IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO: 9/4-688/12

BETWEEN
TANABALAN A/L SUBRAMANIAM
AND
ECONICHE SERVICES SDN. BHD.

AWARD NO: 469 OF 2016

Before

Y.A.DATO' HAJI SULAIMAN BIN ISMAIL

CHAIRMAN

Venue

INDUSTRIAL COURT OF MALAYSIA,

PENANG BRANCH

Date of Reference :

23rd APRIL 2012

Dates of Mention :

25th JUNE 2012, 25th JULY 2012, 29th AUGUST 2012,

19th SEPTEMBER 2012, 19th OCTOBER 2012 &
26th NOVEMBER 2012

Dates of Hearing

4th 5th DECEMBER 2014

Representation

Mr. Vijayan Veeriah, representative from Malaysian Trades

Union Congress for the Claimant
Ms. Melissa Wong Mei Wei, learned counsel from Messrs
Ong & Manecksha for the Respondent

Reference

The reference under Section 20(3) of the Industrial Relations Act 1967 by the
Honourable Minister of Human Resources Malaysia, is regarding the dismissal of
Tanabalan a/l Subramaniam (the Claimant) by Econiche Services Sdn. Bhd.
(Respondent) on 17th March 2009.

AWARD
This is a reference by the Honourable Minister of Human Resources under
Section 20(3) of the Industrial Relations Act 1967 dated 23rd April 2012 arising
out of dismissal of Tanabalan a/l Subramaniam (hereinafter referred to as the
Claimant) on 17th March 2009 by Econiche Services Sdn. Bhd. (hereinafter
referred to as Respondent). The reference was received by the Industrial Court
on 10th May 2012.

Introduction
The Claimant commenced employment in the Respondent as Site
Manager on 12th January 2009. His last drawn salary was RM5,500.00 plus
housing allowances of RM350.00 per month and totaling to an approximate
grand total of RM5850.00 per month.

The Claimant placed of working was at First Solar Factory, Kulim,

Kedah. At the time of dismissal, the Claimant still under probation. The Claimant
was dismissed on 17th March 2009.

The Claimant states that there was no reason of misconduct being

informed by the Respondent. The reason stated in the letter dated 17th March
2009 was Service No Longer Required (Refer CLB page 5). The Claimants
Statement Of Case paragraph 9 (a) (f) are referred. The Claimant prays for
reinstatement to his former position without loss in salary and other benefit and
or other relief as the Court deemed fit.
The Respondent states that he Claimant had on 2nd January 2009
applied for the post of a Manager and his application was allowed and the
Claimant started work on 9th January 2009. In COB Tab A. The Claimant

demanded to work as a Site Manager but the Respondent avers that the
Claimant was paid a sum of RM5,000.00 per month and housing allowances of
RM350.00 per month. The Respondent avers that the Claimant was on a
probationary period of 3 months and the Claimant was dismissed on 17th March
2009 for serious misconducts. The Respondent avers that the Claimant failed
and refused to provide weekly reports to the Maintenance Director despite
numerous demands for such weekly report throughout his employment. The
Claimant failed to coordinate his subordinates and had infused dissatisfaction
amongst the workers.

This resulted in vast resignation of employees of the

Respondent and caused the Respondent to provide less worker to their clients in
providing cleaning services. As a result, the Respondent had to employ more
employees to meet the demands of its clients. The Respondent further avers that
the Claimant had committed serious misconducts when he promised his
subordinates to raise their pay when no such mandate was given to the
Respondent. Therefore, the Claimant had breached his terms and conditions of
employment which lead to his dismissal. The Claimant also failed and refused to
bring the attention of the Respondent of Purchase Orders issued by the
Respondents client and this had caused serious losses to the Respondent. The
Respondent had suffered losses from January to March 2009. By end of March,
the Respondent suffered a loss sum of RM28,482.00. The Respondents
Statement In Reply are referred. The Respondent denied each and every
allegation of the Claimant in the Statement Of Case as though the same were
herein set forth and traversed seriation and also avers that the termination of the
Claimant was with just cause and excuse and the Respondent prays that the
action by the Claimant be dismissed with costs.

The Issue
The issue that merit consideration in this case are :

1. Whether Claimant's poor performance as alleged by the Respondent

has been established;

2. Whether the proven poor performance constitutes just cause or excuse

for the dismissal.

The Law
The function of the Industrial Court is clearly enunciated in the case
of Goon Kwee Phoy v J & P Coats (M) Bhd (1981) 1 LNS 30 where Raja
Azlan Shah CJ (Malaya) speaking for Federal Court ruled at page 13.
Where representations are made and are referred to the
Industrial Court for inquiry 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
Industrial Court will be inquire 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 High Court cannot go into another reason not relied on
by the employer or find one for it.

The role of Industrial Court is succinctly explained in the case of

MILAN AUTO SDN BHD V WONG SEH YEN (1995) 4 CLJ 499 at page 455
where the Federal Court decided as follows :
"As pointed out by this Court recently in Hong Leong Assurance
Sdn Bhd v Wong Yuen Hock (1995) 3 CLJ 344 the function of the Industrial
Court in dismissal cases on a reference under section 20 is two folds; 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."

The Federal Court in the case of Wong Yuen Hock v Syarikat

Hong Leong Assurance Sdn. Bhd. & Another Appeal (1995) 3 CLJ 344 at
page 352 decided inter alia,
On the authorities, we were of the view that the main and only
function of the Industrial Court in dealing with a reference under Section 20 of
the Act (unless otherwise lawfully provided by the terms of reference) is to
determine whether the misconduct or irregularities complained of by the
Management as the grounds for dismissal were in fact committed by the
workman, and if so, whether such grounds constitute just cause or excuse for
the dismissal.

As a Court of arbitration I am reminded that Section 30(5) of the

Industrial Relations Act 1967 (Act 177) requires the Court to decide a case in
accordance with equity and good conscience. In doing so, I am guided by Gopal
Sri Ram JCA's decision in Harris Solid States (M) Sdn. Bhd. & Ors v Bruno
Gentil Pereire & Ors (1996) 4 CLJ 747 CA that it is incumbent upon the Court to
have regard to substantial merits of the case rather than to technicalities.

The foregoing view is in consonance with the views expressed in

Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn. Bhd. & Anor
Appeal (1995) 3 CLJ 344.
Thus where there was a breach of a contractual or statutory
obligation to hold on inquiry, the Industrial Court should proceed to determine
on the merits first, whether the misconduct complained of was in fact
committed by the employees and secondly whether the nature and extent of
the misconduct could constitute just cause or excuse for the dismissal.

Standard of Proof
It is a principle of Industrial Relations Jurisprudence that in a
dismissal case, the employer must produce convincing and cogent evidence that
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the workman committed the misconduct the workman is alleged to have

committed for which he has been dismissed. The burden of proof lies on the
employer, the Respondent's Company in the instant case. Thus it is incumbent
on the Respondent to prove their case on a balance of probabilities and to
adduce evidence that the Claimant's dismissal was for just cause or excuse. See
Telekom Malaysia Kawasan Utara v Krishnan Kutty Sanguni Nair v Anor
(2002) 3 CLJ 314.

Abdul Hamid JCA further at page 324 made reference to the

Indian Supreme Court decision in Management of Balipara Tea Estate v Its
Workman (AIR) 1960 Supreme Court 191 in which the Court held:
In making an award in an Industrial dispute referred to it the
tribunal has not to decide for itself whether the charge framed against the
workman

concerned

(in

this

case

falsification

of

accounts

and

misappropriation of funds) has been established to its satisfaction it has only

to be satisfied that the Management of a business concern was justified in
coming to the conclusion that the charge against the workman was well
founded.

The tribunal misdirects itself in so far as it insist upon conclusive

proof that of guilt to be adduced by the Management in the inquiry before it. It is
well settled that a tribunal has to find only whether there is justification for the
Management to dismiss an employee and whether a case of misconduct has
been made out at the inquiry held by it.

Respondents Evidence
COW1 the Respondents Director testified that the reason of
dismissal not stated in a letter of dismissal dated 17th March 2009. In his opinion
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there was no need to state the reasons for termination as they had been
previously communicated to him and he was well aware of them. He also did not
wish to jeopardize the Claimant future career prospects.

In her witness statement COWS-1, COW1 stated that the reason for
Claimants termination due to poor performance and misconduct. COW1 also
admitted in her evidence that the Claimant was dismissed based on the terms of
letter of appointment. The Company had pleaded the following reasons for the
Claimants termination
a)

reshuffled workers at his own whim and fancy and without prior notice

b)

failed to interview new workers

c)

caused financial losses to the Company

d)

The Claimant failed to provide weekly reports to the Maintenance Director

e)

The Claimant failed to coordinated his subordinates and had infused

dissatisfactory amongst the workers which resulted in vast resignation of the

employee of the Company.

The Claimant was still in probation and the Company submits that
towards the end of the probationary period it was clear that the Claimant was a
liability and threat to the Companys operation and then the Company saw it fit to
terminate the services of the Claimant.

The learned counsel of the Company made reference to the case of

Palette Multimedia Bhd. / Palette Computer Sdn. Bhd. v Ang Lai Lian Award
No. 2009 of 2008. Finally the Company submitted that the Claimants dismissal
is with just cause or excuse.

The Claimants Evidence

The Claimant testified that he was recruited to a Site Manager and
had served three months probation period with effect from 12th January 2009.
The Claimant starting salary of RM5,350.00 per month.

The Claimant was employed as a Site Manager and was in charge

of overall operation of the Company.

He had performed his job diligently to his best ability and there was
no warning letter ever issued to him.
The Claimant was dismissed by the Company with effect from 17th
March 2009 by granted him compensation of one month basic salary without
stated any reason of termination.

There was no performance appraisal and evaluation conducted for

the Claimants performance ad he was dismissed before the expiry of his
probational period.

His counsel submitted that his dismissal was without just cause or
excuse and pray for the reinstatement to his formal position without the loss of
the seniority.

Evaluation And Findings

The evaluation and findings of this Court is based on the evidence
adduced by the Claimant and the Respondents Company witness.

This Court has to make findings of facts premised on the evidence

available as to whether the Company had proved poor performance against the
Claimant by the Respondents Company on the balance of probability.
The Claimants services with the Respondent company was
terminated on 17th March 2009 as stated in a dismissal letter. There was no
reason given by company for such dismissal. The question for this Court
determination now is whether the Claimant was dismissed with just cause or
excuse.

In the case of Fakhir Abdul Jalil Pakir Mohamed v Shell Refinery

Co Bhd (Award No. 20 of 1974) the Court held :
The appointment of a person on probation is therefore tentative
and dependent on the employers satisfaction as to his suitability.

In the case of Linda Lui Chooi Kim v MSCO Travel Sdn. Bhd
(2013) 4 ILR 709, the Court held:
It is well settled law that at the end of the probationary period, it is
opened to the employer to continue the employee service or not in its
discretion.

However this discretion must be exercised bona fide by the

Company. As long as the employer is reasonably satisfied that the employee is
not suitable for the job, he may be removed.

Suitability is not just based upon performance of the employee but

also on his conduct, behavior, aptitude and attitude in relations to the job he is
employed.

The best person to judge the probationer on his requisites will surely
be the employer.

In the case of KC Mathew vs Kumpulan Guthrie Sdn. Bhd. (1981)

CLJ 40 the Federal Court held on employee under probation remain a
probationer even after the expiry of the probation period if he is neither
terminated or confirmed.

Lord Denning MR in the case of Alidair Ltd vs Taylor (1978) ILR

445 held:
Whenever a man is dismissed for in capacity or incompetence it
is sufficient that the employer honestly believes an reasonable ground that the
man is incapable and incompetent. It is not necessary for the employer to
prove that he is in fact incapable or incompetent.

In this case, it is the findings of this Court that COW1, the Director of
the Company has reasonably believe that the Claimant was incompetent and
incapable to discharge his duties as Site Manager.

She has given various reasons and she disappointed with the
Claimants performance.

The Claimant failed to discharge his duties entrusted upon him.

On the totality of the evidence and based on the factual matrix and
circumstances of this case, it is the finding of this Court that the Respondent had
succeeded in proving the case on balance of probability that the Claimant had
not discharged his duties entrusted upon him as expected by the employer.

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The Claimant was incompetent in doing his job as far as the

Companys is concerned.

Conclusion
Based on the totality of evidence, Written Submission of both parties
and bearing in mind Section 30(5) of the Industrial Relations Act 1967 to act
accordingly to equity and good conscience and substantial merit of this case, it is
the Court findings that the Claimants dismissal was with just cause or excuse.
This Court is of the considered views that the Respondent comply has proved on
a balance of probabilities that the Claimants termination was reasonable and
justified. The Court finds that the Claimants termination was carried out with just
cause or excuse.

The Claim is hereby dismissed.

HANDED DOWN AND DATED THIS 20th DAY OF APRIL 2016.

(DATO' HAJI SULAIMAN BIN ISMAIL)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
PENANG BRANCH

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