IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO: 9/4-949/13

BETWEEN

SITI AISHAH BINTI MOHAMAD

AND

PETRONAS CARIGALI SDN. BHD.

AWARD NO: 799 OF 2016

Before : Y.A.DATO' HAJI SULAIMAN BIN ISMAIL

CHAIRMAN

Award Handed
Down by : Y.A. TUAN DOMNIC SELVAM GNANAPRAGASAM
CHAIRMAN

Venue : INDUSTRIAL COURT OF MALAYSIA,

PENANG BRANCH

Date of Reference : 1st OF APRIL 2013

Dates of Mention : 25th OF JUNE 2013, 22nd OFJULY 2013, 23rd OF AUGUST 2013,
27th OF SEPTEMBER 2013, 28th OF OCTOBER 2013,
18th OF NOVEMBER 2013; 23rd OF DECEMBER 2013
& 11th OF JANUARY 2013.

Date of Mediation : 19th OF NOVEMBER 2014

Dates of Hearing : 19th OF NOVEMBER 2014, 19th OF AUGUST 2015 &

15th OF MARCH 2016.

Date of Oral Clarification: 25th OF APRIL 2017

Representation : Madam Navinder Kaur Jessy and assisted by Mr. Terry

Lim Sing Ghee, learned counsels from Jessy & Associates
for the Claimant

Mr. Vijayan Venugopal, learned counsel from Messrs

Shearn Delamore & Co for the Respondent

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 AWARD

REFERENCE:

This is a reference by the Honourable Minister of Human Resources

under Section 20(3) of the Industrial Relations Act 1967 (Act 177) on 1 st of April
2013 arising out of the dismissal of Siti Aishah binti Mohamad (“the Claimant”)
on the 22nd of December 2012 by Petronas Carigali Sdn. Bhd. (“Respondent”)

The hearing of this case commenced on 19 th of August 2015 and

was duly completed on the 15th of March 2016. The Claimant's solicitors; Messrs
Jessy & Associates filed their Written Submissions on the 26 th of April 2016 and
their Submissions In Reply on the 20th of June 2016 respectively. The
Respondents' Solicitors, Messrs Shearn Delamore & Co, filed their Written
Submissions on the 30th of May 2016. The hearing of the matter was heard
before Dato' Hj Sulaiman bin Ismail. This matter has been pending since then as
the tenure of Dato’ Hj. Sulaiman Bin Ismail had ended on the 31st of August 2016.
The current Chairman has been directed by the President to hand down this
Award in the interest of justice. Both parties had on the 11 th of January 2017
consented for the Award to be handed down by the current Chairman. The
solicitors for the parties made further oral clarifications before the current
Chairman on the 25th of April 2017. Notwithstanding the consent of the parties
herein, the Court also relies on the authority of Bax Global (Malaysia) Sdn.
Bhd. (now known as Schenker Logistic [Malaysia] Sdn. Bhd.) v. Sukhdev
Singh s/o Pritam Singh and Anor, (R3-25-162-09) where reference was made,
inter alia to Section 23(6) of the Industrial Relations Act 1967. It was held in that
said case that in order to obviate grave hardship being caused, the case need
not be heard de novo, the award can be handed down by another Chairman and
the Award written by another Chairman in similar circumstances was upheld by
the Appeal Court. This award is therefore written in total reliance on the
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evidence, documents and facts contained in the notes and records of
proceedings as well as the written submissions and oral submissions made
available to the original court and before me. The Court shall now hand down this
award.

BRIEF FACTS:

The Claimant commenced employment with the Respondent as the

Manager (Corporate Communications) on the 18th of June 2012. The Claimant
was required to undergo a probation period of six (6) months. The Claimant was
terminated from her employment on the 22nd of December 2012 consequent to
her overall work performance not meeting the Respondent’s expectations.

At the time of dismissal the Claimant's monthly salary was

RM10,000.00 per month. The Claimant avers that she had carried out her
functions and responsibilities to the best of her ability. It is the Claimant’s position
that her appraisal prior to confirmation was satisfactory.

The Claimant contended that the Respondents’ action in summarily

terminating her services was mala fide and was in breach of Clause 7 of her
letter of appointment as well as going against the basic principles of natural
justice. She prays for her reinstatement to her former position without any loss in
service and back wages in respect of basic salary and all other benefits and or
privileges.

The Respondent on the contrary contends that it is the discretion of

the Respondent not to extend the probationary period in view of the Claimant's
unsatisfactory work performance. The Claimant's work performance throughout

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the 6 months tenure with the Respondent had proven that the Claimant was not
suitable to hold the position as a Manager. The Respondent had exercised its
discretion under Clause 7 of the letter of offer dated 22 nd of May 2012 by not
confirming her.

The Respondent further avers that the exercise was done in good
faith. It is the Respondents’ position that the non-confirmation of the Claimant
was justified in the circumstances of the matter and as such she is not entitled to
the relief as prayed for in paragraph 14 of the Statement of Case.

THE LAW:

It is trite law that where an employer gives reasons for terminating

the employment of his employee, it is incumbent upon the employer to justify the
reasons. If these reasons are not proved, then the inevitable conclusion must be
that the termination was without just cause or excuse. This principle of Industrial
Law is laid down by his Lordship. Mr. Justice Raja Azlan Shah, CJ (Malaya) in
the case of Goon Kwee Phoy v. J&P Coats (M) Bhd. (1981) 2 MLJ 129 at page
136 which reads as follows:

“Where representations are made and are referred to the Industrial

Court of enquiry, 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 enquire whether that excuse or reason has or
has not been made out. If it finds as a fact that it has not been proved, then
the inevitable conclusion must be that the termination or dismissal was
without just cause or excuse. The proper enquiry of the court is the reason
advanced by it and that Court or the High Court cannot go into another reason
not relied on by the employer or find one for it.”

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THE LAW ON PROBATIONERS

The law on probationers is well settled. A probationer has the same

right as a permanent employee as enunciated by Shaik Daud Ismail JCA in the
case of Khaliah Abas v. Pesaka Capital Corporation Sdn Bhd 3 CLJ 827
where it was held:

“An employee on probation enjoys the same rights 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 thus essential in his
dismissal. If the dismissal is found to be a colourable exercise of the power to
dismiss or a result of discrimination or unfair labour practice, the Industrial
Court has the jurisdiction to interfere and set aside such dismissal".

In FAKIR ABDUL JALIL BIN PAKIR MOHAMED V SHELL REFINERY CO.

BHD. (Award No. 20 of 1974) the Industrial Court had this to say:

“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 suitab ility.”

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 Every employer is entitled to have the best and most suitable employee in
its organization. This is to ensure the smooth running and optimum performance
of the organization. In Roslan Baba v. Puncak Niaga (M) Sdn Bhd [2013] 3
ILR 216 the Industrial Court held as follows:

"Suitability is not just based upon performance of the employee but also
on his conduct, behavior, aptitude and attitude in relation to the job he is
employed. The real test should therefore be whether the probationer
possesses the right skill, competence, temperament, aptitude, attitude, and
suitability which will entitle him to transcend from being an employee on
probation to that of a confirmed permanent employee. The best person to
judge the probationer on these requisites will surely be the employer”

Having said that, this is the very reason why a new employee is placed on
probation for a certain period of time to gauge his or her capability and
competency in a given post. New employees come in with myriad of
representations on their previous working track record. More often than not,
these representations can only be assessed during the probation period. Even a
professional qualification of the employee is not a guarantee of his or her ability
to perform a task efficiently and effectively. The higher the position in the
organization ladder, a higher degree of quality performance is expected.
However, if a probationer is found to be inefficient or incapable, he cannot have
the legitimate expectation to be confirmed in his position. Neither it is incumbent
upon the employer to retain such employee. However, before an employer
decides not to retain the probationer, the employee ought to know that their work
performance does not meet up with the employers’ expectations. It must also
reflect the industry’s expectation.

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 In i.e. Project Sdn. Bhd. v. Tan Lee Seng Award No. 56/87 the Learned
Chairman articulated:

“Dismissal for unsatisfactory work or incompetency should almost

invariably have been preceded by warnings. In the event of poor performance
being the reason for the dismissal one should always endeavour to show that
the work complained of was performed subsequent to warnings.”

and later he said :

“An employer should be very slow to dismiss on 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 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.”

However, the Industrial Court in Ginder Singh Transport Co Sdn Bhd v

Bijir Singh Juala Singh [1995] 1 ILR 516, was of the opinion at page 523 that it
was preferable that the employee to be given formal written warning letters to put
the employee on notice. It held as follows:

"A formal written letter of warning provides an employer with the

evidence to rebut his employee's claim that he had not been sufficiently made
aware of any deterioration in his work and of the prospect of the employer
terminating his services should he fail to improve upon his performance. It
does not, however, mean that an employer must in all cases issue such a
letter".

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 In the case of Vikay Technology Sdn. Bhd. v. Ang 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."

Evaluation And Findings:

The duty of the Industrial Court will be to enquire whether the

excuse or reasons for the termination has or has not been made out. The proper
enquiry of the Court is the reason advanced by the employer. As the termination
is not in dispute, the Court will inquire if the termination was with just cause or
excuse.

Therefore this Court is duty bound to make an enquiry where the

representation are made or are referred to the Industrial Court by the Honourable
Minister (Refer to the case Goon Kwee Phoy vs J&P Coats (M) Sdn. Bhd.
(1981) 2 LNS 129).

In this case the reason for the Claimant’s termination is poor

performance i.e. not meeting with the expectations of the employer. In
determining whether the employee’s performance is satisfactory, the Court will
rely on the subjective opinion of the employer so long as the employers’
dissatisfaction was genuine and bona fide.

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 In the case Samsuddin bin Mat Din vs Austral Enterprise (Award
47 of 1974) the Industrial Court held that

“Inefficiency which discloses a cause of negative conduct is a

sufficient ground for termination. Incompetency also is a ground for
dismissal…. It must remembered that the vast majority of the employees
make their employer the judges of their efficiency and so long as the
employer acts bona fide i.e if he is genuinely discontented with an employee
he is quite entitled to give notice of termination.”

In the case of Ali Dain Ltd vs Taylor (1978) 1 CR 445, Lord

Denning MR stated as follows:

“Whenever a man is dismissed for incapacity or incompetence it is

sufficient that the employer honestly believes on reasonable ground that the
man in incapable or incompetence. It is not necessary for the employer to
prove that he is in fact incapable or incompetence.”

In the case before this Court, the Claimant had averred that she had
carried out her functions and responsibilities to the best of her ability. Nowhere
has it been pleaded that her performance was to the satisfaction of the
Respondent. Carrying out one’s task to the best of one’s ability does not equal to
executing it to the satisfaction of the employer. The expectations and demands of
an employer are not necessarily the same of that of an employee; more so a
probationer. The Claimant being in a senior managerial position ought to know
the demands of her position. In the instant case, Puan Farizun binti Abdul Karim
(COW1); the Remuneration & Employee Relations Manager at the material time
and Puan Lita binti Osman (COW2); the General Manager testified that the
Claimant had been given ample notices and warning about her poor
performance.
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 During the probationary period, the Claimant reported to (COW2) on
matters pertaining to her duties and responsibilities as a Corporate
Communications Manager. Her duties are reflected as pages 3 – 4 of COB1.

COW2 testified that the Claimant was verbally informed about her
duties and responsibilities from time to time.

COW2 conducted an appraisal of the Claimant's performance on the

11th of December 2016 whereby the Claimant’s performance was rated as below
expectation and not suitable for confirmation. The Claimant has clearly
demonstrated her lack of command of the English language when her
handwritten comments on the appraisal does not mirror that of what is expected
of an employee of her stature. Invariably, this piece of evidence puts paid to any
hope of the Claimant seeking to reinforce her position that she ought to have
been confirmed to her post.

COW2 recommended that the Claimant was not suitable for

confirmation in the light of the various work performance issues and minimal
competencies. Her core writing and editing skills were very basic and lacking in
the quality of someone in her position. COW2 had to seek assistance from
writers and editors from the Group Corporate Affairs Division to improve and edit
the Claimant’s work in order to meet the deadlines. The Claimant did not
challenge this piece of evidence.

The Claimant denies receiving verbal warnings. However, during

cross-examination, this is what she said:

“ Q: I refer you to page 19 COB. You were blamed by COW2

A: Yes. Most of the time I got blamed from her. “
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 This piece of evidence is crucial as it is the Claimant’s evidence that
she was not given any prior verbal warnings. Neither is it the pleaded case of the
Claimant. This evidence is diametrically opposed to the Claimant’s denial that no
warnings were given. This Court is of the considered view that written warnings
of the Claimant’s performance is not necessary. It was made known to the
Claimant on the 11th of December 2012 that she was not suitable for
confirmation.

In view of the managerial position held by the Claimant at the

material time, there was no actual need for the Respondent to have warned the
Claimant in writing on her performances. In INTER PACIFIC DEVELOPMENT
SDN. BHD V MAT JUHARI BIN HUSSEIN [ 1995 ] 2 ILR 85, the Industrial Court
was of the opinion that a professional employee is expected to render his service
professionally and that there was no justification for the Court to impose the
super added duty of issuing oral or written warnings of the prospect of dismissal.

In the case of James v Walthan Holy Cross UDC (1973) ICR 398
the Court held that;

“Those employed in senior management may be nature of their jobs

be fully aware what is required of them and fully capable of judging for
themselves whether they are achieving that requirement. In such
circumstances, the need of warning and an opportunity for improvement in
much loss apparent.”

There were no improvements in the Claimant’s performance despite

the warnings and the opportunity to do so.

On the issue of the Claimant’s competence, it is not disputed that as

a Corporate Communications Manager, proficiency of English is extremely

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important; more so when it involves an oil giant like the Respondent Company.
The Claimant had demonstrated her poor command of the English language in
her handwritten comments made on the appraisal form. This is not what is
expected from someone holding the Claimant’s position in a multinational oil and
gas company.

Further, the evidence of COW2 who testified that the Claimant was
unable to produce the “Exploration and Production Brochure” of good quality was
never challenged. This was despite COW2’s efforts to bring in more than 5 to 6
industry experts to provide information. These inadequacies in the opinion of the
Court had contributed to the Claimant not being confirmed to her position.

The Claimant had submitted that adverse inference should have

been invoked against the Respondent for failing to produce documents or
witnesses including one Ms Chiew Mei Leng who was excluded as an appraiser
to substantiate their allegations. The Court is of the view that this is non-issue as
the Claimant was only reporting the Ms Chiew for a month in June 2012. It would
not have made any significant difference. It was merely the beginning of the
Claimant’s tenure with the Respondent.

Having found that the Respondent has proven on the balance of

probabilities of the Claimant’s poor performance, the Court will proceed to decide
if the Claimant’s dismissal was for just cause and excuse.

In the case of Karen Liew Pui Leng v LYL Capital Sdn. Bhd.
(2013) 4 ILR 571, the Industrial Court held that the performance by its nature is
subjective and the best person to judge an employee’s performance should and
must be the employer. In RADIANT VISIONS SDN. BHD. v. DONALD WAYNE
DICKMAN [2003] 1 ILR 42 @ 46 that Learned Chairman the Honourable Mr. Lim
Heng Seng stated: -
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 "It is clear that the court will not lightly interfere with the exercise of
management prerogative which recognizes the principle that an employer who
is genuinely satisfied that a probationer is not suitable for permanent
employment as a confirmed employee may discharge the latter."

Premised upon the findings of this Court based on the totality of

evidence before the Court, the Court finds that the Respondent had discharged
its onus in proving that Claimant had not demonstrated sufficient capabilities as
required of an employee in her position to the reasonable expectation of an
employer. Thus she was not confirmed to her employment. It is the Court’s
finding that the Claimant’s termination was with just cause and excuse and her
claim is hereby dismissed. In arriving at this decision, the Court has acted with
equity, good conscience and the substantial merits of the case without regards to
technicalities and legal form as required under Section 30(5) the Industrial
Relations Act 1967.

Thus the Claimant’s claims is hereby dismissed.

HANDED DOWN AND DATED THIS 2nd DAY OF JUNE 2017.

~ Signed ~
(DOMNIC SELVAM GNANAPRAGASAM)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
PENANG BRANCH

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