JY Ko – Successful Unfair Termination Defence (Employment – Industrial Court)

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We are pleased by the recent Award granted by the Industrial Court in Kuala Lumpur dismissing the Claimant’s/Employee’s unfair dismissal claim against our Client (Company).

Summary of Facts:-

1. The Claimant was a 65-year old lady employed by the Company with a monthly salary of RM4,100.00. At all material times, she is a probationer.
2. The Claimant had shouted at the Company director, had quarrels with her colleagues as well as with customers and bank officer during work.
3. Based on the Claimant’s conduct, on 4.8.2023, during a discussion between the Company director and the Claimant, it was agreed that the Claimant’s last day shall be on 5.9.2023. On 4.8.2023, the Company had also issued a notice of termination to the Claimant with the same effect.
4. The Claimant did not reply work messages on Friday (1.9.2023) and did not turn up for work on Monday (4.9.2023) onwards.

Industrial Court’s Judgment

The Court in deciding that the termination was fair and justifiable, further held that:-

1. The Claimant was still a probationer, and the word “probation” means “a process of testing or observing the character or abilities of a person who is new to a role or job” and a “probationer” is a person who is serving a probationary or trial period in a job or position which they are newly appointed (English Oxford Dictionary)
2. The Company is entitled at its discretion, to discontinue the probation or confirm the Claimant on his employment, who is a probationer with the company at the material time. The issue is whether the company has unfettered discretion to terminate its probationer employee; and whether the company’s discretion is subject to limitations set out by the industrial jurisprudence. It is trite that the suitability of a probationer to be confirmed on employment and the evaluation of performance of an employee is best judged by his or her employer.
3. The Claimant was shouting at the employer during the course of working hours. This court agrees that such insubordination of the Claimant constitutes serious misconduct which had affected the smooth operation of the daily affairs and proper functioning of the Company. Clearly the Claimant’s conduct is not feasible for a harmonious working environment in the Company.
4. The Claimant had drawn the employer’s share of the statutory EPF contribution at the rate of 13% of the salary instead of 4% in her favour given the fact that the Claimant had passed 60 years old [refer: Third Schedule, Section E, Employees Provident Fund Act 1991]. Given her vast experience, seniority and position as an Account Executive in the Company, she should have been aware of the statutory requirements in respect of the payroll. Instead, she had abused the position to her own advantage. As the company had denied any consent to such unusual rate of 13% as the employer’s contribution towards her EPF fund, and the claimant had failed to adduce any evidence in rebuttal, there is merit in the company’s reason in not confirming the claimant on her employment.
5. It is the Court’s findings that the Claimant had; prima facie, committed serious misconduct that justifies her dismissal and/or non-confirmation on his employment. Her behaviour and conduct whilst serving his probationary period were entirely inconsistent with the fundamental assumption to find suitability and harmony on which an employer-employee relationship is based.
6. The claimant has failed the process of testing or observing her character or abilities as a person who is new to a role or job or position which she was newly appointed. In the observation of her employer, the claimant as a probationer, was not fit and proper person to perform the duties for which she has offered his services and as such the claimant would not be entitled to be confirmed or taken in on a permanent basis.
7. It is pertinent to emphasize that it is never the function of this court to interfere with the company’s observation as the employer is the best judge of its own employee’s performance or the lack of it. This court has reminded itself that the claimant being a probationer has no caveat on the employment.
8. Her discharge from even being confirmed on the employment was with just cause or excuse. In the name of equity and goop conscience which applies not merely for employees, this court ought not to tolerate the claimant’s misbehaviour and misconduct and as such, the dismissal in the affirmative.

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Disclaimer: The above proposition is subject to actual facts and circumstances and shall never be referred as the actual law without seeking legal advice. Consult us for more information!