Jamilah Abdul Hask

434 v. Selangor Coast Club Klang [2015] 3 MELR

JAMILAH ABDUL HASK

v.
SELANGOR COAST CLUB KLANG

Industrial Court, Kuala Lumpur

Sarojini Kandasamy
Award No: 875 of 2015 [Case No: 4/4-627/13]
14 July 2015

Dismissal: Misconduct — Habitual lateness and absence without approval — No

domestic inquiry prior to claimant’s dismissal — Whether fatal to company’s case
— Employee on probation — Whether accorded with same status, rights or privileges
as permanent/confirmed employee — Whether deduction of salary for lateness and
absenteeism compensated company for all inconveniences caused — Whether claimant
still a probationer — Whether dismissal with just cause or excuse

The company employed the claimant as a Bartender and she was placed on
probation of three months duration, subject to an extension of probation of
one month at the company’s discretion. The company subsequently dismissed
the claimant without confirming the claimant. Although the company found
the claimant’s job performance acceptable, the company could not tolerate
the claimant’s habit of reporting late for work and being absent without prior
notice/approval. Initially the company discussed, advised and counselled the
claimant to report for work on time. When there was no change, the company
gave her verbal warnings and then written warnings were issued. The company
offered a change of working hours but the claimant declined it. The company
extended her probation period progressively beyond the four month period
to monitor changes and/or improvement in her work attitude. The company
alleged that despite the many opportunities given to change her work attitude,
the claimant failed to do so. The company was completely dissatisfied with
the claimant’s work attitude and subsequently dismissed the claimant. The
claimant, on the other hand, contended that her dismissal was an unfair labour
practice that ought to be struck down as such by the court.

Held:

(1) Although a domestic inquiry was not held prior to the claimant’s dismissal,
the court takes the approach that this hearing was a fresh hearing and any
procedural defect in natural justice in not giving sufficient opportunity to the
claimant to be heard in a domestic inquiry was not fatal, and could be cured by
the hearing in the Industrial Court. (para 23)

(2) An employee on probation cannot expect to be accorded with the same

status, rights or privileges as a permanent/confirmed employee. The correct
test to be applied in relation to the decision of an employer to dismiss a
probationary employee is that the decision must be bona fide and not one that is
 Jamilah Abdul Hask
[2015] 3 MELR v. Selangor Coast Club Klang 435

capricious or arbitrary. The bona fide test also equally applies for any extension
of a probationary period if genuinely warranted by circumstances of the case.
(para 30)
(3) The deduction of salary for each episode of lateness and absenteeism did
not compensate the company for all the inconveniences caused, namely the
intangible difficulties/problems such as not being pre-informed and unsure as
to whether the claimant was reporting for work, to find someone to take over
the claimants’ duties at the eleventh hour, and the blatant disregard by the
claimant of the trust and confidence that the company has reposed upon her
to carry out her duties efficiently, promptly and in a disciplined manner. Being
a single mother and the lack of transport should not have been abused by her
to repeatedly claim sympathy from the company who had bent backwards to
counsel and advice her to mend her bad habits. Having undisciplined staff
adds extra baggage that no company wants to carry with it, no matter that her
lateness and absenteeism was compensated with salary cuts. (para 41)
(4) Since the claimant was still in the employment of the company although
the four months period of probation had surpassed, she was considered as still
being under probation until the company issued to her a letter of confirmation.
(para 43)
(5) The company had repeatedly through verbal and written warnings warned
the claimant regarding her habitual lateness and absenteeism and the company
viewed it as serious misconduct, to the extent that it informed her that it is
at its option to terminate her services with the company. The claimant was
aware that her habitual lateness and absenteeism was a serious problem with
the company. She had promised to change but to no avail, although ample
opportunity was given to her. (para 50)
(6) The company had bona fide exercised its powers to assess the claimant’s
overall performance. Upon the company’s overall evaluation, it was found
that the claimant was unable to perform her job functions satisfactorily, as she
was habitually late for work and absent without prior notice/approval. These
did constitute serious acts of misconduct for which the company dismissed
the claimant. The claimant had indeed been given a fair opportunity to prove
herself and measure up to the company’s expectations, but she failed to avail
herself of the opportunity. The probation period had been extended but the
claimant failed to show improvement. Therefore, this court found on a balance
of probabilities that the claimant’s dismissal was with just cause or excuse.
Accordingly the claimant’s case was dismissed. (paras 56-57)
[Just dismissal.]

Case(s) referred to:

Abdul Majid Hj Nazardin & Ors v. Paari Perumal [2002] 1 MELR 1; [2002] 1 MLRA
153 (refd)
Dorsett Regency Hotel (M) Sdn Bhd v. Andrew Jayadass James Ambrose [2003] 2
MELR 66 (refd)
 Jamilah Abdul Hask
436 v. Selangor Coast Club Klang [2015] 3 MELR

Dreamland Corp (M) Sdn Bhd v. Choong Chin Sooi & Industrial Court Of Malaysia
[1987] 1 MELR 39; [1987] 1 MLRA 357 (refd)
Equatorial Timber Moulding Sdn Bhd, Kuching v. John Michael Crosskey, Kuching
[1986] 2 MELR 160 (refd)
Express Newspapers Ltd v. Labour Court & Anor [1964] AIR SC 806 (refd)
Goon Kwee Phoy v. J&P Coats (M) Bhd [1981] 1 MLRA 415 (refd)
Hartalega Sdn Bhd v. Shamsul Hisham Mohd Aini [2004] 3 MELR 827; [2004] 1
MLRH 208 (refd)
Ireka Construction Berhad v. Chantiravathan a/l Subramaniam James [1995] 1
MELR 373 (refd)
KC Mathews v. Kumpulan Guthrie Sdn Bhd [1981] 1 MELR 1; [1981] 1 MLRA 77
(refd)
Khaliah Abbas v. Pesaka Capital Corporation Sdn Bhd [1996] 1 MELR 315; [1996] 2
MLRA 654 (refd)
Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 2 MLRA 23 (refd)
R Rama Chandran v. Industrial Court Of Malaysia & Anor [1996] 1 MELR 71; [1996]
1 MLRA 725 (refd)
Sitt Tatt Bhd v. Ong Chee Meng [2004] 2 MELR 13 (refd)
Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 1
MELR 4; [2002] 1 MLRA 188 (refd)
Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal
[1995] 1 MLRA 412 (refd)

Legislation referred to:

Industrial Relations Act 1967, ss 20(3), 30(5)

Other(s) referred to:

BR Ghaiye, “Misconduct in Employment”, p 65
OP Malhotra, “The Law of Industrial Disputes”, 6th edn, vol 1, pp 304, 307 & 441

Counsel:
For the claimant: Matdiah Mohammad; Malaysian Trades Union Congress (MTUC)
For the company: SR Raman; M/s Raman & Co

AWARD
Sarojini Kandasamy:
The Reference
[1] The parties to the dispute are Jamilah Abdul Hask (“claimant”) and
Selangor Coast Club Klang (“company”). The dispute which was referred to
the Industrial Court by way of a Ministerial Reference under s 20(3) of the
Industrial Relations Act 1967 made on 7 March 2013 is over the dismissal of
the claimant by the company on 19 January 2012.
 Jamilah Abdul Hask
[2015] 3 MELR v. Selangor Coast Club Klang 437

Brief Facts

[2] The company is a social club, managed by mandate of an elected committee.

The company’s President, two Vice-Presidents and members who comprise
the General Committee of the company are all elected. The company’s day-
to-day management and other administration are taken care of by a General
Manager/Manager, who is employed by the company.

[3] The company employed the claimant as a Bartender on 1 May 2011 and she
was placed on probation of three months’ duration, subject to an extension of
probation of one month at the company’s discretion. The company dismissed
the claimant without confirming her on 19 January 2012. Her last drawn salary
was RM1,000.00 per month.

Documents

[4] For the hearing of the dispute, documents from the respective parties were
marked as follows:

(a) Statement of case dated 31 May 2013;

(b) Statement in reply dated 10 September 2013;

(c) Company’s bundle of documents marked “COB1’’;

(d) Company’s supplementary bundle of documents marked

“COB2’’;

(e) Claimant’s bundle of documents marked “CLB’’;

(f) Company’s witness statement by Mr Teoh Boon Sim marked

“COWS1’’;

(g) Claimant’s witness statement by Mr Velu Sinnasamy marked

“CLWS1’’;

(h) Claimant’s supplementary witness statement by Mr Velu

Sinnasamy marked “CLWS1A’’; and

(i) Claimant’s witness statement by Madam Jamilah Abdul Hask

marked “CLWS2’’.

[5] The witnesses who have testified before this court are:

(a) Mr Teoh Boon Sim, Pengerusi Staff (COW1);

(b) Mr Velu Sinnasamy, General Manager/Manager of company

(CLW1); and

(c) Madam Jamilah Abdul Hask (CLW2).

 Jamilah Abdul Hask
438 v. Selangor Coast Club Klang [2015] 3 MELR

The Company’s Case

[6] The company employed the claimant as a Bartender on 1 May 2011.

Pursuant to the letter of appointment (“appointment order”) dated 29 April
2011, the claimant’s employment in the company was subject to the completion
of a probation period of three months with an extension of one month at the
company’s discretion.

[7] Though the company found the claimant’s job performance was acceptable,
the company could not tolerate the claimant’s habit of reporting late for work
and being absent without prior notice/approval. Hardly a few days into the
employment, the claimant reported late for work.

[8] Initially the company discussed, advised and counselled the claimant to
report for work on time. The company found the claimant’s performance
acceptable and did not intend to waste a talent, and thus attempted to correct
the claimant’s work attitude progressively. When there was no change, the
company gave her verbal warnings and then written warnings were issued. The
company offered a change of working hours but the claimant declined it. The
company extended her probation period progressively beyond the four-month
period to monitor changes and/or improvement in her work attitude.

[9] Despite the many opportunities given to change her work attitude, the
claimant failed to do so. The company was completely dissatisfied with the
claimant’s work attitude and dismissed the claimant vide letter dated 12 January
2012 with effect from 19 January 2012.

The Claimant’s Case

[10] The claimant (CLW2) joined the company as a Bartender on 1 May 2011
and was placed on probation for three months, subject to one month extension
at the company’s discretion.

[11] On 28 May 2011, the claimant was served a “surat amaran pertama”
(COB1 p 5) (“first warning letter”) signed by CLW1 who was the General
Manager/Manager of the company. It alleged that she was late for work on
several occasions and she was reminded that she had to be at her work station
at least 15 minutes earlier than the scheduled time of work. Disciplinary
measures were implied in the letter.

[12] After the maximum stipulated probation period was exceeded, the claimant
received a “surat tunjuk sebab dan amaran terakhir” (COB1 p 7) (“second
warning letter”) dated 13 September 2011 and signed by Mr Lim Chong Tiam,
Pengerusi F&B, for allegedly being late for work every day although being given
the first warning letter. Additionally, it was alleged that she was absent without
prior notice/approval on 29 August 2011, 5 September 2011, 10 September
2011 and 11 September 2011. Although disciplinary measures were implied in
this letter, no mention whatsoever was made of her probation. The claimant
responded to the letter on 23 September 2011 (COB1 p 11).
 Jamilah Abdul Hask
[2015] 3 MELR v. Selangor Coast Club Klang 439

[13] On 3 November 2011, the claimant received a “surat amaran terakhir”

(COB1 p 8) (“third warning letter”) dated 31 October 2011 and signed by Mr
Lim Chong Tiam, Pengerusi F&B, who again alleged that she was late for work
every day despite the warning letters dated 28 May 2011 and 13 September
2011. As for the alleged absence, the dates specified in the earlier warning letter
dated 13 September 2011 (COB1 p 7) were repeated in this letter but with
three additional dates, namely 2 September 2011, 3 September 2011, and 4
September 2011.

[14] On 9 November 2011, the claimant received a “notis untuk menamatkan

kerja ‘Bartender’ (dalam percubaan)” (COB1 p 9) (“first termination notice”)
dated 9 November 2011 informing her that the company was terminating her
services in one week from the date of the letter. This letter was issued in the
name of COW1, whose designation was “Pengerusi Staff ”, but was signed by
CLW1.

[15] Notably, apart from the letter of appointment, this was the first letter that
implied that the claimant was still on probation at the material time. Moreover,
it did not even state the end of probation period if it was indeed extended.

[16] The claimant appealed and promised to change her habit of coming late
for work. The company was urged to consider the claimant’s status as a single
mother. The company decided to give one more opportunity to the claimant
and issued a warning letter instead.

[17] Five days later, on 14 November 2011, the claimant received a “surat
amaran terakhir” (COB1 p 10) (“fourth warning letter”) dated the same and
signed by CLW1. This letter was purportedly in compliance with directions
from “Jawatankuasa Pusat” (General Committee) for a final warning to be
administered to the claimant. Nothing was reflected in this letter about the
claimant’s probation, if it was indeed extended. This letter was signed by
CLW1.

[18] On 12 January 2012, the claimant received a “notis untuk menamatkan

kerja ‘Bartender’ (dalam percubaan) (“termination letter”) dated the same
wherein the claimant’s services in the company was terminated with effect
from 19 January 2012. Apparently, it was issued in the name of COW1 but
was signed by CLW1.

[19] The claimant contended that her dismissal was contrary to the principles of
natural justice, equity, and good conscience and was an unfair labour practice
that ought to be struck down as such by the court. The claimant humbly
prayed to this court to order for her reinstatement to her former position
with reimbursement of backwages and all other benefits, be it monetary or
otherwise, continuing up to the date of the award.
 Jamilah Abdul Hask
440 v. Selangor Coast Club Klang [2015] 3 MELR

The Law And Burden Of Proof

[20] The function of the Industrial Court has been propounded by Mohd Azmi
Kamaruddin FCJ in the Federal Court case of Milan Auto Sdn Bhd v. Wong Seh
Yen [1995] 2 MLRA 23 which is 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, the function of
the Industrial Court in dismissal cases on a reference under s 20 is two-fold:
first, 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 dismissal.”

[21] It is trite law that the company bears the burden to prove that the claimant
had committed the alleged misconduct and that the misconduct warrants
the claimant’s dismissal. In Ireka Construction Berhad v. Chantiravathan a/l
Subramaniam James [1995] 1 MELR 373 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.”

[22] The company needs only to prove misconduct justifying the dismissal or
termination on a balance of probabilities (see Telekom Malaysia Kawasan Utara
v. Krishnan Kutty Sanguni Nair & Anor [2002] 1 MELR 4; [2002] 1 MLRA 188).
Issues
[23] It was submitted by the claimant’s learned counsel that a domestic inquiry
was not held prior to the claimant’s dismissal. On this issue, the court in the
interest of equity and good conscience takes the approach that this hearing
is a fresh hearing and any procedural defect in natural justice in not giving
sufficient opportunity to the claimant to be heard in a domestic inquiry is not
fatal and could be cured by the hearing in the Industrial Court (see Dreamland
Corp (M) Sdn Bhd v. Choong Chin Sooi & Industrial Court Of Malaysia [1987] 1
MELR 39; [1987] 1 MLRA 357 and Wong Yuen Hock v. Syarikat Hong Leong
Assurance Sdn Bhd & Another Appeal [1995] 1 MLRA 412). The court will now
consider the totality of the evidence to determine on a balance of probabilities
whether the claimant was dismissed without just cause or excuse.
[24] Consequently, as the dismissal of the claimant by the company is
undisputed, this court will next proceed to consider the propriety of the
claimant’s termination, that is, it was for just cause or excuse. In this respect,
this court will proceed to deal with the following issues:
(a) Whether the misconduct complained of by the company was in
fact committed by the claimant?; and
 Jamilah Abdul Hask
[2015] 3 MELR v. Selangor Coast Club Klang 441

(b) If in the affirmative, whether the proven misconduct constituted

just cause or excuse for the claimant’s dismissal?

Evaluation Of Evidence And Findings Of Court

[25] As expounded in the case of Goon Kwee Phoy v. J&P Coats (M) Bhd [1981] 1
MLRA 415, the court is restricted in its inquiry into the veracity of the reason
chosen by an employer for the dismissal. Raja Azlan Shah CJM (as he then
was) speaking for the Federal Court ruled:
“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 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.”

[Emphasis Added]

[26] Since the claimant is a probationer it must be stated at the outset that
it is an entrenched rule of industrial jurisprudence that a probationer has no
substantive right of tenure to hold the position nor does he hold a lien upon the
post beyond the agreed contractual probationary period. Binding authority for
this can be traced in the case of Equatorial Timber Moulding Sdn Bhd, Kuching v.
John Michael Crosskey, Kuching [1986] 2 MELR 160 where the Industrial Court
stated the principles as follows:
“Such an employee has no substantive right to hold the post. He holds no
lien on the post. He is on trial to prove his fitness for the post for which he
offers his services. His character, suitability and capacity as an employee is to
be tested during the probationary period and his employment on probation
comes to an end if during or at the end of the probation period he is found
to be unsuitable and his employer can terminate his probation by virtue or
otherwise as provided in the terms of appointment. See the case of Chong Kim
Eng @ Yap Kim Eng v. Soclim Kemajuan Sdn Bhd [1980] 1 MELR 175 and also
PI Dhingra v. Union of India [1958] AIR SC 36). 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 …

… However, when the validity of such a termination is challenged, the court

must be satisfied that such termination was a bona fide exercise of the power
conferred by the contract. And where there is a suspicion of unfair labour
practice, then the court will not hesitate to interfere with the termination and
the employee should be afforded proper relief.”
 Jamilah Abdul Hask
442 v. Selangor Coast Club Klang [2015] 3 MELR

[27] In Khaliah Abbas v. Pesaka Capital Corporation Sdn Bhd [1996] 1 MELR 315;
[1996] 2 MLRA 654 at p 316, Shaik Daud JCA speaking for the Court of
Appeal held:
“It is our view that 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 fides is
essential in the dismissal of an employee on probation, but if the dismissal or
termination is found to be a colourable exercise of the power to dismiss or is a
result of discrimination or unfair labour practice, the Industrial Court has the
jurisdiction to interfere and to set aside such a dismissal.”

[28] In Dorsett Regency Hotel (M) Sdn Bhd v. Andrew Jayadass James Ambrose
[2003] 2 MELR 66, where the learned Chairman John Louis O'Hara (as His
Lordship then was) reflected on the passage (quoted above) from the case of
Khaliah Abbas v. Pesaka Capital Corporation Sdn Bhd (supra) with regards to a
reference under s 20 of the Industrial Relations Act 1967; and stated as follows:
“However Khaliah’s case does not expound the substantive law pertaining to
a probationer but relates to the specific question that if a probationer is to be
terminated, it should be within the general purview of s 20(3) of the Act in
that it should not be without just cause and excuse. Nevertheless this court
must be mindful that there is an intrinsic and material distinction between
employees under probation and confirmed permanent employees. In the case
of Vikay Technology Sdn Bhd v. Ang Eng Sew [1993] 1 MELR 412 the learned
Chairman referred to a passage in Malhotra’s book “The Law of Industrial
Disputes” (11th edn (sic) at p 224) which reads as follows:

“It is well settled law that at the end of the probationary period, it is open to
the employer to continue the employee in his service or not in his discretion,
otherwise the distinction between probationary employment and permanent
employment will be wiped out. Even if on the expiry of the probationary
period the work of the employee is satisfactory, it does not confer any
right on (him) to be confirmed.”

[Emphasis Added]

[29] At the High Court, Wan Afrah JC (as Her Ladyship then was) in Hartalega
Sdn Bhd v. Shamsul Hisham Mohd Aini [2004] 3 MELR 827; [2004] 1 MLRH
208 approved the interpretation of Khaliah Abbas v. Pesaka Capital Corporation
Sdn Bhd (supra) by the learned Chairman in Dorsett Regency Hotel (M) Sdn Bhd
v. Andrew Jayadass James Ambrose (supra). The court in Hartalega’s case further
held that:
“… There should be a distinction between a probationer and a confirmed
employee. Merely bringing the probationer within the ambit of s 20 of the Act
does not automatically imply that the probationer is elevated to the status of a
confirmed employee. This was not the intention of the legislature in enacting
s 20(3) of the Act …
 Jamilah Abdul Hask
[2015] 3 MELR v. Selangor Coast Club Klang 443

… Both parties had agreed that it was conditional for a probationer to perform
his functions to the satisfaction of his employer. Failure to do so would render
the probationer liable to be dismissed, save that such a decision must not be
capricious or arbitrary.”

[30] From the above authorities it is clear that an employee on probation cannot
expect to be accorded with the same status, rights or privileges as a permanent/
confirmed employee. The correct test to be applied in relation to the decision
of an employer to dismiss a probationary employee is that the decision must be
bona fide and not one that is capricious or arbitrary. The bona fide test also equally
applies for any extension of a probationary period if genuinely warranted by
circumstances of the case. In Sitt Tatt Bhd v. Ong Chee Meng [2004] 2 MELR 13
at p 16 the learned Chairman stated:
“In my view the company was fully entitled to terminate the claimant’s
service if upon their evaluation, the claimant was found to have been unable
to perform his job functions satisfactorily. How he is to be assessed and the
yardstick to be used to gauge his performance is best left to the company’s
prerogative and judgment so long as it is not tainted by mala fide intentions.
It could well be based on performance per se or upon a combination of
other variables and values such as suitability, aptitude, conduct, behaviour,
mannerism and so forth. Its categories are never exhaustive. After all it is well
settled that the company is entitled to organise its business in the manner it
considers best. It is the duty of the claimant to measure up to the company’s
expectation. All the more so as the claimant was still under probation.”

[31] The claimant was appointed as a Bartender vide the “appointment order”
dated 29 April 2011 wherein was stipulated the claimant’s terms and conditions
of appointment. The company’s learned counsel submitted that though the
claimant’s job performance was acceptable yet she was habitually late for work
and at times she was absent without prior notice/approval altogether. Thus
the company extended the claimant’s probation period to observe and monitor
any improvements in respect of the claimant’s issues relating to lateness and
absenteeism.

[32] CLW1 as the General Manager/Manager of the company was responsible

to undertake duties that included supervision of the performance of F&B Staff
and to check and supervise whether the punctuality, break time and overtime of
F&B Staff was followed strictly. He reported to the President, Vice-Presidents
and COW1.

[33] CLW1 in evidence stated that when he interviewed the claimant she
had informed him that she had a transport problem and would once in a way
(sesekali) be late for work. CLW1 stated that it was not a problem for the
company as the claimant could replace the lateness by working extra hours or
her salary would be cut accordingly. CLW1 also stated that the claimant could
take unpaid leave as she is not eligible for leave because she is on probation
and had less than one year service in the company. The company effected a
salary deduction for each alleged lateness and periods of absenteeism and had
 Jamilah Abdul Hask
444 v. Selangor Coast Club Klang [2015] 3 MELR

also marked the attendance card as unpaid leave in respect of the absenteeism.
The above conditions as agreed by CLW1 will hereinafter be referred to as
“said conditions”. However CLW1 admitted that the said conditions were not
written in the claimant’s appointment order. CLW1 stated that he got the verbal
approval of COW1 for the said conditions to be implemented in respect of the
appointment of the claimant. However COW1 in evidence did not confirm
that he had agreed to the appointment of the claimant being subject to the said
conditions.

[34] This in turn raises the question as to whether the appointment of the
claimant on the basis of the said conditions had been brought to the General
Committee of the company by CLW1 for its prior approval/sanction. Under
r 18(d) of the Rules, Regulations and Bye-Laws of the company (CLB p 26)
CLW1 cannot dismiss or engage any servants (including the claimant) without
the sanction of the company. In relation to this, under r 17(b) of the Rules,
Regulations and Bye-Laws of the company, the General Committee of the
company is responsible to appoint, engage and dismiss servants (including the
claimant) and to fix remuneration. Thus it is clear that based on the Rules,
Regulations and Bye-Laws of the company, the General Committee must
sanction the appointment of the claimant based on the said conditions. In
pursuance thereto, CLW1 failed to submit any cogent and objective evidence to
prove that he had obtained the sanction of the General Committee to appoint
the claimant based on the said conditions. Thus it is the finding of this court
that CLW1 had not followed the procedure set out in the Rules, Regulations
and Bye-Laws of the company, and proceeded on his own folly to appoint
the claimant and approve the said conditions that were not sanctioned by
the company. The court also finds that the said conditions are not within the
knowledge of the company and are thus not binding on the company.

[35] That the company was not aware of nor consented to the said conditions
was evidenced by the fact that the company had issued warning letters to
the claimant stating that despite verbal warnings and written warnings she
repeatedly came to work late and was absent without prior notice/approval.
The company in these letters stated that if she failed to improve the company
would consider its options including her dismissal. The claimant was aware that
her episodes of lateness and absenteeism were not tolerated by the company,
but yet she persisted in continuing with her old habits.

[36] Although the claimant during the job interview told CLW1 that she would
once in a way (sesekali) be late for work, this was not to be as almost every day
she was late for work, sometimes between 1 hour to 1½ hours. The claimant
admitted in evidence that she did not get prior approval of her superiors before
she took leave. She in fact took leave and informed CLW1 about the leave on
her return from leave. This clearly demonstrated that the claimant was not a
reliable and honest employee. The F&B section was left in the lurch as she
took leave without informing the F&B Chairman or any other personnel in the
company. In the court’s view she probably did this on the assumption that her
salary would be cut and thus she considered it as her right to do so. She did not
 Jamilah Abdul Hask
[2015] 3 MELR v. Selangor Coast Club Klang 445

care about the difficulties that she caused to the management, in particular the
F&B section, wherein service to the clients of the company was compromised,
and indirectly caused the image and reputation of the company amongst its
clientele to be affected.

[37] In evidence COW1 asserted that in dealing with the claimant’s problems
of being habitually late for work and at times absent without prior notice/
approval, the company advised and counselled her. This was followed by
verbal warnings and written warnings. COW1 stated that the claimant would
normally keep time for a few days after counselling or warning and then she
will revert back to her old habit of coming late or being absent without prior
notice/approval.

[38] The claimant’s learned counsel asserted that there was procedural
impropriety on the part of the company because the warning letters and notices
of termination were issued to claimant by several individuals and in different
capacities. COW1 in evidence stated that besides the General Manager/
Manager, letters can be signed by members of the General Committee who hold
specific portfolios, in this case Pengerusi F&B and Pengerusi Staff. COW1’s
evidence was not rebutted by the claimant’s learned counsel. As such this court
finds that there was no procedural impropriety. In fact the fourth warning letter
dated 14 November 2011 and termination letter dated 12 January 2012 was
issued in pursuance of directions from the General Committee in compliance
with r 18(d) of the Rules, Regulations and Bye-Laws of the company.

[39] The company had in the second and third warning letters dated 13 September
2011 and 31 October 2011, respectively, asserted that the claimant was
absent without prior notice/approval on 29 August 2011, 2 September 2011,
3 September 2011, 4 September 2011, 5 September 2011, 10 September 2011
and 11 September 2011.The claimant’s learned counsel alleged that based
on the copy of the claimant’s punch cards (COB2 p 20) the claimant was at
work on 29 August 2011 although this date was identified in the warning letter
as being one on which she was absent without prior notice/approval. Thus
based on this discrepancy, the claimant’s learned counsel submitted that the
probity of COB2 that contained copies of the claimant’s punch cards cannot
be established rendering the bundle suspect. The court was shown the original
punch cards of the claimant during the hearing. In regards to the claimant’s
alleged absence on 29 August 2011, counsel for the company explained that
the company had set a procedure by which punch cards are to be punched
so as to facilitate payment or deduction of salary and payment of overtime
for staff for that month concerned. All the staff, including the claimant, were
familiar with the procedure. Based on the explanation, the court is satisfied
that the claimant was indeed absent for work on 29 August 2011 as well as
all the other days identified in the second and third warning letters. The
claimant’s absence on 29 August 2011 was corroborated by the fact that the
claimant had acknowledged her absence on 29 August 2011 in her letter dated
23 November 2011 wherein she explained her absence as being due to the Hari
 Jamilah Abdul Hask
446 v. Selangor Coast Club Klang [2015] 3 MELR

Raya celebrations. CLW1 in his witness statement stated that he received the
claimant’s application for leave on 29 August 2011, albeit late, and allowed her
to take unpaid leave.

[40] The claimant’s learned counsel submitted that the company had condoned
and accepted the claimant’s lateness or absenteeism and did not suffer any
loss as deductions were made to the claimant’s salary to recover dues in every
case of lateness or absenteeism. On the issue of condonation, the court finds
that this matter was never pleaded by the claimant at all and from the notes
of proceedings it was apparent that during the hearing COW1 had not been
cross-examined on this issue. On this ground alone, the court disregards this
submission as this matter was not subject to cross-examination during the
hearing. The Federal Court in the case of R Rama Chandran v. Industrial Court
Of Malaysia & Anor [1996] 1 MELR 71; [1996] 1 MLRA 725 was cited to
support the contention that it is trite law that a party is bound by its pleadings.

[41] The court opines that the deduction of salary for each episode of lateness
and absenteeism does not compensate the company for all the inconveniences
caused, namely the intangible difficulties/problems such as not being pre-
informed and unsure as to whether the claimant is reporting for work, to
find someone to take over the claimants duties at the eleventh hour, and the
blatant disregard by the claimant of the trust and confidence that the company
has reposed upon her to carry out her duties efficiently, promptly and in a
disciplined manner. Being a single mother and the lack of transport should
not be abused by her to repeatedly claim sympathy from the company who
had bent backwards to counsel and advice her to mend her bad habits. Being a
company that is running a profitable business, the staff is the backbone of the
company and plays an important role to fulfil the rigorous demands placed on
the company by its clientele. Having undisciplined staff adds extra baggage that
no company wants to carry with it, no matter that her lateness and absenteeism
is compensated with salary cuts.

[42] In the claimant’s appointment order her period of probation provided as

follows:
“PROBATION

You will be on probation for a period of three months subject to one month
extension at the discretion of the Club Management. Your confirmation will
be dependent upon your job related knowledge, skills, attitudes and medical
evaluation report. Upon successful completion of the probation period,
your employment shall be confirmed in writing.”

[Emphasis Added]

[43] Thus it is clear that although her probation period is four months, yet she
will be only considered as confirmed in her position when the company issued
to her a letter of confirmation. Since she was still in the employment of the
company although the four months’ period of probation had surpassed, she
 Jamilah Abdul Hask
[2015] 3 MELR v. Selangor Coast Club Klang 447

was considered as still being under probation until the company issued to her
a letter of confirmation. This is found support in the case of KC Mathews v.
Kumpulan Guthrie Sdn Bhd [1981] 1 MELR 1; [1981] 1 MLRA 77, where Raja
Azlan Shah CJM (as he then was) quoted with approval the following passage
from the judgment of Das Gupta J in Express Newspapers Ltd v. Labour Court &
Anor [1964] AIR SC 806:
“There can, in our opinion, be no doubt about the position in law that an
employee appointed on probation for six months continues as a probationer
even after the period of six months if at the end of the period his service
had either not been terminated or he is confirmed. It appears clear to us that
without anything more an appointment on probation for six months gives the
employer no right to terminate the service of an employee before six months
had expired - except on the ground of misconduct or other sufficient reasons
in which case even the services of a permanent employee could be terminated.
At the end of the six months period the employer can either confirm him
or terminate his services, because his service is found unsatisfactory. If no
action is taken by the employer either by way of confirmation or by way of
termination, the employee continues to be in service as a probationer.”

[44] At the same time, OP Malhotra in his text “The Law of Industrial Disputes”
vol 1, 6th edn at pp 304 and 441 stated as follows:
“… It is also clear that when the first appointment is on probation for a specific
period and the employee in allowed to continue in the post after the expiry
of that period, without any specific order of confirmation, he continues in
his post as a probationer only and acquires no substantive right to hold the
post in the absence of any indication to the contrary, in the original order
of appointment or promotion or the service rules. When, therefore, after
the period of probation, an appointee is allowed to continue in the post,
without an order of confirmation, the only possible view to take is that by
implication, the period of probation has been extended. The fact that an
appointee is allowed to continue after the end of the period of probation,
cannot lead to the conclusion that he should be deemed to have been
confirmed. An express order of confirmation is necessary to give the employee
a substantive right to the post, and from the mere fact that he is allowed to
continue in the post after the expiry of the specified period of probation, it is
not possible to hold that he should be deemed to have been confirmed. The
reason for this is that where, on the completion of the specified period of
probation, the employee is allowed to continue in the post without any order
of confirmation, the only possible view to take, in the absence of anything
to the contrary in the original order, appointment, promotion or the service
rules, is that the initial period of probation has been extended, by necessary
implication. In other words, there is no automatic termination of the service
as soon as the probation expires, because that can be done only by a specific
order to that effect.”

In High Court of Madya Pradesh v. SN Jhavar [2001] 4 LLN 1248, 1253, the
Supreme Court classified the cases falling within the ambit of a “deemed
confirmation” under three heads, and observed:
 Jamilah Abdul Hask
448 v. Selangor Coast Club Klang [2015] 3 MELR

… The last line of cases is where, though under the rules, the maximum
period of probation is prescribed, the same also require a specific act on
the part of the employer, of issuing an order of confirmation and the
probationer’s passing a test for the purpose of confirmation. In such cases,
even if the maximum period of probation has expired and neither any order
of confirmation has been passed, nor the person concerned has passed
the requisite test, he cannot be deemed to have been confirmed, merely
because the said period has expired …”

[Emphasis added]

[45] The claimant’s learned counsel in his submission stressed that the
claimant was not informed that her probation was unsuccessful and/or that it
was formally extended as stipulated in the appointment order dated 29 April
2011. Notably, if her probation was unsatisfactory, the company was obligated
to inform her officially of such decision. On the contrary, COW1 stated in
evidence that the claimant was informed verbally that she was on probation
and the reasons for her non-confirmation. This is supported by the claimant
who in evidence stated that she had inquired about her status from CLW1 who
informed her that she was still on probation and her non-confirmation was due
to her lateness and absenteeism.

[46] It was submitted by the claimant’s learned counsel that it can be assumed
that the claimant has been confirmed as her services were still retained after
the four-month probation period. CLW1 in evidence stated that the claimant
was treated as a confirmed employee in the company as she was given a
uniform. This is evidenced by the fact that CLW1 had issued her a letter for the
supply of uniforms to her. CLW1 in evidence stated that this was done only
for permanent employees and not probationers (COB1 p 6). The claimant’s
learned counsel relied on Abdul Majid Hj Nazardin & Ors v. Paari Perumal [2002]
1 MELR 1; [2002] 1 MLRA 153 to support this assumption. The court finds
that the facts and circumstances of the above case, namely the terms of the
probation and kind of conduct involved, are readily distinguishable from the
present facts of the case before this court. In Abdul Majid Hj Nazardin & Ors
v. Paari Perumal (supra) the plaintiff was a probationer for three months and
his terms of employment differed from that of the claimant in this case. The
defendants granted the plaintiff annual leave on six occasions after the expiry
of the probation period. As may be seen from his letter of appointment, the
plaintiff would only be entitled to such leave if he were a confirmed employee.

[47] However it is baffling why CLW1 assumed the claimant to be a confirmed

employee when it was within CLW1’s knowledge that a letter of confirmation
must be issued to a probationer before he/she can be confirmed. In the case
of the claimant, CLW1 was aware that no such letter was issued to her as
he would be responsible to obtain the sanction of the General Committee
to confirm the claimant and at the same time it would be he who issued the
letter of confirmation to the claimant in pursuance of r 18(d) of the Rules,
Regulations and Bye-Laws of the company.
 Jamilah Abdul Hask
[2015] 3 MELR v. Selangor Coast Club Klang 449

[48] The court finds it appropriate at this point to make a comment on

the probative value of CLW1’s testimony during this hearing. CLW1 was
terminated by the company on 24 December 2012. Since then he has instituted
a case against the company in the Industrial Court and is a witness to other
cases filed by previous employees of the company in the Industrial Court
and Civil Courts. At the same time, CLW1 has lodged complaints against the
company with the Registrar of Societies and Suruhanjaya Pencegahan Rasuah
Malaysia. It is a fact that he parted ways with the company in an uncongenial
and acrimonious manner. Therefore the credibility and partiality of CLW1’s
evidence is of concern and thus his evidence must be evaluated with caution.
[49] Be that as it may, the court disagrees with the claimant’s learned counsel’s
assumption that in the above circumstances the claimant was treated as a
confirmed employee in the company. This is in view of the following that was
explicitly stated in “The Law of Industrial Disputes” vol 1, 6th edn, at p 307 by
OP Malhotra:
“Furthermore, the extension of any facilities to such employees, during
the period of their probation or extension thereof, or their being treated as
confirmed, will not ipso facto, make them confirmed, which can only be done
by a valid order on confirmation.”
[Emphasis added]

[50] The company had repeatedly through verbal warnings and written
warnings warned the claimant regarding her habitual lateness and absenteeism
and the company viewed it as serious misconduct to the extent that it informed
her that it is at its option to terminate her services with the company. The court
finds that the claimant was aware that her habitual lateness and absenteeism
were a serious problem with the company and even acknowledged it through
her letter dated 23 November 2011. She had promised to change but to no avail
although ample opportunity was given to her.
[51] BR Ghaiye in his text “Misconduct in Employment” had this to say at p 65:
“Misconduct would mean such act or conduct as adversely affects employees’
duties towards the employer. The misconduct complained of must have
some relation with the employees’ duties or the work entrusted to him by the
employer or his competency to perform the same. Any breach of an express
or implied duty on the part of an employee, unless it be of a trifling nature,
would amount to misconduct …
In considering the case of dismissal of a private servant Lord Eshar MR, in
Pearce v. Foster observed on p 539 as under:
“The rule of law is that where a person has entered into the position of
servant, if he does anything incompatible with the due or faithful discharge
of his duty to his master, the latter has a right to dismiss him. The relation
of master and servant implies necessarily that the servant shall be in a
position to perform his duty duly and faithfully, and if by his own act he
prevents himself from doing so, the master may dismiss him …”.”
 Jamilah Abdul Hask
450 v. Selangor Coast Club Klang [2015] 3 MELR

[52] Habitual lateness and absence without prior notice/approval are serious
misconducts which warrant a dismissal. This is supported by the following
distinguished views:
OP Malhotra in the book “The Law on Industrial Disputes”, Vol 2 6th edn, at
p 1139 stated the following:

“Punctuality in attendance is always an implied condition of service.

The management is entitled to regular and punctual attendance on the part
of the employees and it has a right to take disciplinary action amounting,
if necessary, to dismissal, in order to ensure that these requirements are
fulfilled …

… Though casual or isolated cases of late attendance may not warrant

serious punishment, yet if an employee makes late attendance a matter of
habit, it can be seriously viewed particularly when the workman has been
previously warned to be punctual …”.

BR Ghaiye in the text “Misconduct in Employment” at pp 712 and 751 stated

as follows:

“No employee can claim as a matter of right leave of absence without

permission and when there might not be any permission for the same.
Remaining absent without any permission is, therefore, gross violation of
discipline ...

… If the workman absents on one or two occasions then he can put up the
plea that the absence was on account of reasons beyond his control. But
when he absents himself on several occasions, this plea cannot be believed,
specially when he did not sent any application or intimation for the days of
absence. This shows that he is in the habit of absenting himself from duty
without permission and offering false excuses later on. The permission
to discharge such a worker should be granted ...”

[Emphasis added]

[53] It is trite that employers’ stand as judges of probationary employees’ in

their efficiency and in their suitability for employment. In this context suitability
to confirm a probationary employee is not just based upon performance of the
employee but also on his conduct, behaviour, aptitude and attitude in relation to
the job for which he is employed. If the employer is legitimately and genuinely
discontent with a probationary employee, that employer is entitled to terminate
his probationer’s service.

[54] It is trite in this area of law that the yardstick used to gauge the claimant’s
performance must be left to the company’s sole prerogative, so long as it was
not tainted by mala fide intent.

[55] CLW1 in evidence had tried to insinuate mala fide on the part of the
company when he averred that the company was discriminatory towards the
claimant and it had acted under the influence of questionable intentions. These
allegations were made by CLW1 whose impartiality towards the company
 Jamilah Abdul Hask
[2015] 3 MELR v. Selangor Coast Club Klang 451

was questionable. At the same time, these were mere allegations that were not
substantiated by cogent, objective and reliable evidence.

[56] By a practical assessment of the evidence and submissions taken as a

whole, grounded upon equity, good conscience and substantial merits of the
case, it is the finding of this court that the company had bona fide exercised
its powers to assess the claimant’s overall performance. Upon the company’s
overall evaluation, it was found that the claimant was unable to perform her job
functions satisfactorily as she was habitually late for work and absent without
prior notice/approval. These constitute serious misconducts for which the
company dismissed the claimant. The claimant had indeed been given a fair
opportunity to prove herself and measure up to the company’s expectations,
but she failed to avail herself of the opportunity. The probation period had
been extended but the claimant failed to show improvement.

Decision

[57] Taking into consideration the totality of the evidence adduced by both
parties, the principles and the reasons enunciated above and bearing in mind
s 30(5) of the Industrial Relations Act 1967 to act according to equity, good
conscience and substantial merits of the case without regard to the technicalities
and legal form, this court finds on a balance of probabilities that the claimant’s
dismissal was with just cause or excuse. Accordingly the claimant’s case is
dismissed.