INDUSTRIAL COURT OF MALAYSIA CASE NO: 15/4-388/14 BETWEEN YASMIN BINTI HARON AND EXTOL CORPORATION (M) SDN. BHD. AWARD NO: 342 OF 2017 Before : Y.A. PUAN REIHANA BTE ABD.RAZAK CHAIRMAN (SITTING ALONE) Venue : INDUSTRIAL COURT, KUALA LUMPUR Date of Reference: 26.05.2014 Dates of Mention : 09.07.2014, 23.07.2014, 14.08.2014, 11.09.2014, 03.11.2014, 01.12.2014, 16.12.2014, 25.06.2015, 22.07.2015, 11.08.2015, 01.12.2015, 11.01.2016. Dates of Hearing : 20.07.2016, 21.07.2016, 25.07.2016. Representation : Mr. Anthony Gomez Messrs Gomez & Associates Counsel for the Claimant. Mr. Ringo Low and Ms. CC Choy Messrs Ringo Low & Associates Counsel for the Company. 1
REFERENCE: 1. The parties to the dispute are YASMIN BINTI HARON ( the Claimant ) and EXTOL CORPORATION (M) SDN. BHD.( the Company ). This case is a reference under Section 20(3) of the Industrial Relations Act 1967, arising from the dismissal of YASMIN BINTI HARON ( the Claimant ) by EXTOL CORPORATION (M) SDN. BHD. ( the Company ). AWARD 2. The Ministerial reference in this case required the Court to hear and determine the Claimant s complaint of dismissal by the Company on 01.08.2013. BRIEF FACTS 3. The Claimant commenced employment with the Company on 01.11.2012 as Assistant Business Manager in the Business Development Unit of the Company with a salary of RM RM5,000.00. per month. The Claimant was put on probation for six (6) months commencing 01.11.2012 vide the Company's offer of letter of employment dated 10.10.2012. [COB-1 pages 1 to 5 - Letter of Appointment) 2
4. The Claimant s probation was extended for another 3 months with effect from 01.05.2013 to 31.07.2013 vide letter dated 29.04.2013 [COB-1 page 17 - First Probation Extension]. 5. Vide letter dated 24.07.2013 entitled Termination Letter, the Company wrote to the Claimant informing her that her employment with the Company is terminated with effect from 01.08.2013. [COB-1 page 39 - Termination Letter] 6. The Claimant s contended that the termination of her service by the Company was without just cause or excuse and was with mala fide motives contrary to the principles of equity, good conscience and natural justice. 7. The Company on the other hand contended that the Claimant was not confirmed due to her unsatisfactory performance and also that the Claimant is not suitable for the position with the Company. COMPANY S CASE 8. The Company's case is as stated in its Statement-in-Reply dated 28.08.2014. The Claimant commenced employment with the Company on 01.11.2012 as Assistant Business Manager in the Business Development Unit, with a monthly salary of RM 4,400.00 and reporting to the Head of Department of the Business Development of the Company. The Claimant s scopes of work is been described in the Letter of Appointment dated 10.10.2012. [COB-1 page 5 Job Description] 3
9. The Claimant s probation period of 6 months commenced on 01.11.2012. Vide letter dated 29.04.2013, the Company then extended the period of probation of the Claimant for another 3 months from 01.05.2013 to 31.07.2013 on the grounds that the Claimant did not achieved her sales performance especially to explore and secure new business opportunities and that the Claimant also did not demonstrate the ability to meet the job expectations. [COB-1 page 17 - First Probation Extension] 10. Pursuant to the extension of the probation period, the Company conducted a Counseling and Performance Evaluation on the Claimant on 14.06.2013 and on 28.06.2013 where the Claimant was cautioned about her unsatisfactory performance and failure to meet sales targets. The Claimant was also advised to improve her job performance which will be reviewed in July 2013. 11. On 23.07.2013, the Company conducted another Performance Evaluation on the Claimant and also was considered unsatisfactory with no improvement in her job performance at all. 12. By letter dated 24.07.2013, the Company terminated the contract of employment of the Claimant as a probationary employee with effect from 01.08.2013. [COB-1 page 39 - Termination Letter] 4
CLAIMANT S CASE 13. The Claimant s case is as stated in her Statement of Case dated 28.08.2014. The Claimant avers that as Assistant Business Manager in the Business Development Unit, her primary job responsibility were to assist BDM in Account/Client Management, to retain existing client, explore new business opportunity and to help out on preparing proposals tenders and quotations. 14. The Claimant avers that she was never told of any sales target to be achieved upon her appointment as Assistant Business Manager neither did anyone raised the issue of any sales to be achieved during her probationary period. 15. The Claimant avers that as she was about to complete her probationary service, the Company, without any prior notice, extended her probation on 29.04.2013 for another 3 months with effect from 01.05.2013 on the grounds that she did not achieved her sales on exploring and securing new business opportunities and also that she have not demonstrated her ability as the Assistant Business Manager. 16. The Claimant contended that her Head of Department carried out Performance Review and Development and gave a positive report because her overall performance evaluation was more than satisfactory. 5
17. The Claimant further avers that on 13.05.2013, the Company maliciously issued a show cause letter to the Claimant accusing the Claimant of having gone for lunch early and returned late to office on 09.05.2013. [CLB-1 page 13 - show cause letter] 18. The Claimant also avers that despite of a positive satisfactory report on her overall performance given by her superior, the company issued a warning letter dated 28.06.2013 to the Claimant alleging her being a nonperformer. [COB-1 page 28 - warning letter] 19. The Claimant further avers that the Company went on issuing on her another warning letter dated 17.07.2013 alleging her for being late for the company training sessions. [COB-1 page 38 - Warning letter - Late For Training Without Prior Intimation] 20. The Claimant contents that the Company was maliciously and extremely prejudice in dismissing her vide letter dated 24.07.2013 and therefore her summary dismissal was unjust and unlawful. THE LAW AND BURDEN OF PROOF 21. In the often cited case of WONG CHEE HONG V. CATHAY ORGANISATION (M) SDN. BHD [1988] 1 CLJ (Rep) 298 at page 302, the duty of the Industrial Court was stated by his Lordship Salleh Abbas LP as: 6
When the Industrial Court is dealing with a reference under section 20, the first thing that the Court will have to do is to ask itself a question whether there was a dismissal, and if so, whether it was with or without just cause or excuse. 22. 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 the 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. 23. The Company needs only to prove misconduct justifying the dismissal or termination on a balance of probabilities (see TELEKOM MALAYSIA KAWASAN UTARA V KRISHNAN KUTTY A/L SANGUNI NAIR & ANOR [2002] 3 CLJ 314. 24. Consequently, as the dismissal of the Claimant by the Company is not disputed, this Court will next proceed to consider the propriety of the Claimant s termination, that is, it was for just cause or excuse. 7
25. Since the Claimant is a probationer, it must be stated at the outset that it is an entrenched rule of industrial jurisprudence that a probationer has no substantive right of tenure to hold the position nor does he hold a lien upon the post beyond the agreed contractual probationary period. In the case of EQUATORIAL TIMBER MOULDING SDN. BHD. KUCHING V. JOHN MICHAEL CROSSKEY, KUCHING [1986] 2 ILR 1666 (Award No. 387 of 1986) where the Industrial Court stated the principles as follows: Such an employee has no substantive right to hold 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 services. 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 probation period he is found to be unsuitable and his employer can terminate his probation by virtue or otherwise as provided in the terms of appointment. There are also 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 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 where there is a suspicion of unfair labour practice, then the Court will not hesitate to interfere with the termination and the employee should be afforded proper relief. 8
26. In the Court of Appeal's case of KHALIAH ABBAS V. PESAKA CAPITAL CORPORATION SDN BHD [1997] 3 CLJ 827, it was stated 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 said as follows: 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. 27. In the case of DORSETT REGENCY HOTEL (M) SDN. BHD. V. ANDREW JAYADASS JAMES AMBROSE [2003] 2 ILR 740 at page 751 the learned Chairman analysed the meaning of the above passage of the Court of Appeal in relation to a reference under section 20(3) of the Act and the status of a probationer as follows: However Khaliah s case does not expound the substantive law pertaining to a probationer but relates to the specific question that if a probationer is to be terminated, it should be within the general purview of s. 20(3) of the Act in that it should not be without just cause and excuse. Nevertheless, this court must be mindful that there is an intrinsic and material distinction between employees under probation and confirmed permanent employees.. In the case of VIKAY TECHNOLOGY SDN. BHD. V. ANG 9
ENG SEW [1993] 1 ILR 90 at p. 95 the learned chairman referred to a passage in Malhotra's book "The Law of Industrial Disputes" (11th Edn.[sic] at p. 224) which reads as follows: "It is well settled law that at the end of the probationary period, it is open to the employer to continue the employee in his service or not in his discretion, otherwise the distinction between probationary employment and permanent employment will be wiped out. Even if on the expiry of the probationary period the work of the employee is satisfactory, it does not confer any right on [him] to be confirmed." [Emphasis added] At the High Court in HARTALEGA SDN. BHD. V SHAMSUL HISHAM MOHD AINI [2004] 3 CLJ 257 Wan Afrah JC (as Her Ladyship then was) approved the interpretation of KHALIAH BTE ABBAS V PESAKA CAPITAL CORPORATION SDN. BHD. (supra) by the learned Chairman in DORSETT REGENCY HOTEL (M) SDN. BHD. V ANDREW JAYADAS JAMES AMBROSE (supra). The Court in HARTALEGA'S case further held that: There should be a distinction between a probationer and a confirmed employee. Merely bringing the probationer within the ambit of s. 20 of the Act does not automatically imply that the probationer is elevated to the status of a confirmed employee. This was not the intention of the legislature in enacting s. 20(3) of the Act Both parties had agreed that it was conditional for a probationer to perform his functions to the satisfaction of his 10
employer. Failure to do so would render the probationer liable to be dismissed, save that such a decision must not be capricious or arbitrary.". 28. An employee on probation cannot expect to be accorded with the same status, rights or privileges as a permanent/confirmed employee. The correct test to be applied in relation to the decision of an employer to dismiss a probationary employee is that the decision must be bona fide and not one that is capricious or arbitrary. The bona fide test also equally applies for any extension of a probationary period if genuinely warranted by circumstances of the case. EVALUATION OF EVIDENCE AND FINDINGS OF COURT 29. The Claimant was appointed as an Assistant Business Manager and to be placed under a six (6) months probationary period with the terms as set out in the Letter of Appointment to which the Claimant had acknowledged and accepted. Being appointed as an Assistant Business Manager, it was not disputed by the Claimant that achieving sales target set by the Company was in the Claimant s job description as if was clearly set out in the Letter of Appointment and that the Claimant had accepted and aware about it. 30. The Court therefore finds that the Claimant s averment in her Statement Of Case that she was never told of any sales target to be achieved upon her appointment as Assistant Business Manager and that neither did anyone raised the issue of any sales to be achieved during her 11
probationary period is just a mere assertions of the Claimant trying to plead ignorance of what was expected from her by the Company in relation to the sales target that she have to achieve. 31. In the case of ROBERT JOHN REEVES V. MENTERI SUMBER MANUSIA MALAYSIA & ANOR [2000] 1 CLJ 180 AT PAGE 192;... it cannot be disputed that the applicant was holding a senior management position and he was expected to know the standard of job performance required of him. He therefore cannot plead or seek refuge in his purported ignorance of what was expected from him by the 2nd respondent. This is a trite principle of Employment Law in cases concerning poor performance of senior employees. 32. It is also to be noted that the Claimant agreed and confirmed during cross examination by counsel for the Company that her immediate superior one Ms. Yan Leong and the Claimant had had a meeting to discuss the content of the Performance Evaluation No.1 which included the Sales Target as stated in Part II Items 4 & 5 and Part III Items 4 & 5 of the Performance Evaluation No.1: Counsel: Do you agree what you have discussed regarding the Performance Evaluation with Yan Leong were all set out in page 10 to page 15 of COB1? Claimant: Yes. 12
33. The Performance Evaluation No.1 is the documentary evidence to show that the sales targets were expressly mentioned in her performance evaluation forms too. [COB-1 page 13] 34. Apart from just a mere assertions by the Claimant, there was no other evidence to support that the Claimant had no knowledge about the requirement to achieve sales targets in order to be confirmed on her job. 35. From the evidence adduced, the Claimant also did not at any point of time during her probation period objected nor seek any clarification from the Company or anyone about her sales targets when the Company extended her probationary period for another 3 months by giving one of the reason for the extension was that she did not achieved her sales targets set by the Company. 36. The Claimant also acknowledged the receipt of the Probation Extension Letter dated 16.05.2013 without any protest not even to her immediate superior one Ms Yan Leong whom she claimed had given her positive evaluation for her to be confirmed. [COB-1 page 17] 37. The Claimant could have called her immediate superior the said Ms. Yan Leong to confirm that she gave the Claimant positive evaluation for her confirmation on the post and support Claimant s allegation that Company was mala fide motivated for not confirming the Claimant. 13
38. The Claimant did not called the said Ms. Yan Leong since the said Ms. Yan Leong too had left the Company. However during crossexamination, the Claimant was asked if she is still in contact with Ms. Yan Leong, to which she answered, Yes, she is my immediate supervisor in the new Company, KPMG Management and Risk Consulting Sdn. Bhd, where I am working in now. 39. In the case of FAKIR ABDUL JALIL BIN PAKIR MOHAMED V. SHELL REFINERY CO. BHD. (Award of 20 of 1974) the Court states: The dictionary meaning of probation is given as the testing of conduct or character of a person and a probationer is one who is on trial or in a state to give proof of certain qualifications for a place or state. The idea of probation in all cases of services contracts is, therefore, a testing of the character and capabilities of the servant on the employer's side, and also a testing of the conditions of service on the employee's part. The period of probation in a service contract can, therefore, be taken as a communication by the employer that in case the employee proves himself, within the period of probation, to the satisfaction of the employer, that he (the probationer) is a fit and proper person to perform the duties for which he has offered his services, the probationer would be entitled to be confirmed or taken in on a permanent basis. The appointment of a person on probation is, therefore, tentative and dependent on the employer's satisfaction as to his suitability. [Emphasis Added] 14
40. In the present case, despite being given the opportunities to improve her performance and change her work attitude, evidence was shown in Court that the Claimant still failed to achieve the sales targets set by the Company and also failed to demonstrate her suitability of holding the position as expected by the Company. The Company was completely dissatisfied with the Claimant s work attitude and dismissed the Claimant 41. The Company being dissatisfied with the Claimant s work attitude the Company had to issue a warning letter dated 28.06.2013 to the Claimant requiring her to improve her work performance and to submit her daily sales activities to her superior Ms. Yan Leong effective 01.07.2013. [COB-1 page 28] 42. The Claimant was also during her probationary period issued with a show cause letter dated 13.05.2013 by the Company of having gone for lunch early and returned late to office on 09.05.2013. [CLB-1 page 43] 43. It was also evidence adduced in the court and was not disputed by the Claimant that while still in the extended period of probation, the Claimant was issued with a warning letter by the Company dated 28.06.2013 for not performing, and followed by a Disciplinary Letter via e- mail dated 17.07.2013 to the Claimant asking for an explanation for being late for the Company training sessions. 15
44. The Claimant contends that her dismissal was unfair and was not bona fide. The Claimant claimed that the Company when decided not to confirm her did so without justification and was tainted by mala fide intentions. The Claimant however did not adduce any evidence on the alleged mala fide actions of the Company for not confirming her and also any evidence to suggest that the Company was not fair when it conducted the assessment on her. 45. It was evident to the Court that the Company had taken all the necessary steps and had followed the process and procedures stipulated in assessing the Claimant during the probation period by conducting Performance Review and Development evaluation during her probationary period. 46. The Court is of the view that the Company could had terminated the Claimant s contract at the end of her 6 month probationary period but the Company did not do so. The Claimant had indeed been given a fair opportunity to prove herself and measure up to the Company's expectations, but she failed to avail herself of the opportunity. The probation period had been extended but the Claimant failed to show improvement of her performance up to the expectation of the Company. 47. Beside not being able to achieve the sales targets set by the Company, the Claimant also failed in demonstrating her suitability in relation to the job she was employed for by the Company. The issuance of 16
show cause and warning letters against her during her extended probation period reflected her lack of discipline and fitness for the post. 48. The Claimant does not possessed the right skill, competence, attitude and suitability which will entitle her to transcend from being an employee on probation to that of a confirmed permanent employee. 49. The Court is satisfied that the termination by the Company was a bone fide exercise of the power conferred by the contract. Therefore the Company is entitled to remove the Claimant since the Claimant failed to measure up to the Company s expectation. 50. In the case of SITT TATT BHD V. ONG CHEE MENG [2004] 2 ILR 388 at page 393 when the learned Chairman stated: In my view the company was fully entitled to terminate the claimant s service if upon their evaluation, the claimant was found to have been unable to perform his job functions satisfactorily. How he is to be assessed and the yardstick to be used to gauge his performance is best left to the company s prerogative and judgment so long as it is not tainted by mala fide intentions. It could well be based on performance per se or upon a combination of other variables and values such as suitability, aptitude, conduct, behaviour, mannerism and so forth. Its categories are never exhaustive. After all it is well settled that the company is entitled to organize its business in the manner it considers best. It is the duty of the claimant to measure up to the company s expectation. All the more so as the claimant was still under probation. 17
51. Premised upon the findings of this Court and having regards to the evidence in its totality, the Court is of the view that the Company has proved on a balance of probability that the Claimants' termination was justified and it was carried out in good faith and in accordance to fair labour practice. 52. The also Court finds that the Company has proved on a balance of probabilities that the Claimant had not been able to perform and she was also not suitable to be employed as a permanent employee of the Company. 53. Based on equity and good conscience and the substantial merit of the case without regard to technicality and legal form legal form under section 30 (5) of the Act, the Court finds that the Claimants' termination was carried out with just cause and excuse. The Claimant s claim is hereby dismissed. HANDED DOWN AND DATED THIS 28 DAY OF FEBRUARY 2017 (REIHANA BTE ABD.RAZAK) CHAIRMAN INDUSTRIAL COURT, MALAYSIA KUALA LUMPUR 18