IN THE INDUSTRIAL COURT OF MALAYSIA

AT IPOH, PERAK

CASE NO. 10/4-1353/22

BETWEEN

THOMAS WILSON LOWRIE …The Claimant

AND

FAIRVIEW INTERNASIONAL SCHOOL IPOH SDN. BHD. …The Company

AWARD NO.: 1502 OF 2023

Before: Y.A. TUAN ZULHELMY BIN HASAN – CHAIRMAN

Venue: Industrial Court of Malaysia, Ipoh, Perak

Date of Reference: 12/09/2022

Dates of Mention: 17/10/2022, 06/12/2022 & 18/04/2023

Date of Hearing: 08/05/2023

Representation: For the Claimant:

Thomas Wilson Lowrie
Claimant In person - Absent

For the Company:

Jessica Ram Binwani with
Eqram Mustaqeem Bin Muhamad (PIC)
Messrs. Kanesh Sundrum & Co.

Reference:

This is a reference made by the Director General of Industrial Relations Malaysia

dated 12/09/2022 pursuant to Section 20(3) of the Industrial Relations Act 1967

which was received by the Industrial Court of Malaysia on 14/09/2022 arising out of

the alleged dismissal of Thomas Wilson Lowrie (hereinafter referred to as “the

Claimant”) by Fairview Internasional School Ipoh Sdn. Bhd. (hereinafter referred

to as “the Company”) on 30/11/2021.

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 AWARD

Factual Backgrounds:

1. The dispute referred by the Director General of Industrial Relations Malaysia

to this division of the Industrial Court under Section 20(3) of the Industrial

Relations Act 1967 arising out from the alleged unjust termination of the Claimant

from Fairview Internasional School, Ipoh on 30/11/2021.

2. Fairview Internasional School Ipoh Sdn. Bhd. (the Company) employed the

Claimant as the Acting Principal of the Fairview International School campus in Ipoh

with a three (3) years fixed-term contract commencing 17/05/2021 until 15/05/2024

vide a Letter of Appointment dated 06/04/2021 (at pages 100-105 of COB-1).

However, the Claimant only commenced employment with the Company on

31/05/2021. As such, the employment contract of the Claimant was revised to end

on 30/06/2024 vide a letter dated 31/05/2021 (at page 107 of COB-1).

3. Under Clause 2 of the Claimant’s contract specified that the Contract Review

Period would be six (6) months and that the Company would conduct a review of the

Claimant’s performance before or by end of the six (6) months. The Contract

Review Period is essentially the probation period, which is enable the Company to

assess the Claimant’s performance and his suitability for his position with the

Company, then the Company reserved the right to extend the Review Period or

terminate the contract.

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4. The Claimant’s contract was terminated on 30/11/2021 at the end of the six

(6) months Performance Review Period after the Company found out that the

Claimant was unsuitable for his position and was unable to fulfil the requirements of

the position. Vide a letter of termination dated 16/11/2021 (at page 111 of COB-1)

the Company is of the view that the Claimant’s work performance is not satisfactory

and he is unsuitable for the position as the Company has yet to see any significant

improvements to his work performance as per the Company’s expectations as

notified to the Claimant earlier. Accordingly, the Claimant’s employment with the

Company shall cease at the end of his Contract Review Period on 30/11/2021.

5. The Claimant contends that as a contracted employee he had the right to be

employed until his contract expired on 30/06/2024. The Company asserts that at the

time of his dismissal, the Claimant had only completed the first six (6) months of his

contract, which was the Performance Review Period or probation period. The right

to be employed as per the full duration provided in the fixed term contract is

conditional upon satisfactory performance during the Performance Review Period of

probation period, which the Claimant had failed to fulfill despite being provided the

opportunity to do so.

6. Thereafter, the Claimant filed his representation in this case against the

Company on the ground that he was terminated on 30/11/2022 without just cause or

excuse. The Claimant was absent from the hearing of this case which was fixed on

08/05/2023 at the Industrial Court, Ipoh, Perak and the Court exercised its powers

and proceeded the hearing on an ex-parte basis under Section 29(d) of the

Industrial Relations Act 1967.

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7. The Claimant only informed the Court of his absence but was silent on any

application to adjourn the date of trial. The Company had asked the permission of

the Court for the trial to proceed on an ex-parte basis as substantial case

preparations had been made such as the logistic and travel from Kuala Lumpur to

Ipoh, Perak, and all the Company’s witnesses were already present at the Court

itself to testify in this trial.

The Law:

8. When dealing with a reference under s. 20 of the Act, the Court has to ask

itself the following questions; whether there was a dismissal and whether the said

dismissal was with or without just cause or excuse. In Wong Chee Hong v. Cathay

Organisation Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298, His Lordship

Tun Salleh Abas LP at page 302:

"When the Industrial Court is dealing with a reference under s. 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."

9. The Federal Court in the case of Goon Kwee Phoy v. J & P Coats (M)

Bhd. [1981] 1 CLJ 30 has held that there is no difference between a termination with

notice and summary dismissal as the effect of the decision is the same. His

Lordship Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) held as

follows:

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 "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 the 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 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."

10. In Federal Court case of Milan Auto Sdn. Bhd. v. Wong Seh Yen [1995] 4

CLJ 449; [1995] 3 MLJ 537, YA Mohd Azmi bin Kamaruddin FCJ, had explained the

functions of the Industrial Court under s. 20 of the Act as follows:

“As pointed out by the court recently in Hong Leong Assurance Sdn.
Bhd. v. Wong Yuen Hock [1995] 3 CLJ 344; [1995] 2 MLJ 753, 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 constitutes just cause or excuse for the
dismissal. Failure to determine these issues on the merits would be a
jurisdictional error...”

11. In Colgate Palmolive (M) Sdn. Bhd. v. Yap Kok Foong [1998] [1998] 3

ILR 843 (Award No. 368 of 1998) the Industrial Court held that:

“In a s. 20 reference a workman's complaint consists of two elements;

that he has been dismissed and secondly, that such dismissal was
without just cause or excuse. It is upon these two elements being

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 established that the workman can claim his relief, to wit an order for
reinstatement which may be granted or not at the discretion of the court.
As to the first element, industrial jurisprudence as developed in the
court of industrial adjudication readily recognises that any act which has
the effect of bringing a contract of employment to an end is a dismissal
within the meaning of s. 20 of the Act. The terminology used and the
means resorted to by an employer is of little significance, thus
contractual terminations, constructive dismissals, non-renewals of
employment contracts, force resignations and retrenchments are all
species of the same genus which is dismissals.”

12. It is trite law that the Company bears the burden to prove that the decision to

dismiss the Claimant had been done with just cause or excuse. In Ireka

Construction Bhd. 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.”

13. The Company needs only to prove that the actions taken justifies the

dismissal or termination on a balance of probabilities. In Telekom Malaysia

Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 it was

held that:

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 “... it is quite clear to us that the Industrial Court should not be burdened
with the technicalities regarding the standard of proof, the rules of
evidence and procedure that are applied in a court of law. The
Industrial Court should be allowed to conduct its proceedings as a
"court of arbitration", and be more flexible in arriving at its decision, so
long as it gives special regard to substantial merits and decide a case in
accordance with equity and good conscience.”

14. 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 dishonest

act, including "theft", is not required to be satisfied beyond reasonable doubt that the

employee has "committed the offence", as in a criminal prosecution... 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.

15. In terms of whether the Industrial Court has jurisdiction to hear a matter

involving a probationer, the status of a probationer is explained by the Court of

Appeal in the case of 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 p. 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

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 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.”

16. In Dorsett Regency Hotel (M) Sdn. Bhd. v. Andrew Jayadass James

Ambroze [2003] 2 ILR 740, the Industrial Court held:

"An employee on probation enjoys the same rights as a permanent or

confirmed employee. A probationer's services must not be terminated
without just cause or excuse. However, there is an intrinsic and
material distinction between employees under probation and confirmed
permanent employees."

17. In the case of Equatorial Timber Moulding Sdn. Bhd. Kuching v. John

Michael Crosskey [1986] 2 ILR 1666 (Award No. 387 of 1986), the learned

Chairman described the legal character of probationary employment and the

respective rights and obligations of the employee and employer. The learned

Chairman propounded:

“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,

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 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.”

18. The process by which suitability is assessed by the employer must be fair,

i.e., it must not be not capricious, arbitrary or tainted by unfair labour practice. The

employer must also show reasonable steps had been taken to maintain appraisal of

the probationer throughout the trial period of employment, giving him advice or

warning him when such was likely to be useful or fair. The management should

make an honest effort to determine whether the probationer came up to the required

standard.

19. The employer should afford a probationary employee every opportunity to

prove himself suitable. Where there is any deficit or shortcoming by the employee

during his probationary period, he should be told in what respect he has failed and

be guided on his responsibilities.

20. The question is whether the probationer had a fair opportunity to prove

himself. The employer must demonstrate that he had arrived at an honest

assessment of the probationer's ability or otherwise for permanent employment (see

Inti IABS Sdn. Bhd. (Inti College Sarawak) v. Frank Samuel Agong [2000] 3 ILR

204).

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21. As a Court of arbitration, s. 30(5) of the Industrial Relations Act 1967 (Act

1977) requires the Court to decide a case in accordance with equity and good

conscience. Gopal Sri Ram JCA's decision in Harris Solid State (M) Sdn. Bhd. &

Ors v. Bruno Gentil Pereira & Ors [1996] 4 CLJ 747 CA had stated that it is

incumbent upon the Court to have regard to substantial merits of the case rather

than to technicalities.

The Issues:

22. Based on both the parties' case as stated above, it is apparent that the three

(3) questions which the Court has to ask itself are:

(i) Was the Claimant as probationer and his non-confirmation at the end of

the probation period on the grounds of alleged unsatisfactory or poor

performance;

(ii) Was there a dismissal; and

(ii) If the answer to (i) and (ii) is in the affirmative, was the dismissal with or

without just cause or excuse.

23. As stated in the case of Wong Chee Hong v. Cathay Organisation (M)

Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298 by the then Supreme Court as

follows:

“On the authorities, we were of the view that the main and only function
of the Industrial Court is dealing with a reference under s. 20 of the Act

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 (unless otherwise lawfully provided by the terms of the reference), is to
determine whether the misconduct or irregularities complained of by the
Management as the grounds of dismissal were in fact committed by the
workman, and if so, whether such grounds constitute just cause or
excuse for the dismissal.”

The Law on Ex-Parte Hearing:

24. In the case of Manimaran Karuvanan v. Tav Facility Solution (M) Sdn.

Bhd. [2020] 2 LNS 1374 neither the Company nor its representative was present

when the matter was called hearing. The Industrial Court had proceeded with an ex-

parte hearing in the absence of the Company pursuant to Section 29(d) of the IRA

1967. It was held as follows:

"... both parties had been sufficiently informed of the hearing dates fixed
for this case. However, the Company failed to turn up in Court on the
Hearing date. Hence, the hearing was ordered to proceed Ex-Parte
pursuant to section 29(d) of the IRA 1967. In relation to this, the Court
is guided by the case of Lee Mei Wan v. Ultimate Media Group Pte
Ltd. [2017] 2 LNS 1668. It was observed that:

Ex-parte haering:

[4] Subsection 29(d) of Act 177 provides for an ex-parte hearing

without the presence of one of the parties to the dispute as follows:

"The Court may, in any proceedings before it:

(a) ...
(d) hear and determine the matter before it notwithstanding the
failure of any party to submit any written statement whether of
case or reply to the Court within such time as maybe prescribed by

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 the President or in the absence of any party to the proceedings
who has been served with a notice or summons to appear".

[6] Therefore, the Court was of the view that in the circumstances of
this case, an ex-parte hearing was warranted due to the Company's
failure to attend Court although the Notice of Hearing and the earlier
Notice of Mention had been served on it as stated above.

25. Even if PYM does not appear in Court, this does not mean that the Court will

continue to hand down the award in favour of the Company. It is the Court's duty to

examine, evaluate and consider all the evidence before the Court before any order

or award is issued. This is as decided in the case of Wong Brothers Construction

v. Choo Chee Siam [2005] 2 ILR 356, which was held that:

"The Court is mindful of the role in ex-parte hearing by referring to the

case of Ike Video Distributors Sdn. Bhd. v. Chan Chee Bin [2004] 2
ILR 687 where the learned Chairman quoted from "The Law of
Industrial Disputes" by O.P. Malhotra, Vol. 3rd Edn. at p. 716:

A rule empowering the tribunal to proceed ex-parte if a party is absent

and sufficient cause is not shown for his absence, would not enable it
either to do away with the enquiry or straightaway pass on an award
without giving a finding on the merits of the disputes. In other words,
the absence of a party does not entail the consequence that an award
will straightaway be made against him."

26. In the case of Dawood Khan v. Labour Court [1969] 11 ILJ 611 (AP) it

was held by Chinnappa Redd J.:

"Ex-parte" only means in the absence of the other party. It creates a

fiction which enables a tribunal to presume that all parties are present

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 before it. A fortiori; an adjudicator may imagine that the absentee is
present and having done so, it may give full effect to its imagination and
carry it to its logical conclusions."

27. Having taken into account that the date of this trial has already been

informed to the Claimant and the Claimant knows about the date of this trial, yet

chooses not to attend the Court without a reasonable reason and explanation, then it

is the duty of the Court to give instructions or do all necessary and appropriate

proceedings to ensure the trial of this case may be expedited as provided under

Section 29(g), Industrial Relations Act 1967. Therefore, based on the authority

provided under Section 29(d) of the Act, the Court gave instructions for the trial of

this case to proceed ex-parte.

Cause Papers, Bundle of Documents, Witness Statement & Written

Submission Referred:

28. In the course of hearing of this case, the Claimant was absent from attending

the trial and no witness is called by the Claimant to testify for his case, however the

Company called four (4) witnesses to testify for the Company’s case namely:

(i) Gopihathan A/L K. Raman Kutty (COW-1): Principal & Director of the
Company;

(ii) Ann Lim Lai Iang (COW-2): Principal, Fairview International School,
Penang:

(iii) Vigneswary A/P S. Veerasingam (COW-3): Acting Head of Ipoh

Campus; and

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 (iv) Kan Poh Yi (COW-4): Primary Year Programmes Coordinator.

29. The Court referred to the following documents which were tendered by the

parties in the hearing as follows:

(i) Statement of Case dated 14/10/2022;

(ii) Statement of Reply dated 21/11/2022;

(iii) Rejoinder undated and received on 16/12/2022;

(iv) Company’s Bundle of Documents marked as COB-1;

(v) Company’s Supplementary Documents marked as COB-2;

(vi) Witness Statement of Gopinanthan A/L K. Raman Kutty (COW-1)

dated 08/05/2023 marked as COWS-1;

(vii) Witness Statement of Ann Lim Lai Iang (COW-2) dated 08/05/2023
marked as COWS-2;

(viii) Witness Statement of Vigneswary A/P S. Veerasingam (COW-3)

dated 08/05/2023 marked as COW-3;

(ix) Witness Statement of Kan Poh Yi (COW-4) dated 08/05/2023 marked

as COWS-4;

(x) Company’s Written Submission dated 02/06/2023.

Evaluation & Findings:

30. The Claimant was dismissed on the grounds of poor performance. For

dismissal of employees due to poor performance, it is incumbent upon the Company

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as the employer to satisfy the burden of proof based on the balance of probabilities

that the termination is justified on grounds of poor performance.

31. The Claimant was employed by the Company as the Acting Principal of

Fairview International School, Ipoh (the Company) on a fixed term contract from

17/05/2021 to 15/05/2024, which later was revised to end on 30/06/2024 as the

Claimant only reported for duty on his first working day on 31/05/2021. All other

terms in the original employment contract maintained as is. The first question is,

whether the Claimant is a probationer and had a right to be employed until the expiry

of the fixed-term contract?

32. After the Claimant joined the Company, he was assigned a mentor under

Ms. Ann Lim Lai Iang (COW-2), to guide and mentoring him on a regular basis with

his work. Ms. Ann Lim was the Principal of Fairview International School at Penang

who had several meetings with the Claimant during the months of August 2021 to

September 2021. Subsequently, Ms. Ann Lim issued a report to the Company on

his performance and issues (at pages 9-11 of COB-1). Gopinathan A/L

K.Ramankutty (COW-1) as the Principal of Fairview Ipoh and as the Claimant’s

immediate superior also had weekly meetings with the Claimant, where they would

discuss the Claimant’s work and his Key Performance Indicators (KPIs).

33. Under Clause 2 of the Claimant’s contract specified that the Contract Review

Period would be six (6) months and that the Company would conduct a review of the

Claimant’s performance before or by end of the six (6) months. The Contract

Review Period is essentially the probation period, which is enable the Company to

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assess the Claimant’s performance and his suitability for his position with the

Company, then the Company reserved the right to extend the Review Period or

terminate the contract. In this case, the Claimant had completed his Contract

Review Period.

34. The Claimant’s contract was terminated on 30/11/2021 at the end of the six

(6) months Performance Review Period, after the Company found out that the

Claimant was unsuitable for his position and was unable to fulfil the requirements of

the position.

35. Salient terms were provided in the employment contract agreed upon

between the Claimant and the Company, amongst it that the Company will conduct a

review of the Claimant’s performance before or by the end of the first six (6) months

of the contract period. The Company may provide guidance and training if deemed

necessary during the Performance Review Period that his performance will be

assessed by the Company and if in the discretion of the Company found out that the

Claimant is unsuitable for the position or unable to fulfil the requirements of the

position, the Company may extend the Performance Review Period or terminate the

employment contract prematurely without any liability to the Claimant (Clause 2 of

the employment contract at pages 101 of COB-1).

36. As such, it is clear that there is no entitlement at all for the Claimant to be

employed for the full extent of the fixed term contract as the Company had made it

clear in Clause 2 of the contract that his fixed-term employment was subject to

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satisfactory performance and suitability for the position of Acting Principal of the

school at that material time.

37. Apart from the above, under Clause 4 of the employment contract (at pages

101-102 of COB-1) clearly set out that in the contract, the Company expected the

Claimant, holding a senior position as Acting Principal to discharge his duties as set

out in therein, including his immediate duties of increasing student enrolment based

on the Key Performance Indicators (KPIs) as determined by the Company from time

to time and to strengthen the relationship between the parents and teachers of the

school. During the six (6) months period, if it is decided that the Claimant is

unsuitable for his position, then the Company reserves it rights to extend the

Performance Review Period or to terminate the employment contract.

38. However, the Claimant had on the date of his dismissal, completed six (6)

months Performance Review Period or Probation Period as set out in the contract, at

the end of which the Company was entitled to determine whether he had

satisfactorily performed in his role and was suitable for the position in order to decide

whether to retain the Claimant for the full fixed-term contract period.

39. It is trite law that an employee on probation would enjoy the same rights as a

permanent or confirmed employee and, therefore his service could not be terminated

without just cause or excuse. However, a probationary employee has no substantive

right to the position he holds and must prove his fitness and suitability for the post

which is reviewed by the employer during the probationary period and the employer

is entitled to terminate the employee’s employment contract if he is found unsuitable

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for the position. For that reason, the appointment of a probationer as a permanent

employee is very much dependent on the employer’s satisfaction as to his suitability.

Nevertheless, the employer in exercising this prerogative power should not act

capriciously and arbitrary, see Khaliah Abbas v. Pesaka Capital Corp Sdn. Bhd.

[1997] 3 CLJ 827.

Whether The Complaint That The Claimant Was A Poor Performer Has Been

Proven?

40. In the High Court case of Hartalega Sdn. Bhd. v. Shamsul Hisham Mohd

Aini [2004] 3 CLJ 257 it was held by Wan Afrah JC (as Her Ladyship then was) that

the test to dismiss an employee for poor performance was not the same for

probationers as compared to that for confirmed employees. Probationers are

considered as employees on trial and thus there is no necessity to provide them with

written or oral warnings prior to dismissal. In her judgment, Wan Afrah JC stated:

"(i) Having perused Khaliah's case, it was very obvious to me that the
Court of Appeal has enunciated that a probationer enjoys the same
rights as a confirmed employee, and his or her service cannot be
terminated without just cause or excuse.

(ii) It appeared to me that Khaliah's case does not explain or state the
standard required to be proved by the employer to justify the
probationer's termination is with just cause and excuse and that the
standard is the same as that required of a confirmed employee.

(iii) I approved John Louis O'Hara's (the Chairman of IC) statement in

the Dorsett case who commented that Khaliah's case does not expound
the substantive law pertaining to a probationer but relates to the specific

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 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 or excuse.

(iv) Having scrutinized the award, it does seem to me that the

Chairman of the IC interpreted Khaliah's case per se and came to the
conclusion that since a probationer is a workman within the meaning
of s. 20(1), therefore the same standard is to be applied to both a
probationer and a confirmed employee in reference to dismissal.

(v) To my mind, I subscribe to the concept/principle that there should

be a distinction between the two categories of workman. I verily believe
that 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 as this was not the intention of the
legislature in enacting s. 20(3) of the IRA 1967.

(vi) To my mind it was wrong for the Chairman of the IC to adopt the
principles in Ireka and Rooftech which only refer to confirmed
employees. My opinion is that the rigid test as expounded in the said
case should not be applied to employees on probation, especially with
regard to requiring a written warning. To me, the monthly appraisal
report produced by the applicant and which was communicated and
discussed with the respondent was sufficient for reason of dismissal".

41. In Azmi & Company Sdn. Bhd. v. Firdaus Musa [2000] 2 ILR 510 it was

held by the Industrial Court:

"Bearing in mind that efficiency and satisfactory work performance, inter

alia, contribute towards suitability, in cases of inefficiency and
unsatisfactory work performance the court has to be satisfied in what
manner the worker has failed to perform; whether he was pre-warned or

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 notified of his shortcomings and whether in spite of the warnings he still
failed to perform.

42. This brings us to the law in regard to warnings. In Rooftech Sdn. Bhd. v.

Ho Inn Penang [1986] 2 ILR 818 @ 822 the learned chairman in holding that there

was not an iota of evidence that the claimant was on probation went on to say as

follows:

“Inefficiency which discloses a course of negative conduct no doubt is a

sufficient ground for termination but there must necessarily be sufficient
proof that a procedure had been followed. Ordinarily there must be
sufficient written communications to the Claimant in order to establish
inefficiency or poor performance, before the Company can rely on it to
justify dismissal.”

43. In I.E. Project Sdn. Bhd. v. Tan Lee Seng [1987] 1 ILR 115, the learned

Chairman articulated as follows:

“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.”

44. In Ireka Construction Bhd. v. Chantiravathan Subramaniam [1995] 2 ILR

11 at p. 16, the learned chairman stressing the essentiality of written warnings

stated:

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 “It would appear... that a written warning by the Company is essential
before it can dismiss the Claimant on the ground of poor performance.
In the instant case it is not disputed that the Claimant was never given a
written warning but the Company alleges he was given oral warnings
which were adequate. That being so the burden is on the Company to
adduce convincing and compelling evidence to prove this.

However, because the employee on probation holds no lien to the post,

is subject to confirmation and has to prove himself in terms of efficient
and satisfactory work performance, the real test should therefore be
whether he 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. As such this court holds that the rigid test expounded in the
Ireka and Rooftech cases should be tempered in its applicability and
application to employees on probation especially so in regard to written
warnings. The decisions in the cases of Ranbaxy (Malaysia) Sdn.
Bhd. v. Vijaya A. Rajadurai [1999] 1 ILR 430 and SIS Distribution
(M) Sdn. Bhd. v. Yap Yeow Kong [1999] 2 ILR 196 indicate that a
written warning is essential before the worker can be dismissed on the
ground of poor performance. This court views the issue of written
warnings as nothing more than the fulfilment of the evidential burden of
proof thrust on the company and not as a legal burden imposed by law,
especially so in cases involving employees on probation. As long as the
company makes known to the claimant his shortcomings, inefficiencies
and instances of unsatisfactory and poor performance, this court will
regard the company as having met the test".

45. In this case, the Company has to show that sufficient steps had been taken

to inform or warn the Claimant of his poor performance and sufficient opportunity

given to improve his performance and meet the expectation of the Company of his

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KPIs and his suitability for the position. However, in the case of probationer, the test

and steps to be taken is not expected to be equal to that of a confirmed employee.

46. Evidence of COW-1 confirmed that he conducted the Interim Performance

Review and then issued a letter dated 23/09/2021 (at page 109 of COB-1) to the

Claimant, setting out the areas in which the Claimant is lacking and requires

improvement. The areas of concern set out in the Performance Review including

timely reporting to respond in a timely manner in chat groups for Ipoh among the key

leadership in the organization and the Company to ensure operations run smoothly

which COW-1 had reminded the Claimant verbally about this several times.

47. COW-1 and the Company found that the Claimant’s communication with

parents and his efforts towards fulfilling his KPIs for student enrolment was lacking.

Most of the communication was done by the Sales and Marketing team, and not by

the Claimant himself. However, as Acting Principal, he was expected to have

personal communication and contact with parents to fulfil his KPIs for student

enrolment. COW-1 had explained that the Claimant was given certain KPIs for

student enrolment, which were informed to the Claimant at the commencement and

reinforced in the Company’s letter to the Claimant dated 23/09/2021 (at page 109 of

COB-1). However, the Claimant failed to meet this KPI at all.

48. Evidence of COW-1 explained that a lot of marketing matters and events

were activities already planned by the school and not initiated by the Claimant.

COW-1 denied the Claimant’s claim that he generated and obtained 153 leads and

explained that the leads were all contacted by the sales and marketing staff of

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Fairview International School at Ipoh, and not by the Claimant, and some had

already enrolled prior to the Claimant’s commencement of employment with the

school.

49. COW-1 also discovered that the Claimant had a poor understanding of the

Company’s working culture and environment. He had in fact complained to about

the Company management to his subordinates which was very unprofessional. The

Claimant also did not have a good rapport with his staff and fellow colleagues.

COW-1 had personally received complaints from staff who told him that they could

not work with the Claimant and wished to resign. They also complained that the

Claimant was rude, used foul language from time to time and his choice of language

was poor. As a result of this poor attitude and temperament, he did not have the

respect of his staff and the teachers. COW-1 found that the Claimant to be

unsuitable for an educator and within a school context. Evidently, these findings

have also supported by the evidence of COW-3 and COW-4 in the trial.

50. COW-1 who had reviewed the Claimant’s performance and KPIs found that

the Claimant’s performance as Acting Principal was lacking as his work progress

was not up to par. He had poor interpersonal skills and was unable to secure the

support and respect from his subordinates and team members. He would blame the

employees instead of taking responsibility as a leader. He is also made little effort to

improve his knowledge and understanding the Company’s operations and working

culture. He also failed to take effort to gain at least a basic understanding of the

International Baccalaureate (IB) methodology of teaching at the school during his

contract review period.

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Whether Claimant Was Given Sufficient Time To Improve His Performance?

51. In the case of Zainudin Hamid v. Hong Leong Bank Berhad [2015] 2 LNS

0031, the decision of a division of the Industrial Court had observed as follows:

"The need for warning and an opportunity for improvement is much less
apparent for those employed in senior management. The National
Industrial Relations Court in the case of James v. Watham Holy Cross
Urban District Council [1973] I.C.R. 398 at page 404 decided as
follows:

"If an employee is not measuring up to the job, it may be because

he is not exercising himself sufficiently or it may be because he
really lacks the capacity to do so. An employer should be very
slow to dismiss upon the ground that the employee is incapable of
performing the 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. But those employed in senior
management may by nature of their jobs be fully aware of what is
required of them and fully capable of judging for themselves
whether they are achieving that requirement. In such
circumstances, the need for warning and an opportunity for
improvement is much less apparent".

52. In the case I Bhd. v. K.A Sandurannehru Ratnam & Anor [2004] 5 CLJ

460, 464 the High Court ruled that in deciding whether the dismissal was without just

cause what the Industrial Court had to consider was merely whether on the evidence

produced before it, the employer had reasonable grounds in dismissing the

employee.

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53. In the case of Ireka Construction Berhad v. Chatiravathan a/l

Subramaniam James [1995] 2 ILR 11, another division of this Court has laid down

what a Company has to do to in order to establish poor performance. At page 16, the

Court held as follows:

"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 workman was warned about his poor performance;

(ii) that the workman was accorded sufficient opportunity to improve;

and

(iii) that notwithstanding the above, the workman failed to sufficiently

improve his performance."

54. In Juli Ooi v. DDI Asia/Pacific International Ltd. [2013] 4 ILR 79, at 120 a

division of this Court referred to the case of Samsudin Mat Amin v. Austral

Enterprises Bhd. [Award No. 74 of 1974] and stated the instances when

employers are justified to give notice of termination. The learned Chairman held as

follows:

"... Incompetency also is a ground for dismissal, indeed ineptitude

resulting in failure to perform the duties of the service destroys the
whole reality of the contract from the point of view of the employer. It
must be remembered that the vast majority of employees make their
employers the judges of their efficiency, and as long as the employers
act bona fide, ie, if he is genuinely discontented with an employee, he is
quite entitled to give notice of termination."

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55. In Alidair Ltd. v. Taylor [1978] ICR 445 which was referred to by Ms.

Mehala in the Company's Written Submission, Lord Denning MR had stated as

follow:

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

sufficient that the employer honestly believes on reasonable grounds
that the man is incapable and incompetent. It is not necessary for the
employer to prove that he is in fact incapable and incompetent."

56. It is clear findings that the letter dated 23/09/2021 clearly sets out areas of

improvement to the Claimant and during their weekly meetings, but unfortunately,

the Claimant did not take the feedback constructively. Further, the Claimant is in a

very senior position as the Acting Principal of the school. He was fully aware of what

was expected of him by the Company as this was communicated to him from time to

time and during their regular meetings. In fact, a mentor (COW-2) was assigned to

him to assist him and to monitor his progress in achieving the goals, and especially

the enrolment KPI set for him.

57. COW-1 further testified and confirmed that at the end of the review period,

the Company found that the Claimant had not improved despite the feedback given

during the Interim Review, and found the Claimant to be unsuitable for his position

as well as unable to meet the KPIs set for him. As such, the Company terminated

the contract with the Claimant in accordance with Clause 2 of the said employment

contract.

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58. Evidence of COW-2 (Ann Lim Lai Iang) who is the Principal of the Fairview

International School in Penang had confirmed that she was requested by the

Company management to mentor the Claimant in his role as Acting Principal, to help

him grasp the ropes and to share best practices. COW-1 was also required to keep

the management updated to the Claimant’s progress. There were weekly meetings

between COW-2 and the Claimant when the mentoring started, some of which were

also attended by COW-1. In these meetings, COW-2 would enquire as to how the

Claimant was doing, what areas he required help in, and share how COW-2 deal

with the situations and the best practices in every aspect. The Claimant would

usually share with COW-2 the situations he was facing and seek COW-2’s advice as

to how to deal with these situations. They also discussed strategies to increase

enrolment, and tips on how to run the school and manage parent expectations.

COW-2 shared her plan with her marketing teams and shared strategies with the

Claimant to increase enrolment.

59. Evidence of report on mentoring sessions by COW-2 (at pages 9-11 of COB-

1) was prepared for the management. This report set out the details of the

mentoring meetings with the Claimant as well as COW-2’s expectation and respond.

In the said report, COW-2 summarized that at the time the Claimant had joined the

school for a few months, COW-2 felt that the Claimant had the potential and was

open to ideas and discussion. However, COW-2 was of the opinion that the

Claimant’s knowledge of IB and Fairview working culture was lacking and he needed

to learn up about the IB methodology of learning as well as take more effort to adapt

to Fairview’s working culture. The Claimant also needs to work together with his

support staff and marketing team effectively, as well as share his ideas and thoughts

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actively with management, especially with regards to enrolment of students. COW-2

did continue to mentor the Claimant after prepared this report for another two (2)

months until end of November 2021 to ensure the Claimant was given the necessary

support to improve his performance.

60. As such, not only was the Claimant appointed to a senior managerial role,

but he was also consistently guided and mentored towards achieving his KPIs and

tasks. However, despite the mentoring and assistance, it was found that the

Claimant’s performance was not up to par when an Interim Performance Review (at

page 109 of COB-1) was carried out in September 2021 by COW-2 in which also

took into account the feedback from COW-2 (at pages 9-11 of COB-1) after several

mentoring sessions. As a result, the Company issued a letter to the Claimant

informing him of the areas where improvement was required.

61. On final analysis, the contract of employment clearly set out the Claimant’s

duties and the Company’s expectations of him in accordance to Clause 4 of the

contract (at pages 101-102 of COB-1). The Claimant was given continuous

mentoring and advice throughout his Performance Review Period in order to assist

him in his duties and meet the KPIs and he was advised of his shortcomings upon

the Interim Performance Review which was carried out in September 2021.

However, the Claimant failed to improve and to achieve the KPIs set for him by the

end of the six (6) months of Performance Review Period. On the facts, there is no

evidence of mala fide on the part of the Company in not confirming the Claimant's

employment with the Company.

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62. The Company was fully justified and entitled to terminate the Claimant at the

end of the performance review period when the Claimant was found to be unsuitable

for the position as he also failed to show any tangible improvement despite being

given sufficient opportunity to do so. This was a matter within the Company’s

prerogative and the Company made this decision in manner which was honest, fair,

bona fide and not capriciously nor arbitrarily.

63. The Court lean in support of Robert John Reeves v. Menteri Sumber

Manusia, Malaysia & Anor [2000] 1 CLJ 180; [2000] 1 MLJ 107, which asserted

that the power to either continue or discontinue the services of an employee or

probationer rested with the employer. The learned judge, Faiza Tamby Chik J held

as follows:

"At the end of the applicant's probationary period, it was open to the
second respondent to either continue or discontinue the services of the
applicant. The applicant, by virtue of being a probationer, had no say in
the matter and the second respondent, as the employer, was fully
entitled to terminate his services upon their evaluation that he did not
perform his job functions satisfactorily. The first respondent correctly
recognized that it was the second respondent's prerogative as an
employer to assess and determine the standard of performance of the
applicant vis-a-vis the expected level of performance by the second
respondent."

Conclusion:

64. As a probationer, the Claimant’s continued employment with the Company

beyond the contract review period is a matter for the Company to determine upon

Page 29 of 31
assessing his suitability and fitness for the position in the Company. Because the

Claimant on probation holds no lien to the post, is subject to confirmation and has to

proof himself in terms of efficient and satisfactory work performance, the real test

should therefore be whether he 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. Further, in the

case of a person occupying a senior post in the school, the need for prior warning

and opportunity for improvement is less apparent compared to a junior employee.

65. On the basis of all matters set out above, the Court finds that the Company

had exercised its prerogative to assess and determine how the Claimant performed

in comparison to its expectations reasonably (not capriciously or arbitrarily) without

any mala fide intent. How an employee is 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.

66. In Ahmad Sivakumar Abdullah v. Aspen Glove Sdn. Bhd. [2023] 2 LNS

0217, it was held that:

“The Court finds that the Company had exercised its prerogative to
assess and determine how the Claimant performed in comparison to its
expectations reasonably (not capriciously or arbitrarily) without
any mala fide intent. How an employee is 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.”

Page 30 of 31
67. It is this Court's profound finding that the decision to not confirm the Claimant

in his permanent employment was not tainted by any mala fide. The Company

simply had no choice but to dismiss the Claimant on the ground non-confirmation

due to his unsatisfactory and poor performance and this Court will not interfere with

that decision.

68. Based on the circumstances of the present case in its entirety and the

evidence adduced by both parties 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 discharged its burden on the balance of

probabilities to prove that the Claimant's dismissal was carried out with just cause

and excuse and within fair labour practices.

69. In the upshot, having decided that the Claimant's termination was with just

cause or excuse; this Court bearing in mind the provision in Section 30(5) of the

Industrial Relations Act 1967 by which virtue the Court shall act according to

equity, good conscience and the substantial merit of the case without regard to

technicalities and legal form, has no hesitation in dismissing the Claimant's case.

70. Accordingly, the Claimant's claim is hereby dismissed.

THIS AWARD HANDED DOWN AND DATED 10TH. JULY 2023

Signed

(ZULHELMY BIN HASAN)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
AT IPOH, PERAK

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