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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.

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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)

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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]

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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]

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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.

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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 non-
performer. [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:

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“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.

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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.”

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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

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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

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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

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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.

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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.

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38. The Claimant did not called the said Ms. Yan Leong since the said
Ms. Yan Leong too had left the Company. However during cross-
examination, 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]

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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.

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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

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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.”

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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

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