IN THE INDUSTRIAL COURTS OF MALAYSIA

Case no.: 13/4-133/22

BETWEEN

AZLAN BIN ABU BAKAR

AND

ZETRO SERVICES SDN BHD

AWARD NO.: 869 OF 2023

BEFORE : Y.A. PUAN SELVA RANI THIYAGARAJAN

- Chairman (Sitting Alone)

VENUE : Industrial Courts of Malaysia, Kuala Lumpur

DATE OF REFERENCE : 13.01.2022

DATES OF MENTION : 25.02.2022; 06.10.2022; 31.10.2022.

DATES OF HEARING : 07.12.2022

REPRESENTATION : Azlan Bin Abu Bakar

Claimant – Present

Mr. Mathialaghan A/L Veraraghavam

Union Network International – Malaysia Labour Centre
(UNI-MLC)
Counsel for Claimant

: Mr. Wan Shaari Bin Wan Ismail

Company Representative
REFERENCE

This is a reference made under Section 20(3) of the Industrial Relations Act 1967 (Act

177), arising out of the dismissal of AZLAN BIN ABU BAKAR (hereinafter referred to as

"the Claimant") by ZETRO SERVICES SDN BHD (hereinafter referred to as the

Company") on 30 April 2021.

I. PROCEDURAL HISTORY

[1] The matter was fixed for mention on 25 February 2022, 06 October 2022, and 31

October 2022.

[2] The Trial proceeded to be heard on 8 December 2022. The written submission

was filed thereafter.

[3] This Court takes cognizance of the notes of proceedings and the following

pleadings, evidence, documents, and submission while handing down this Award:-

(a) Statement of Case dated

(b) Statement in Reply dated

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 (c) Rejoinder dated

(d) Claimant's Bundle of Documents ("CLB-1")

(e) Company's Bundle of Documents (I) ("COB-1")

(f) Witness Statement of the Claimant (Chen Chia-Yu) ('CLWS-1")

(g) Witness Statement of Tan Meng Wah ("COWS-1")

(h) Claimant's sketal submission

(i) Company's submission

II. THE ROLE OF THE INDUSTRIAL COURT

[4] The role of the Industrial Court under s 20 of the "The Industrial Relations Act"

was explored in the case of Milan Auto Sdn Bhd v. Wong Seh Yen [1 [1995] 3 MLJ

537. His lordship Justice Mohd Azmi bin Kamaruddin FCJ (as he was then) delivered the

judgment as follows:

"As pointed out by this Court recently in Wong Yuen Hock v. Syarikat Hong Leong

Assurance Sdn Bhd & Another Appeal [1995] 1 MLRA 412; [1995] 2 MLJ 753; [1995]

3 CLJ 344; [1995] 2 AMR 2145, the function of the Industrial Court in dismissal cases on

a reference under s 20 is two-fold firstly, to determine whether the misconduct complained

of by the employer has been established, and secondly whether the proven misconduct

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constitutes just cause or excuse for the dismissal. Failure to determine these issues on

the merits would be a jurisdictional error..."

His Lordship Raja Azlan Shah, CJ in the Federal Court case of Goon Kwee Phoy v. J

&P Coats (M) Bhd [1981] 1 LNS 30 held:-

“Where representations are made and are referred to the Industrial Court for 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 inquiry 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."

III. THE LAW AND BURDEN OF PROOF

[5] Whenever a Company causes the dismissal of a workman, it is mandatory for the

Company to discharge the burden of proof that the dismissal was with just cause or

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excuse. This Honourable Court will now refer to the case of Ireka Construction Berhad

v. Chantiravathan a/l Subramaniam James [1995] 1 MELR 373; [1995] 2 ILR 11, in

which stated the following:

"It is a basic principle of industrial jurisprudence that in a dismissal case, the employer

must produce convincing evidence that the workman committed the offense or offenses

the workman is alleged to have committed for which he has been dismissed. The burden

of proof lies on the employer to prove that he has just cause and excuse for taking the

decision to impose the disciplinary measure of dismissal upon the employee. The just

cause must be either misconduct, negligence, or poor performance based on the facts of

the case.”

IV. STANDARD OF PROOF

[6] The Court of Appeal, in the case of Telekom Malaysia Kawasan Utara V.

Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314, laid down that the standard of

proof in the Industrial Court is on the balance of probabilities:-

"Thus, we can see that the preponderant view is that the Industrial Court, when hearing

a claim of unjust dismissal, even where the ground is one of a dishonest act, including

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"theft," is not required to be satisfied beyond reasonable doubt that the employee has "

committed the offense," as in criminal prosecution. On the other hand, we see that the

courts and learned authors have used such terms as "solid and sensible grounds,"

"sufficient to measure up to a preponderance of the evidence," " whether a case..has

been made out", "on the balance of probabilities" and " evidence of probative value."

In our view, the passage quoted from Administrative Law by H.W.R Wade & C.F. Forsyth

offers the clearest statement on the standard of proof required, that is, the civil standard

based on the balance of probabilities which is flexible so that the degree of probability

required is proportionate to the nature of gravity of the issue."

[emphasis added]

But again, if we may add, these are not "passwords" that the failure to use them or if some

other words are used, the decision is automatically rendered bad in law."

[7] The Company dismissed the Claimant based on grounds of poor performance as

stated in the Notice of Termination dated 22 February 2021.

V. THE LAW OF POOR PERFORMANCE

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[8] Therefore, this Honourable Court will examine the law of poor performance.

In Lim Kok Tee v. HSBC Bank Malaysia Berhad [2012] 2 ILR 433 held that:-

"The legal requirements to justify a case of "poor or unsatisfactory performance" was aptly

described in Sime Darby Bhd v. Mathi Arasu [1991] 2 MELR 1; [1991] 2 ILR 836 (Award

248/91) where the IC stated as follows:

"Is the Company justified in dismissing the Claimant on the ground of unsatisfactory

performance? In the case of James v. Waltham Holycross Urban District Council

[1973] ILR 202 it was stated that:

“An employer should be very slow to dismiss an employee upon the ground that he is

incapable of performing work which he is employed to do without first 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.

Thus it is clear that in order to justify the dismissal, the Company has to establish three

things. Firstly, that the Claimant was warned about his unsatisfactory performance,

secondly that the Claimant was accorded sufficient opportunity to improve and thirdly,

notwithstanding the above, the Claimant failed to sufficiently improve his performance."

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VI. ISSUES TO BE DECIDED

1. That the employee was warned about his poor performance;

2. That the employee was given sufficient opportunity to improve;

3. That notwithstanding the above, the Claimant failed to sufficiently improve

his performance.

[9] Similar principles, as stated above, were applied in the case of Zy Nan Fang

Holidays (M) Sdn Bhd v. Ching Pei Ling [2007] 3 ILR 103.

[10] The matter before this Honourable Court is a dispute that accured from the

dismissal of the Claimant from his service with the Company via a Letter of Termination

dated 22 February 2021 on the grounds of poor performance.

VII. THE CLAIMANT MUST BE WARNED OF HIS POOR PERFORMANCE

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[11] There is no documentation before this Honourable Court that the Claimant was

warned of his poor performance.

[12] In fact, when Company's document (COB-1) are perusal by this Honourable Court

there are no documentation to show that the Claimant had displayed any act poor

performance.

[13] In fact, there are no warning issued by the Company to show that he was

conducting his work in poor performance.

[14] The COB-1 documents presented, apart from the letter of termination are follows:-

No Warning Of Poor
1 Letter of appointment dated 19 March 2003
Performance

No Warning Of Poor
2 Confirmation letter dated 2 January 2004
Performance

No Warning Of Poor
3 Pay Raise letter dated 10 October 2006
Performance

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 No Warning Of Poor
4 Pay Raise dated 6 June 2008
Performance

No Warning Of Poor
5 Pay Raise dated 8 May
Performance

No Warning Of Poor
6 Transfer Order (same level) dated 27 May 2020
Performance

Appointment as Project Manager dated 12 May No Warning Of Poor

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2007 Performance

No Warning Of Poor
8 Pay Raise dated 23 May 2019 dated
Performance

No Warning Of Poor

Performance (Note it was

Transfer Order (same level) dated 12 February undoing the earlier transfer
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2020 order of 27 May 2020 and

reverting the Claimant to his

original position)

[15] The Claimant had never received any warning letter from the Company and this

was confirmed by the COW1:-

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Peguamcara Penuntut : Dimana -mana di dokumen di sini ada

menunjukkan beliau telah melakukan salah laku

dihadapan Mahkamah?

COW1 : Tiada ditunjukkan.

[16] The Court is unable to find any documentation to support the contention that the

Claimant has performed work poorly.

[17] No correspondence or discussion is recorded to show the Claimant's work is

unsatisfactory or tardy.

[18] In cases of poor performances, applying the principles propounded in Milan Auto's

case, the Court had to first determine whether the culpable incompetence or inefficiency

complained of by the employer has been established and secondly whether the proven

culpable incompetent or inefficiency constitutes just cause or excuse for the dismissal.

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[19] The Company bears the burden of proof to prove on a balance of probabilities the

culpable incompetent or inefficiency and that the Claimant was dismissed for just cause

or excuse.

"Inefficiency which discloses a course of negative conduct, no doubt is sufficient ground

for termination but there must necessarily be sufficient proof that a procedure had been

followed. Ordinarily there must be sufficient communication to the Claimant in order to

establish inefficiency or poor performance before the Company can rely on it to justify

dismissal"

[20] The Company did not present any warning letters before this Honourable Court.

There was no letter of review of the Claimant's job but rather just pay increase letters.

[21] Claimant's re-examination:-

Peguamcara Penuntut : Syarikat ada beri apa -apa surat sebagai

teguran?

Penuntut : Tidak

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VIII. THAT THE EMPLOYEE WAS GIVEN SUFFICIENT OPPORTUNITY TO

IMPROVE

[22] Since the Company had not expressed dissatisfaction with the Claimant, or at the

very least, the Company did not present such documentation to this Honourable Court.

This Honourable Court fails to see if the Claimant was given sufficient opportunity to

rectify himself (if any).

[23] Claimant's Cross Examination:-

Merujuk kepada Soalan 14, Pernyataan Saksi

Wakil Syarikat : Tahu Syarikat tak puas hati kepada prestasi Encik Azlan ke 3

tahun ke belakang?

Penuntut : Tidak

IX. A NEW CHARGE

[24] The Question 12, with a new accusation of not obtaining new tender with TUDM

was not something that was stated in the Claimant.

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[25] Cross-examination:

Peguamcara Penuntut : Tuduhan di Soalan 12 tidak ada dalam

penamatan kerja Penuntut?

COW1 : Tidak

[26] Paragraph 6 of the Statement of Reply, the Company had introduced 2 new

charges against the Claimant different from what was presented in the Notice of

Termination dated 22 February 2021

[27] The Court notes that the Company may not introduce a new charge to justify the

termination after the dismissal.

[28] The Federal Court decision of Maritime Intelligence Sdn Bhd v. Tan Ah Gek

[2021] 10 CLJ 663]:-

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" Any such " just cause or excuse" can only refer to the reason resonating in the

employer's mind, prior to, or preceding the decision to dismiss. Those words do not

envisage the investigation or contemplation of matters or reasons that the employer

discovers subsequently or which operate on the employer's mind post-dismissal. These

subsequently matters may well go to the issue of the moulding if the relevant relief such

as contributory conduct, or compromise basis to refuse reinstatement and reduce or

refuse compensation in lieu. However, such subsequent and fresh evidence could not be

utilized retrospectively to justify a termination which was not effected for those reasons or

on that basis. This is because such 'cause' did not operate on the employer's mind at the

material time. Therefore, both literal and purposive statutory construction of section 20 do

not envisage the employer seeking to justfiy the termination utilizing post-dismissal

reasons"

The case of Suzana Wani Binti Seman dan Kolej WIT Sdn Bhd held as follows:-

"The only irrefutable conclusion that can be drawn in the circumstances is that the 5

additional charges were added at the eleventh hour by the Company as it was done out

of desperation by the Company to bolster its case against the Claimant to justify her

dismissal. The Actions of the Company were clearly tainted with mala fide as 5 additional

charges were never preferred against the Claimant at the material time, and it dismissed

the Claimant on the 5 additional charges contrary to the Claimant's basic rights to natural

justice and more specifically the right to be heard and to defend herself. The Court finds

15
that the aforesaid actions of the Company in dismissing the Claimant are unconscionable,

mala fides and pointedly aimed to justify a dismissal that the Court finds are based on

unfair and bias grounds and against the principles of equity and good conscience."

[29] The cross examination of COW1:-

Peguamcara Penuntut : Pihak menuntut dipecat kerana syarikat dan

bukan prestasi

COW1 : Setuju

Peguamcara Penuntut : Penuntut tidak dipecatkan kerana penutupan

syarikat

COW 1 : Setuju

X. THAT NOTWITHSTANDING THE ABOVE, THE CLAIMANT FAILED TO IMPROVE

HIS PERFORMANCE SUFFICIENTLY

[30] Since the Claimant was not warned of poor performance, the Claimant could not

be aware that he would need to improve on his work performance.

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[31] No warning letters were issued to the Claimant and were presented to this

Honourable Court.

[32] For dismissal based on poor performance, a Disciplinary Inquiry not being held is

not required as stated in the Dreamland Corp (M) Sdn Bhd v. Chong Chin Sooi [1988]

1 CLJ rep 39. In that case, the Court stated that there is no legal requirement for domestic

inquiry, especially in cases related to poor performance. Even where there is a

requirement to hold a domestic inquiry, failing does not render the dismissal unfair.

[33] However, based on the facts and evidence case stated above paragraph this

dismissal is deemed to be against the principles of natural justice, and the Claimant was

not given a warning letter.

[34] This Court thus finds that the Company had failed to establish that the Claimant's

dismissal was due to poor performance.

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[35] There have been no reviews, warning letters, counseling, or coaching sessions.

Without feedback from the Company on any possible poor performance (if any), the

Claimant can know and rectify his work performance. The entire process and procedures

involving the dismissal of the Claimant are unknown or vague.

[36] The Court rules that the Claimant's poor performance is not substantiated and the

Claimant's termination is without just cause and excuse.

[37] In conclusion, based on the circumstances of the present case in its entirety and

the evidence adduced by both parties in totality in the proceedings and upon hearing the

testimonies of the witnesses and perusing the written submission, the Court is of the

considered view that the Company had not discharged its burden on the balance of

probabilities to prove that the Claimant's dismissal on poor performance was without just

cause and excuse.

XI. REMEDY

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[38] The Court will now consider the relief of reinstatement inappropriate, taking into

account the circumstances of the case. There has been a total breakdown of trust and

confidence between the Claimant and the Company.

[39] Further to that, the Claimant started working as Senior Manager in July of 2022.

[40] The Claimant's salary, together with allowance before his dismissal, was meted

out as RM 6900.00.

[41] The Claimant is entitled to be compensated in lieu of his reinstatement at a rate of

one month's salary for each year of service. The Claimant had been in employment with

the Company from 02 May 2010 until his dismissal on 30 April 2021. Thus the Claimant

had been in the Company's employment for seventeen completed years before he was

dismissed. The Claimant is therefore entitled to compensation in lieu of reinstatement for

a total of sum of RM 117,300.00 i.e, RM 6900.00 x 17 months.

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[42] Para 1 of the Second Schedule of the Industrial Relations Act 1967 provides that

if back wages are to be given, such as back wages shall exceed 24 months back wages

from the date of dismissal based on the last drawn salary of the person who has been

dismissed without just cause or excuse. The Claimant was dismissed on 30 April 2021,

and the hearing of this case was completed on 07 December 2022. A duration of only 19

months has passed. Thus, the Court allows a total of 19 months back wages, amounting

to RM 131,100.00, i.e RM 6900.00 x 19 months.

[43] The Claimant testified before this Court that he had gainfully employed as of July

2022. Therefore, will be a deduction of post-dismissal earnings as he was not

unemployed for a full 24 months since his dismissal from the Company.

XII. AWARD

[44] The Court awards and directs that the Company pay the Claimant a total sum of

RM 229,080.00, which is derived from the following calculations:-

(i) Compensation in Lieu of Reinstatement

Date of Employment : 02 Mei 2003

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 Date of Dismissal : 30 April 2021

Salary in Arrears : RM 6,900.00 x 17 months

_____________

RM 117,300.00
_____________

(ii) Backwages

Date of Dismissal : 30 April 2021

Date of Hearing : 07 December 2022

RM 6,900.00 X 19 months :RM 131,100.00

less 20 % :RM 26,220.00

______________

RM 104,880.00
______________

______________

(iii) Total Overall : RM 222,180.00

______________

[45] The Company shall pay the said award sum of RM 222,180.00, less statutory

deduction (including but not limited to EPF and SOSCO contributions) to the Claimant's

representative, UNI Malaysia Labour Centre, within 30 days from the date mentioned at

the bottom of this Award.

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[46] The Court also hereby orders that the Company shall pay the statutory

contributions deducted from the award sum as well as its own shares towards the

contributions to the relevant statutory bodies, including all interests and/or dividends

payable on statutory contributions from the date mentioned at the bottom of this Award.

HANDED DOWN AND DATED THIS 6TH DAY OF APRIL 2023

-Signed-

(SELVA RANI THIYAGARAJAN)

CHAIRMAN
INDUSTRIAL COURTS OF MALAYSIA
KUALA LUMPUR

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