed for just cause or excuse and as such, dismisses the Claimant s claims. THE CLAIMANT'S CASE 18. The Claimant gave evidence before the Court on 14.06.2016 and 19.07.2016. 19. The Bank has vide its letter dated 18.02.2009 appointed the Claimant as Manager (M2) Group Risk Management in the Bank with a basic salary of RM9,000.00. The Claimant commenced his tenure of employment on 10.03.2009 and was on probation for a period of six months. 20. On 10.03.2009, the Claimant was asked to report himself to COW- 2. The Claimant was briefed with the job specification and duties among others responsibility as Section Head, Policy & Methodology. During March 2009, the Claimant was assigned with two (2) subordinates to assist him in his job function. One was Assistant Manager (M1), Mr. James Looi Tuck Wai and another Senior Executive (E2) Mr. Tan Ka Hui. During that time Mr. James Looi Tuck Wai was serving his notice period for resignation. The Senior Executive Mr. Tan Ka Hui later left the Bank in June 2009. During June 2009, the Claimant was left with no subordinates. In June 2009 the Claimant met with COW-2 to discuss regarding the vacant position of subordinates in his section. Later COW- 2 informed the Claimant that a newly joined staff Ms. Denise Phang (Executive with job grade E1) will assist the Claimant. Ms. Denise Phang 9

previously worked under COW-2 and left the Bank before rejoining the Bank in May 2009. 21. The Claimant s relationship with COW-2 was amicable and professional and he was assigned with the job functions as usual. However when Ms. Denise Phang joined the Bank most of the job functions of the Claimant was handed over to Ms. Denise Phang. Ms. Denise Phang was told to report directly to COW-2. 22. In the middle of September 2009 the Claimant met with COW-2 to discuss on his confirmation of employment, appraisals and Key Performance Index. The Claimant was told that the confirmation, appraisals and Key Performance Index was yet to be settled. During the span of 2009 until 2011 the Claimant had a few times met with COW-1 and Miss Iza Rahayu, Human Resource Manager to discuss about his impending status of employment. But there was no final confirmation on the status of his employment. 23. In 2011, Mr. Tan Ka Hui rejoined the Bank as Section Manager. All the job functions of the Claimant was handed over to Mr. Tan Ka Hui. There were two Managers with the same portfolio in the Policy & Methodology Section. The Claimant was not called to attend any meetings and Ms. Denise Phang had never submitted any report to the Claimant. 24. In early April 2011, the Claimant averred that he had applied for a personal loan from Bank Islam Malaysia Berhad. The Claimant had requested a letter of confirmation of employment to be forwarded to 10

Bank Islam Malaysia Berhad from the Bank. The Claimant was given the letter of confirmation dated 21.04.2011 by the Human Resources Department. The letter of confirmation of employment dated 21.04.2011 clearly stated that the Claimant was a permanent employee. The Claimant also averred that he was paid his salary on the 22 nd day of each month by the Bank similar to a permanent employee. On the other hand a probationary employee was paid his salary on the 30 th day of the month. 25. The Claimant contended that he has been given numerous assignments and he has completed them. On 24.11.2011, the Claimant s internet access was cut off and it was not connected till the Claimant was terminated from the Bank. 26. On 10.02.2012 the Claimant was given a letter of final extension of probation where among others his probationary period was extended for another three months effective 10.02.2012 with the requirement to undertake an assignment on the complete analysis of 2 gazetted Acts of Parliament, namely, the Competition Act 2010 and the Personal Data Protection Act 2010. Two weeks after being assigned with the analysis, the Claimant had a first review session with COW-2 and COW-3 on 24.02.2012. 27. On 29.02.2012, the Claimant after suffering from knee pain went for a medical check-up at Tawakal KPJ Hospital. He was diagnosed with acute ligament tear which required corrective surgery. The Claimant underwent knee surgery after been given the Bank s Guarantee Letter by the Human Resources Department. 11

28. On 06.06.2012 the Claimant received an e-mail from COW-3 informing him that the Bank had made an attempt to serve upon him a letter of termination of contract due to frustration. The letter of termination dated 23.05.2012 was attached to the e-mail. The letter of termination is clearly a premeditated plan to terminate the Claimant prematurely and was a mala fide exercise. The Claimant was denied an opportunity to give his explanation and reply to the allegations contained in the said letter of termination. 29. After the expiry of the medical leave the Claimant resumed his duty on 07.06.2012. On 14.06.2012, COW-2 and COW-3 called up the Claimant for a meeting after office hours. The Claimant was served with a Show Cause Letter dated 14.06.2012 with two weeks suspension order effective immediately. The Claimant has been chased away from the office by COW-2 immediately. However after a few negotiations the Claimant was allowed to retrieve his personal documents including his personal files to substantiate his claim. The Claimant averred that he was given only five (5) minutes to do so in the presence of COW-2 and COW-3. The Claimant further averred that COW-2 and COW-3 had confiscated some of the documents belonging to him. The Claimant has sent a letter dated 15.06.012 to COW-2 that was acknowledged receipt by the Human Resource Department requesting him to furnish the list of documents that had been confiscated. Until this day, the Bank has failed to furnish the list of documents as required. 30. The Claimant replied to the Show Cause Letter via letter dated 19.06.2012 which was served by hand to the Human Resources Department. On 15.07.2012 the Claimant received a Letter of Non- 12

Confirmation of appointment as Manager via letter dated 13.07.2012. The letter among others informed the Claimant that the non-confirmation comes into effect from 14.07.2013, and he was awarded two weeks salary in lieu of notice. 31. The Claimant averred that he was terminated without proper and due inquiry. There has been no actual complaint, warning, appraisal, notice to remedy given except for the letter of frustration of contract dated 23.05.2012 and the Show Cause Letter dated 14.06.2012. The Bank has also never arranged any training course for the Claimant or assigned the Claimant to a training facility. The Bank has also failed to give proper appraisals and Key Performance Index and has prolonged the extension of the Claimant s probationary period up to forty (40) months. 32. The Claimant contended the termination was mala fide and he was victimized by the Bank and the termination was contrary to fair labour practice. He further contended that the termination was without justification and sufficient reasons. The Claimant had suffered difficulty in applying for new jobs and was unable to secure a job in the same industry. The Claimant prays for reinstatement of his position with no loss of seniority and for back wages due to him from the date of termination pursuant to section 20 of the Industrial Relations Act 1967. The Claimant further prays for punitive damages pursuant to section 30 of the Industrial Relations Act 1967 and other equitable relief or other alternative remedy allowed within the jurisdiction of the Industrial Court. 13

THE LAW AND BURDEN OF PROOF 33. The function of the Industrial Court has been propounded by Mohd. Azmi FCJ in the Federal Court case of Milan Auto Sdn Bhd v Wong She Yen [1995] 4 CLJ 449 which is as follows: As pointed out by this court recently in Wong Yuen Hock v Hong Leong Assurance [1995] 3 CLJ 344, the function of the Industrial Court in dismissal cases on a reference under s 20 is twofold: first, to determine whether the misconduct complained of by the employer has been established and secondly whether the proven misconduct constitutes just cause or excuse for dismissal.. 34. It is trite law that the company bears the burden to prove that the Claimant had committed the alleged misconduct and that the misconduct warrants the Claimant's dismissal. In Ireka Construction Berhad v Chantiravathan Subramaniam James [1995] 2 ILR 11 (Award No 245 of 1995) it was stated as follows: It is basic principle of industrial jurisprudence that in a dismissal case, the employer must produce convincing evidence that the workman committed that offence of which the workman is alleged to have been dismissed. The burden of proof is on the employer to prove that he has just cause or excuse for taking the decision to impose the disciplinary measure of dismissal upon the employee. The just cause must be, either a misconduct, negligence or poor performance based on the case.. 35. The Company needs only to prove misconduct justifying the dismissal or termination on the balance of probabilities [see Telekom Malaysia Kawasan Utara v Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314]. 14

ISSUES 36. The Federal Court in the case of Goon Kwee Phoy v. J.P. Coats (M) Bhd [1981] 1 LNS 30 had laid down the proposition of law that the Industrial Court is restricted in its inquiry into the veracity of the reason chosen by the employer for the dismissal. Raja Azlan Shah CJ (Malaya) speaking for the Federal Court states at p. 136 as follows: "Where representations are made and are referred to the Industrial Court for inquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to inquire whether that excuse or reason has or has not been made out. ". 37. In the present case, it is the Bank s contention that the Claimant was not confirmed in his position as Manager, Risk Management (M2) Group Risk Management in view of the Claimant s overall unsatisfactory performance, as well as his negative attitude and behaviour during the probationary period. 38. In the circumstances this Court s function is limited to determining whether the termination of the Claimant s employment without confirming him was with just cause or excuse. EVALUATION OF EVIDENCE AND FINDINGS OF THE COURT 39. On the issue of whether an employee can deem himself confirmed once the initial period of probation had expired and there was no 15

notification by the employer regarding the employee s status, the law in respect thereto has been clearly explained by the Federal Court in K.C Mathews v Kumpulan Guthrie Sdn Bhd [1981] CLJ (Rep) 62 as follows: The appellant's Counsel raised two points in the appeal; first that at the end of the first probationary period the appellant became confirmed in his appointment unless he was told that either he was not confirmed or he would have to undergo a further period of probationary service. Secondly, the dismissal was bad because there had been no inquiry. The appeal was dismissed.. The Federal Court went on to hold that: No enquiry needed to be called for in the circumstances of the case. There was evidence which the appellant could not and did not deny that in the course of his brief employment he had been told on several occasions of the unsatisfactory nature of his work, his lack of industry and initiative.his acceptance of a further period of probationary employment must be regarded as an acceptance of the condition that he had to prove his suitability for confirmed service. Unfortunately, his willingness was never translated into action. The appellant knew at all times how dissatisfied his employer was with him and he must have known, having regard to the terms of the letter of appointment, that he was running the risk of dismissal. All he had to do was to produce the work required of him. He never did. The enquiry that he now required would have served no useful purpose. In so far as his claim of confirmed service was concerned, Counsel for the respondent relied on the following passage from the judgment of Das Gupta J, in Express Newspapers Ltd. v. Labour Court & Anor. [1964] AIR SC 806: 16

This contention is, in our opinion, wholly unsound. There can, in our opinion, be no doubt about the position in law that an employee appointed on probation for six months continues as a probationer even after the period of six months if at the end of the period his services had either not been terminated or he is confirmed. It appears clear to us that without anything more an appointment on probation for six months gives the employer no right to terminate the service of an employee before six months had expired - except on the ground of misconduct or other sufficient reasons in which case even the services of a permanent employee could be terminated. At the end of the six months period the employer can either confirm him or terminate his services, because his service is found unsatisfactory. If no action is taken by the employer either by way of confirmation or by way of termination, the employee continues to be in service as a probationer.. With respect, we agree.. [Emphasis added] 40. Additionally in V Subramaniam & Ors v Craigielea [1982] 1 MLJ 317, the Federal Court held as follows: On the first subsidiary issue the Industrial Court was of the opinion that a probationer who at the end of his probationary period has not been confirmed or told to go must be regarded as having been admitted into permanent service, following its own earlier decision in Award 4 of 1970 (presided over by the late Mr. MacIntyre). In our judgment this was erroneous, for as was stated by the Indian Supreme Court at page 807 in Express Newspapers (P) Ltd v Labour Court AIR 1964 SC 806: "There can, in our opinion, be no doubt about the position in law that an employee appointed on probation for six months continues as a probationer even after the period of six months if at the end of the period his services had neither been terminated or confirmed.". 17 [Emphasis added]

41. In respect of a related matter of whether an employee on probation has right to security of tenure in employment, in the case of Rajendra Rao v CIMB AVIVA Assurance Berhad [Award No. 743 of 2016], the learned Chairman of the Industrial Court stated: In the case of Equatorial Timber Moulding v. Michael Crosskey [1986] 1 ILR 1666, the learned Chairman describes the legal character of probationary employment and the respective rights and obligations of the employee and employer. The learned Chairman stated that: "Being a probationer, he has no substantive right to the post. He holds no lien on the post. He is on trial to prove his fitness for the post for which he offers his service. His character, suitability and capacity as an employee is to be tested during the probationary period and his employment on probation comes to an end if during or at the end of the probationary period he is found to be unsuitable and his employer can terminate his probation by virtue or otherwise as provided in the terms of the appointment... Also there is an abundance of authorities to support the view that an employer has a contractual right to terminate the services of a probationer without notice and without assigning any reasons whatsoever. And no enquiry need to be held for such purpose, for termination of service of the probationer during the probationary period is not punishment or dismissal but simply of termination. However, when the validity of such a termination is challenged, the court must be satisfied that such termination was a bona fide exercise of the power conferred by the contract. And when there is suspicion of unfair labour practice, then the court will not hesitate to interfere with the termination and the employee should be afforded proper relief.. [Emphasis added] 42. Now having taken a measure of the law, this Court turns to the evidence that has been tendered in this case. 18

43. The Claimant in his submissions averred that he was a permanent employee in view of the fact that the Bank had written at the request of the Claimant a letter of confirmation dated 21.04.2011 to Bank Islam Malaysia Berhad that allegedly stated that the Claimant was a permanent employee. COW-1 affirmed that the said letter merely confirmed that the Claimant was employed by the Bank as a permanent employee as compared to a contract employee. It is not a letter issued to the Claimant confirming that he has satisfactorily completed his probationary service and is confirmed in his position in the Bank. 44. Further the Claimant alleged that since he was paid his salaries on the 22 nd day of each month, similar to permanent employees, he was deemed to be a permanent employee and no longer a probationer. The Bank affirmed that probationer employees at managerial grade and above have their payroll cycles aligned with confirmed employees and were paid their salaries on the 22 nd day of each month. 45. It is trite law that a probationer cannot assume confirmation in the absence of an express confirmation from his employer. In the Claimant s offer of employment, it was expressly stipulated that upon satisfactory completion of his probationary period his service will be confirmed in writing. The Claimant in evidence confirmed that he did not receive any letter from the Bank confirming him in his position in the Bank. Thus the Claimant continues to be on probation until he is expressly confirmed, and if no action is taken by the employer either by way of confirmation or by way of termination, he is assumed to continue in service as a probationer. 19

46. The Court of Appeal decided in the case in Khaliah Abbas v. Pesaka Capital Corporation Sdn Bhd [1997] 3 CLJ 827 that an employee on probation enjoys the same rights as a permanent or confirmed employee and his services cannot be terminated without just cause or excuse. His Lordship Shaik Daud Ismail JCA at page 831 expressed: "It is our view that an employee on probation enjoys the same right as a permanent or confirmed employee and his or her services cannot be terminated without just cause or excuse. The requirement of bona fide is essential in the dismissal of an employee on probation but if the dismissal or termination is found to be a colourable exercise of the power to dismiss or as a result of discrimination or unfair labour practice, the Industrial Court has the jurisdiction to interfere and to set aside such dismissal.. [Emphasis added] Appraisal of Claimant s performance during probationary period of 6 months and extended probation of 3 months. 47. The Bank contended that the Claimant s performance during his probationary period of 6 months and extended probation of 3 months was found to be unsatisfactory. Evidence was put forth that there were 2 performance appraisals done for the Claimant, namely the first performance appraisal for 10.03.2009 to 10.09.2009 [COB-2 p. 8-14] being 6 months after the Claimant commenced his employment in the Bank; and the second performance appraisal for period 10.03.2009 to 31.12.2009 [COB-2 p. 15-22] which incorporated the further period of 3 20

months of extended probation. COW-2 in evidence clarified the reasons for the two appraisals as follows: Q: Explain why 2 appraisals done? A: For 6 months probation, I will do a verbal appraisal with staff to inform them if they will be confirmed. p.8 14 verbal appraisal, I ticked to show appraisal given to Claimant. p.8 14 to convey to employee he is not confirmed. Subsequent to p.8 14, I am putting him under supervision of Senior Manager (Keith Joseph) to understudy his performance. p.15 22, we did another round of appraisal from 10/3/2009 until 31/12/2009. Purpose for extension of Claimant s probation and after 3 months of extended probation we are not confirming him. It was done in Mac 2010.. 48. Evidence was produced by the Bank to show that the Claimant was notified during the appraisal that his confirmation was to be hold due to his unsatisfactory performance. This fact was acknowledged by the Claimant as evidenced at pages 14 and 22 of COB-2 where he had affirmed as follows: I have discussed and agreed with my Appraiser on the Overall Score and comments above.. 49. In evidence the Claimant affirmed that when he signed the first performance appraisal form on 21.10.2009 he was aware that his performance was unsatisfactory and he needed to improve on delivering quality outputs on time. This was acknowledged by the Claimant based on his own comments at COB-2 p. 10, namely Time to understand the culture and organization structure and trying to adapt with the 21

environment. A lot of things need to be done in order to improve on the competencies and efficiencies. In the light of this COW-2 recommended that the Claimant s confirmation be on hold and the Claimant acknowledged that he was aware of this fact. 50. However the Claimant in evidence alleged that when he acknowledged the second performance appraisal [COB-2 p. 15-22], pages 20-22 of COB-2 was not filled including the Remarks column that was to be filled by COW-2 as his Assessor. The Claimant in evidence stated that he was not aware of the appraisal done as well as COW-2 s comments. However he agreed with the Bank s learned counsel that he had never pleaded this in his pleadings nor stated it in his witness statement CLWS-1. He also never provided any documentary evidence that he had at the material time raised this as an issue to the Human Resources Department. It is without doubt that the Court is mindful that it is trite law that a party is bound by its pleadings as enunciated in R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 CLY 147 and more recently in Ranjit Kaur a/p S. Gopal Singh v.hotel Excelsior (M) Sdn. Bhd. [2010] 8 CLJ 629. Furthermore the issue of the Claimant being unaware of the appraisal is a material contradiction from the documents filed before this Court. In the Federal Court case of Tinduk Besar Estate Sdn. Bhd. v. Tinjar Co [1979] 2 MLJ 229 it was held at p.44 that judicial reception of evidence requires that oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. It is said that it is safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from there than to believe his subsequent recollection or version of it particularly if he is a 22

witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. His Lordship Chang Min Tatt FJ (as his Lordship then was) held as follows:- Nevertheless the learned trial Judge expressed himself to be completely satisfied with the veracity of the respondent's witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent's oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity.. [Emphasis added] 51. Upon evaluating the oral evidence in light of the contemporaneous documents before this Court, the Court is satisfied that the Claimant s evidence before this Court conflicted with the contemporaneous evidence and merely amounted to an afterthought that bordered on bare assertions. The Court opines that reliance on the oral evidence tendered in Court during the hearing should in the circumstances be minimal as there has been ample time to reminisce upon the facts and come up with evidence that are mere afterthoughts. Further if what the Claimant alleged was true (that he was not informed of the outcome of his second performance appraisal) he should have taken the initiative to check with the Human Resources Department on this matter. COW-2 on the other 23

hand in evidence affirmed that the Claimant was informed of his unsatisfactory performance and thus COW-2 recommended that his confirmation be on hold as stated in the second performance appraisal form. Claimant s period of employment from 2010 to 10.02.2012 52. The Claimant alleged that he was put in cold storage and subsequently all his job functions were taken over by Ms. Denise Phang. COW-2 in evidence affirmed that Ms. Denise Phang was hired to the role of an Executive. It would not be practical to expect her to perform the tasks of the Claimant who was a Manager. In fact Ms. Denise Phang was reporting to another Manager under Risk Methodology who was tasked with the Operational Risk Management System development project. During that period she was required to report directly to COW-2 for her job assignments. 53. The Claimant further alleged that all his job functions were passed to Mr. Tan Kar Hui upon his rejoining the Bank in 2011 as a Manager. Mr. Tan Kar Hui was an Executive when he resigned in June 2009. COW-2 in evidence stated that Mr. Tan Kar Hui was not given the same portfolio as the Claimant. Further based on evidence tendered before this Court, Mr. Tan Kar Hui only took over the Claimant s task of Contract Management Policy. 54. The Claimant further alleged that he was not called to attend any meetings. The Bank submitted evidence that the Claimant was in fact 24

called to attend meetings. From the evidence during the period of August 2010 till May 2011, the Claimant was present in all meetings, except on 2 occasions when the Claimant was on medical leave. Further the Claimant had pleaded that numerous assignments were given to him and he completed them. During cross-examination he confirmed that these tasks were done in 2011. Thus his allegation that he was put into cold storage is baseless and a bare assertion. 55. The Claimant was also looking at opportunities to work in other departments within the Bank. In late 2010 he was exploring with the opportunity to work in the Legal Department but this did not materialise. Evidence was also adduced during the hearing to show that in June 2011, the Claimant was assigned by COW-2 to liaise with the Senior Manager, Operational Risk to explore the Risk Identification and Assessment Unit portfolio manager s position. The Claimant was given an opportunity to complete an assignment in order to assess his suitability. However the Senior Manager had communicated to the Claimant vide e-mail on the inability of the Claimant to deliver the assignment on time and with sufficient depth and as such the Claimant continued to remain on probation. 56. It is the unchallenged evidence of COW-2 that the Claimant was placed on Performance Improvement Plan process after his extended probationary period. Further the Bank submitted that there is no basis for the Claimant to contend that the Bank was obliged to send him for training and courses since he was not a freshie necessitating the Bank to train him. The Claimant was recruited for a specific managerial job with a high salary because he was supposed to have the relevant 25

experience and knowledge in respect of the said position. From evidence it cannot be denied that several counselling sessions were held with the Claimant and he was provided on the job training as practised in the Bank. The fact remains that as a probationer the Claimant s ability to perform the job for which he was appointed needs to be evaluated, wherein he needs to exhibit his knowledge and experience in respect of the said position. 57. The Claimant also alleged that his internet access was cut off by the Bank. From evidence there was a short period at the end of 2011 when the Claimant s internet access was disabled, but that was subsequently rectified by the Bank in early 2012. Evidence was tendered that it was more of a technical problem rather than anything as sinister as purportedly suggested by the Claimant. 58. The Claimant continued to remain on extended probation without raising any documented objection or protest until he was informed vide letter dated 10.02.2012 that he was placed on a final extended probationary period of three months effective 10.02.2012. He alleged that he raised verbal objections but then again this was never pleaded in his pleadings. The fact that the Claimant had not raised any objection or protest over the fact that he continued to remain on probation beyond the initial probationary period would be evidence to support the Bank s contention that the Claimant s probationary period was extended to allow the Claimant to show adequate improvement in his work. In fact the Claimant in evidence stated that during 2009 until 2011, he had met COW-2 and Miss Iza Rahayu from the Human Resources Department to discuss about the status of his confirmation in employment, and COW-2 26

verbally told him to improve otherwise there would be no confirmation. The Claimant was aware that during this period he was not confirmed in employment. Letter of Final Extended Probationary Period of three months effective 10.02.2012 59. On 10.02.2012, the Bank issued a letter to the Claimant informing him of the final extension of his probationary period for a duration of 3 months effective 10.02.2012. In its letter, the Bank explained to the Claimant that he had failed to demonstrate the skills and competencies required in order to be confirmed in employment. The final extension of the Claimant s probationary period was to give him a final opportunity to improve upon and achieve the required standard of performance in order to be confirmed in employment. Subsequently COW-2 conducted a counselling session with the Claimant on 10.02.2012 wherein improvements in his work was anticipated. In fact COW-2 expected the Claimant to improve and start producing outputs after he received the Letter of Final Extended Probationary Period and attended the subsequent counselling session that was conducted. 60. The Claimant was advised in no uncertain terms that in the event he failed to achieve the required standard of performance his probationary services would be terminated. The Claimant did not tender any evidence that he had objected to the said final extension of his probationary period nor the reasons put forth by the Bank for the said extension. 27

61. On the issue of poor performance in the case of Ireka Construction Berhad v. Chantiravathan Subramaniam James [1995] 2 ILR 11 at p. 16, the Industrial Court stated as follows: "The only issue for this Court to determine now is whether the Company, on a balance of probabilities has established the poor performance of the Claimant. As far as unsatisfactory performance is concerned the Industrial Court has laid down that in order to justify the dismissal of the Claimant on this ground, the Company has to establish: (i) That the Claimant was warned about his poor performance; (ii) that the Claimant was accorded sufficient opportunity to improve; and (iii) that not withstanding the above, the Claimant failed to sufficiently improve his performance.". 62. Further in the case of IE Project Sdn Bhd v. Tan Lee Seng [1987] 1 ILR 165, the Industrial Court stated as follows: "An employer should be very slow to dismiss upon the ground that the employee is found to be unsatisfactory in his performance or incapable of performing the work which he is employed to do without first just telling the employee of the respects in which he is failing to do his job adequately, warning him of the possibility or likelihood of dismissal on this ground and giving him an opportunity of improving his performance. It is for the employer to find out from the employee why he is performing unsatisfactorily to warn him that if he persists in doing so he may have to go.". 63. In the said Letter of Final Extended Probationary Period the Claimant was assigned specific jobs to be completed, namely: 28

Provide weekly updates on new Acts issued by Parliament and Guidelines issued by Regulators such as Bank Negara Malaysia, Securities Commission, and Bursa Malaysia. Analyse these Acts/Guidelines to identify business areas and activities of the banking group that may be impacted by such guidelines, advising on the implications to business operations, and proposing relevant policy changes and appropriate controls to be adopted. Where the issuance of new internal policies or amendments of existing policies are required, draft the concept paper for Management Approval that includes key items such as an outline of the objectives, required controls, and roles and responsibilities of stakeholders defined. As an immediate task, perform analysis on implications and follow through on actions required for two Acts, namely the Competition Act and Personal Data Protection Act. 64. In regards the immediate assignment of analysis of the implication of 2 gazetted Acts of Parliament, namely the Personal Data Protection Act 2010 and the Competition Act 2010, the Claimant was instructed to submit a draft plan on the given assignment for first review by COW-2 on 22.02.2012. However he only submitted it to COW-2 on 24.02.2012 without any explanation or apology for the delay. During the first review session the Claimant had with COW-2 and COW-3 on 24.02.2012, the Claimant was told that the review done by him was of insufficient scope 29

and depth, that is, the analysis was not done based on the impact of the implementation of these Acts to the Line of Businesses, that would have lead to an identification of which business processes and products will be impacted and any gaps in policy that may need to be addressed. The main body of the text from both analysis appear to have been taken from another author without proper acknowledgement, and thus elements of plagiarism were found in the analysis. The findings during the first review session was documented by COW-2 vide e-mail dated 01.03.2012 [COB-1 p. 21-22] wherein the Claimant was informed in detail that the feedback was not encouraging as he had failed to submit an analysis that met the required standards and expectations. COW-2 further extended the dateline for submission of analysis of both Acts of Parliament to 02.03.2012 in the interest of giving the Claimant a full opportunity to submit an analysis of sufficient substance for further development. 65. The Claimant also admitted during the hearing that there was no evidence to support his contention that during the first review session he had with COW-2 and COW-3 on 24.02.2012, he had raised issues regarding the extension of his probationary period. Furthermore the Claimant had never pleaded such contention. 66. The Claimant went on medical leave from 27.02.2012 before COW-2 could conduct the second review of his assignment. Prior to his commencement of medical leave, the Claimant did not inform COW-2 of his intention to go for knee surgery and how this decision would impact the department s operations and his work assignment. The Claimant informed COW-2 about his medical leave beyond the week of 30

28.02.2012 after COW-2 sent e-mails to him on 08.03.2012 and 09.03.2012 reprimanding him for not providing notification to him regarding his medical status and when he will be able to resume work. Consequently COW-2 never received the analysis of the 2 gazetted Acts of Parliament from the Claimant that was due on 02.03.2012 as he was on medical leave until 06.06.2012. Letter of Frustration of Contract/Unsatisfactory Probationary Service dated 23.05.2012 67. The Bank on 23.05.2012 issued a letter to the Claimant titled Frustration of Contract/Unsatisfactory Probationary Service highlighting the issues the Bank was facing with the Claimant. The Bank further instructed the Claimant to report back to work on 07.06.2012 failing which his services would be terminated for frustration of contract due to unsatisfactory probationary service. The Court agrees with the Bank s contention that this letter was not a letter of termination as the Bank merely put the Claimant on notice that if he failed to report for work after his medical leave ended on 06.06.2012, then his services would be terminated. 68. Subsequent to the Claimant s return to work on 07.06.2012, COW- 2 sent an e-mail dated 07.06.2012 [COB-1 p. 24] reminding the Claimant that his assignment prior to his medical leave was still due. COW-2 extended the dateline to 11.06.2012 to enable the Claimant to complete his assignment pursuant to the relevant points/information as raised by COW-2 in the first review session on 24.02.2012. However, the Claimant 31

failed to comply with COW-2 s instructions and vide e-mail dated 11.06.2012 (10.35am) [COB-1 p. 24] he informed COW-2 that there had been no progress on the assignment since he returned to work on 07.06.2012. He merely stated that the analysis should be provided by the Lines of Businesses in order to identify the business processes and products impacted by these 2 Acts of Parliament and any gaps in current policy that may need to be addressed. Subsequently COW-2 vide e-mail on 11.06.2012 (11.14am) [COB-1 p. 23-24] instructed the Claimant to submit a progress update on the assignment to him on 11.06.2012 at 5.45pm. Instead the Claimant left the office at 5.47pm on 11.06.2012 without submitting the progress update of the assignment to COW-2. On 12.06.2012 (11.10am), COW-2 called the Claimant to personally provide a verbal explanation on his failure to comply with COW-2 s instructions to which the Claimant exhibited elements of insubordination and inaction. COW-3 was present during this meeting. COW-2 subsequently recorded the events that transpired during the meeting on 12.06.2012 vide e-mail dated 12.06.2012 (11.10am) [COB-1 p.23] and put the Claimant on notice that his actions were unacceptable. Show Cause Letter dated 14.06.2012 69. Subsequently, the Bank issued a Show Cause Letter on 14.06.2012 wherein the Bank, inter alia, leveled 5 (five) allegations of misconduct against the Claimant and requested the Claimant to show cause in writing in response to the allegations. The allegations leveled against the Claimant are as follows:- 32

(a) That you had refused to comply with COW-2 s instructions to resume and work on the projects assigned to you earlier on 10.02.2012 in order to meet the requirements and expectations communicated to you during the review session held on 24.02.2012 (and vide e-mail dated 01.03.2012) despite numerous reminders and extension of new deadline to 11.06.2012. Thus, your conduct is tantamount to refusal to obey a reasonable order to carry out the tasks assigned to you and/or insubordination. (b) That you had shown an indifferent attitude and/or total disrespect to COW-2 by out-rightly informing COW-2 that you are reluctant to do the necessary and even said that you would decide whether to proceed or not with the work assignments, thereby totally disregarding his instructions to you. Furthermore, you also informed COW-2 that you do not wish to provide any response whatsoever towards his earlier instructions and discussions on work deliverables despite his attempt to provide further guidance, including vide e-mail dated 01.03.2012. In the process, you had also challenged the Management to terminate your services if the Bank is not happy with you. Thus your conduct is tantamount to refusal to obey a reasonable order to carry out the tasks assigned to you and/or insubordination and/or subversive of discipline. (c) With intent to frustrate the Bank s attempt on the delivery of the Bank s letter dated 23.05.2012 to you, for no apparent reason you had refused acceptance and directed the courier company to return the consignment to the sender. 33

(d) That you had taken an extended lunch hour break on 12.06.2012 beyond the allowed one hour lunch break without prior permission and/or without informing COW-2 of your whereabouts. It was observed that you had left the office at 11.45am and only to return at 2.40pm which is in breach of COW-2 s instructions to strictly comply with the one hour lunch break. (e) That you had sent out e-mails from your Bank e-mail address to a private e-mail address with attachments such as internal documents i.e. policy, meeting minutes, strategy paper etc. which is in clear violation of the Bank s Information Classification and Handling policy. 70. The Claimant was suspended from employment effective from 15.06.2012. The Claimant replied to the Bank s Show Cause Letter vide letter dated 19.06.2012. 71. On the first allegation the Claimant in his defence stated that he could not do the analysis for identification of implications of these Acts to the respective Lines of Businesses because he needed to liaise with the Lines of Businesses for which he required the clearance and letter of approval from COW-2 asking for support from the Lines of Businesses. COW-2 in evidence stated that Lines of Businesses refers to the Business and Functional Operations Units in the Bank that comprise 8 lines of business, amongst which are Retail Banking, Payment and Settlement, Brokering Business, Trustee and Custodian, and Agency Business. COW-2 confirmed that the Claimant does not need his letter 34