Dear Readers,

This is our Newsletter for January 2015, focusing on the latest industrial/employment law decisions handed down from the Indus-trial Court.

We have analysed several recent Industrial Court awards handed down since the beginning of 2015. In Chiew Foong Ngor v. Tujuan Ehsan Sdn Bhd; Award No: 477/2014, a case concerning a proba-tioner, the Industrial Court acknowledged the Company’s Policies and Procedure on Probationers which provided that if there was no letter of confirmation issued by the company, it could not be implied that the claimant was automatically confirmed. Here, the Court also accepted e-mail correspondences on poor work performance from the claimant’s superior as sufficient prior warning of the claimant’s unsatisfactory work performance. However, the Court noted that the Claimant was a Manager, therefore, the need for warning and opportunity for improvement was much less apparent. The Court also held that although the Company had granted annual leave to the Claimant during the probationary period, this did not imply that the Claimant was confirmed as the annual leave was granted at the Company’s discretion.

Based on this case, it is commented that in order for Companies to better regulate probationary period for its employees on probation, it would be prudent to devise a Policy on Probationers, emphasiz-ing that notwithstanding any extension of probationary period, the probationer remains a probationer until the Company extends the probationer a confirmation letter. Further, the Policy can outline that any additional benefits given to the probationer which is usually enjoyed by a permanent employee such as annual leave, allowances etc, shall not imply that the probationer has been confirmed.

Whilst in Suzana Zakaria v. Sistem Televisyen Malaysia Berhad Award No: 1171 of 2014, the Industrial Court held that the Charges contained in a Notice to attend Domestic Inquiry need only contain necessary key particulars, in order to prove acts of misconduct which were criminal in nature such as falsification. The Court had rebutted the claimant’s submission that the Charges were too general in nature and without specific details for her to present a proper defense.

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January 2015

Understanding GST Implementation & Implications in Human Resource functions

Conducting a Domestic Inquiry: Practice & Procedure

Termination Procesesses in Employment

Effective Collective Bargaining Skills

Managing Poor Performance

Misconduct In Employment: Managing EmployeeDiscipline

How to handle Sexual Harassment at theWorkplace

Managing Industrial Relations

Minimum Retirement Age Act 2012 & Minimum Wages Order 2012

Personal Data Protection Act 2010

Understanding the Employment Act 1955 Understanding the Sabah Labour Ordiance (Cap. 67)

Understanding the Sarawak Labour Ordiance (ACT A1237)

Designing Company Handbook

Understanding the Industrial Relations Act1967

Missing In Action: Effectively Managing Absenteeism at the Workplace

Managing Leave & Absenteeism at the Workplace

Managing High Levels of Sick Leave at the Workplace

Managing Downsizing, Redundancy & Retrenchment

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(1) Chiew Foong Ngor v. Tujuan Ehsan Sdn Bhd; Award No: 477/2014

Dismissal: Probationer — Dismissal during extension of period of probation

The company had employed the claimant as its Finance Manager. The claimant was required to undergo a probationary period of three to six months for the company to ascertain her suitability for the appointment. The company claimed that it had con-ducted two performance appraisals and found the claimant’s performance during her entire probationary period to be unsatisfactory. The company then extended the claimant’s probationary period for a further term during which time it advised the claimant as regards her work performance. Thereafter, the com-pany had conducted a final appraisal and found the claimant unsuitable for confirmation. The company thus terminated the claimant’s employment. The claimant challenged her dismissal and brought up the issue that the company had not issued any show cause letter of warning of the claimant’s misconduct or poor perfor-mance, if any. The claimant further deemed herself to be a confirmed employee when the company approved her seven days of pro-rated annual leave, as the com-pany only granted such leave to confirmed employees. The company’s superiors, testified that the claimant’s work was not up to expectations and referred to the email communications between the company and the claimant during her probationary period.

Case Commentaries:

(1) Clause 8 of the Company Policies and Procedure clearly provided that if there was no letter of confirma-tion issued by the company, it could not be implied that the claimant was automatically confirmed. The claimant’s confirmation depended on the claimant’s performance at work. During the probationary period, the claimant’s superior had on numerous occasions reminded the claimant to improve on her work perfor-mance. There were e-mail correspondences to show that he had to constantly follow up on the claimant’s work. Thus, the claimant had been given prior warning of her unsatisfactory work performance and the com-pany was justified in terminating the claimant’s services due to poor performance.

(2) It is settled law that until such time that the company confirms a probationer’s employment, he remains a probationer. Here, it was also clear that the claimant was fully aware of the provision regarding probation and confirmation that could be found in the Company’s Handbook.

(3) Although the claimant as a probationer was not entitled to annual leave, the company had exercised its discretion to grant her advance annual leave because the claimant had informed the company that she had already purchased a flight ticket for a holiday.

(4) Looking at the claimant’s qualifications and vast experience, the standard of performance expected of her would be higher than that of a young probationer, who joined the work force for the first time. Conclu-sively, the company had proven on a balance of prob-abilities that the claimant had not been able to perform satisfactorily up to the standard expected by the com-pany and that the dismissal was with just cause and excuse.

Claimant’s case dismissed.

January 2015

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(2) Suzana Zakaria v. Sistem Televisyen Malaysia Berhad Award No: 1171 of 2014

Dismissal: Misconduct, cheating — Submission of false bills and licences

The claimant was an executive with the company. She was transferred to Branch Management Group o the Company and placed under the Special Project Unit where she was required to secure necessary licences and permits from the respective local authorities namely, Dewan Bandaraya Kuala Lumpur (“DBKL”) and Majlis Bandaraya Shah Alam (“MBSA”), for events organised by the company. In the course of a review by the audit committee of the company it was discovered that false documents had been used to account for cash advances taken for the purpose of securing licenses from DBKL and MBSA. The audit committee concluded that based on the documentary evidence there was a prima facie case against the claimant. The company then convened a domestic inquiry (“DI”) against the claimant and for this purpose a charge letter containing the two charges were levelled against the claimant. The charges were on submitting falsified bills and falsified licenses.

Case Commentaries:

(1) The claimant’s submission that it was unfair for the claimant to have faced the charges which were general in nature without specific details had no merit, as the charges contained the necessary key particulars in respect of the falsification. The DI by the company was clearly conducted professionally with the claimant being given ample opportunity to defend herself. In this sense the principle of natural justice had been com-plied with.

(2) The documentary evidence adduced by the com-pany in the form of the actual bills and licences as well as the falsified bills and licences allowed room for com-parison. In the face of the evidence adduced it was clear that the bills and licences presented by the claim-ant to the company were falsified accounts. In the circumstances, the company had proven the charges against the claimant on a balance of probabilities. As the charges were indeed very serious acts of miscon-duct, the company’s action in dismissing the claimant was just punishment and was with just cause or excuse.

Dismissal with just cause or excuse.

January 2015

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(3) Christopher F Lammert v. Samudra Marine; Award No: 1036/2014

Dismissal: Misconduct - Negligence - Claimant alleged company dismissed him over the phone which amounted to termination simpliciter - Com-pany denied issuing termination letter or uttering words regarding termination against claimant - Whether there was dismissal - Whether issuance of termination letter a relevant issue - Whether dismissal with just cause or excuse

(4) Mohd Zaidy Mohd Isa v. Percetakan Nasional Malaysia Berhad; Award No: 1294 of 2014

Dismissal: Misconduct — Failure to obey transfer order— Whether punishment of dismissal was fair for insubordination — Whether transfer was a form of punishment — Whether dismissal with just cause or excuse

January 2015

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