IN THE INDUSTRIAL COURT OF MALAYSIA
CASE NO.: 6/4-2673/21
BETWEEN
MERRY APPLE TARUC ACHICO
AND
SOFTENGER (MALAYSIA) SDN. BHD.
AWARD NO.: 1293 OF 2023
Before : Y.A. Tuan Amrik Singh - Chairman (Sitting Alone)
Venue : Industrial Court Malaysia, Kuala Lumpur
Date of Reference : 13.08.2021
Dates of Mention : 24.11.2021 & 09.03.2022
Dates of Hearing : 09.11.2022, 10.11.2022, 17.11.2022, 17.01.2023,
15.03.2023 & 21.03.2023
Representation : Mr. Muniandy Vestanathan with Muhammad Afiq
bin Yahawa
Messrs. Jamie Wong
Counsel for the Claimant
Ms. Angelene Cheah Kai Li
Messrs. Andy & Co
Counsel for the Company
REFERENCE:
This is a reference made under section 20(3) of the Industrial Relations
Act 1967 (the Act) arising out of the dismissal of Merry Apple Taruc
Achico (hereinafter referred to as “the Claimant”) by Softenger
(Malaysia) Sdn. Bhd. (hereinafter referred to as “the Company”) on 1st
February 2021.
AWARD
[1] The parties in this dispute have filed their respective written
submissions, reply submissions and bundle of authorities in
support of their case which this Court has taken its time to read
on every issues raised therein and had examined and considered
the oral and documentary evidence presented in the trial.
[2] The documents that were filed by parties which this Court had
gleaned to consider in handing down this Award were as follows:
(i) Statement of Case
(ii) Statement In Reply;
(iii) Rejoinder;
(iv) Claimant’s Bundle of Documents marked as CLB 1, CLB 2
and CLB 3;
(iv) Company’s Bundle of Documents marked as COB 1 and
COB 2;
(v) Witnesses Statement for the Claimant marked as CLWS
1 for Kalaivani A/P Sockalingam, CLWS 2 for the Claimant,
CLWS 3 for Noor Asmawe Bin Mohamed Isa and CLWS
4 for Jessylyn Cezar; and
(vi) Company’s witness statement of R. Lakshimi Narayanan
marked as COWS 1.
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Brief Facts Of The Case
[3] A Filipino citizen, the Claimant, gave her testimony in this
unlawful dismissal claim before this Court by way of remote
communication technology and was present through out the
proceedings via remote hearing since the Claimant resides
and works in British Columbia, Canada.
[4] The Claimant was a work permit holder, commenced her
employment on 28.06.2019 as Talent Acquisition Specialist and
was placed under a probation for a period of six (6) months
with the initial monthly salary of RM5,500.00. By letter dated
25.09.2020, the Claimant was promoted to Senior Talent
Acquisition Specialist effective from 01.09.2020 with a revision
of salary to RM5,850.00.
[5] By an email received on 02.12.2020, the Claimant was informed
that she has been terminated due to ‘lack of efficient
performance’ and her last date of employment with the
Company to be on 01.02.2021.
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[6] The Claimant pleads that her dismissal was not caused by
her alleged poor performance but was due to her rejections of
the ‘inappropriate invitations’ made by her superior R. Lakshimi
Narayanan (Naren) (COW 1). The Claimant prays to be reinstated
without any deductions of salary, allowance, seniority, privilege
or benefit which the Claimant was entitled prior to her dismissal
and compensation for the unfair dismissal.
The Claimant’s Submission
[7] It is submitted by the Claimant that upon being notified of her
termination vide an email dated 02.12.2020, the Claimant was
given approximately two (2) months notice with her last date
of employment to be on 01.02.2021. The Company ought to
have issued the Claimant a warning as to her alleged poor
performance in her duties but no such notice was issued to
the Claimant. In fact, the Company decided to terminate the
Claimant’s employment out of a sudden without any indication
of the Claimant’s wrongdoings or what the Company was
dissatisfied of.
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[8] The learned counsel for the Claimant submitted that it is
unacceptable that the Company merely issued an email to
state that “several reminders and team meetings” tantamount
to giving warnings to the Claimant. The learned counsel
submitted that a reminder is not a form of warning for termination
but merely the Company’s request to the Claimant to improve
on the shortcomings and if there were any shortcomings, the
Company would then has to conduct performance reviews and
devise a performance plan for the Claimant. As there was no
information provided by the Company to help the Claimant
improve her poor performance prior to the termination, the
Claimant did not receive details regarding how to improve her
poor performance, how many chances or opportunities the
Claimant has to improve herself, the time frame to improve
her performance and no proper steps taken to terminate the
Claimant’s employment.
[9] The Company, as submitted by the Claimant in her submission,
had admitted through COW 1 in his cross examination that the
Claimant did a good job numerous times during her
employment and praised her in the group messages. The
Claimant claims that it is ludicrous for the Company to claim
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that the Claimant was under performing but yet praised the
Claimant for her good performance prior to terminating her
from her employment.
[10] It was further submitted that there were no warnings given to
the Claimant and the reminders were mere reminders with no
consequences of the reminders culminating into a termination
of her employment with the Company. In the absence of any
warnings, notices or documents it would be impossible for the
Claimant to know of her alleged shortcomings in her work
performance.
[11] The Claimant submitted that arising from the Company’s failure
to warn the Claimant of her alleged poor performance, the
Company did not give any opportunity to the Claimant to
improve prior to terminating her from her employment and the
Company had not adduced any evidence to that effect.
[12] It was further submitted that the Company had failed to
establish a Performance Improvement Plan (PIP) for the
Claimant. The Claimant cited the case of Tan Poh Thiam v
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Industrial Court of Malaysia & Anor [2015] 1 LNS 1534 that
held :
“[84] This court is convinced that the claimant could have been
dealt with appropriately with proper management system
ie, other lesser forms of punishment instead of taking
drastic steps by terminating his service.”
[13] On an issue relating to sexual harassment against the
Claimant, it was submitted by the Claimant that COW 1 had
sent her “ love kiss” emoji which was unwarranted of COW 1.
COW 1 asked the Claimant for her response when he sent
the message “not for this?” in reference to his love kiss emoji.
The Claimant submitted that there was nothing in the
testimonies which suggested that any emoji of flirtatious kind
was accepted or welcomed by the Claimant and instead it made
her uncomfortable.
The Company’s submission
[14] It is the Company’s submission that it had, through numerous
emails, reminded and warned the Claimant about not achieving
the required targets number profiles per day as well as not
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adhreing to the Company’s policy of having a proper mail
signature. The Company listed emails correspondences issued
to the Claimant on her performances and for not adhering to
its mail signature policy. It further claimed that the emails as
exhibited in the Company’s bundle of document are sufficient
to show that the Claimant had been given numerus written
warnings pertaining to her not achieving daily targets and
therefore are sufficient to justify dismissing the Claimant.
[15] It was submitted then by the Company that as the Claimant
held the position of Senior Talent Acquisition Specialist, the
Company was of the view that the Claimant was expected to
know what are the requirement and the expectation of her by
the Company.
[16] To an email dated 29.09.2020 from the Company’s
representative, wherein it was stated “Treat this as a warning”,
the Company submitted that the Claimant cannot now allege
that she had not been given any warnings prior to her
dismissal as she had agreed that it amounts to a warning and
she had acknowledged the said email.
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[17] The Company urge this Court to disregard the evidence that
the Claimant had only acknowledge the email dated 29.09.2020
from the Manager, Mr. Naveen, at the request of Mr. Naveen
himself who was not called as a witness as hearsay evidence
and inadmissible.
[18] The Company asserts that there was no mala fide and/or ill
intention or ulterior motive in dismissing the Claimant and it is
evidently clear that the Claimant had been warned of her poor
performance.
[19] On the issue of posting of the pouting mouth and heart love
emoji to the Claimant, it was submitted that COW 1 had no
other intention in sending the aforesaid emoji to the Claimant’s
WhatsApp and was meant as a normal fun emoji as it was
also used in the official office WhatsApp group.
The Claimant’s Witnesses
[20] The Company also urge this Court to disregard the evidence
of the Claimant’s witness CLW 1 who left the Company prior
to the Claimant’s dismissal on 30.06.2020. CLW 3’s testimony
9
according to the Company had no relevance as he had
admitted that he does not know the number of profiles the
Claimant is required to submit. Furthermore, the Claimant’s
solicitor had informed the Court that CLW 3 was being a
hostile witness as his testimony during cross examination by
the Company’s counsel was completely different from his
testimony given in his examination in chief. As for CLW 4, it
is in her evidence that CLW 4 did not work with the Claimant
though being with the Company at that time and left sometime
in early June 2019. CLW 4 admitted that the allegations that
COW 1 would be nice to the Claimant when the Claimant is
alone with COW 1 and the messages sent by COW 1 to the
Claimant via WhatsApp was based on what was told to her
by the Claimant.
Losses Suffered by the Company Due To The Claimant’s Actions
[21] On the losses of RM137,000.00 suffered by the Company due
to the Claimant’s actions of having misused the JobStreet
portal, the losses were discovered after the Company checked
the ‘Summary of Credit Consumption By User’. Further, having
received the Company’s laptop from the Claimant, it was
10
discovered that the Company’s private and confidential related
data in the laptop had been erased which resulted in losses
for the Company. The Company submitted that the issue
on the losses suffered by the Company is a pertinent issue
which ought to be considered by this Honourable Court.
Submission On Relief To The Claimant
[22] The Company submitted that the Company was justified in
dismissing the Claimant due to her poor performance and the
Claimant’s claim for compensation and/or reinstatement out
to be dismissed by this Court. Should the Court decide in
the Claimant’s favour, an order of reinstatement may not be
feasible in this case. The Company submits that the Claimant’s
entitlement to backwages ought to be limited to five (5) months
of the Claimant’s last drawn basic salary and since the Claimant
had been paid salary for the two (2) months’ notice period
and that the Claimant had been earning an income post
dismissal albeit as a part time employee and did not voluntarily
disclosed the information to the Court, deductions for post
dismissal out to be made.
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[23] Hence, on the basis that the Company had discharged its
burden in proving the Claimant’s performance to be poor on
the balance of probabilities, the Company claims that the
Claimant’s dismissal was with just cause or excuse.
The Issues
[24] Since no argument as to the actual factum of dismissal was
raised in this case, the only sole issue that arose for the
determination of this Court is whether the Claimant’s is dismissal
with just cause or excuse.
The Law
[25] The function of the Industrial Court pertaining to a reference
under section 20(3) of the Act is to determine a two fold
question i.e. whether the misconduct complaint of has been
proven and secondly, whether the proven misconduct constitutes
just cause or excuse.
[26] The above principle which has been invariably applied in
Industrial Awards was laid down by Raja Azlan Shah CJ
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(Malaya) as His Lordship then was in the case of Goon Kwee
Phoy v J & P Coats (M) Sdn Bhd [1981] 1 LNS 30; [1981] 2
MLJ 129 :
“Where representations are made and are referred to the
Industrial Court for enquiry, it is the duty of the court to
determine whether the termination or dismissal is with or
without just cause or excuse. If the employer chooses to
give reason for the action taken by him the duty of the
industrial court will be to enquire whether the reason or
excuse has or has not been made out. If it finds as a fact
that it has not been proven, 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 the employer, and that court or the
High Court cannot go into another reason not relied on by
the employer or find one for it”.
in the same breath, the role of the Industrial Court under s.20
of the Act was succinctly explained in the case of Milan Auto
Sdn. Bhd. v Wong Seh Yen [1995] 4 CLJ 449, where the
Federal Court held that :
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“As pointed out by this Court recently in Wong Yuen Hock
v Syarikat Hong Leong Assurance Sdn. Bhd. & Another
[1995] 3 CLJ 344; [1995] 2 MLJ 753; the function of the
Industrial Court in dismissal cases on a reference under
Section 20 is two-fold. Firstly, two 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 jurisdictional
error…”.
The Industrial Court in exercising its quasi- judicial function
in determining whether the termination or dismissal is with
or without just cause or excuse was also accorded the duty
to act according to equity, good conscience and substantial
merits of the case as provided under section 30(5). It
therefore becomes essential that in a reference made to
the Industrial Court under section 20 of the Act, the Industrial
Court shall deal with the substantial merits of the case
without regard to technicalities and legal form.
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The Misconduct Complained Of By The Company
[27] The termination of the Claimant’s employment with the Company
was grounded on the Claimant’s poor performance as evident
from the Company’s email of 02.12.2020 entitled “Termination
of contract with the company due to poor performance” that
condensed the Company’s message to the Claimant. The full
content of the email is reproduced herein below:
Dear Apple,
We regretfully notify you that after a series of serious discussions, we
have come to the conclusion that the company demands the termination
of your contract due to the constant lack of efficient performance shown
by you.
As senior resource (Senior Talent Acquisition Specialist) in company after
several reminders and team meetings, It was monitored that your
performance and commitment is not up to the level.
Thus, keeping the company's losses incurred due to your lack of
performance in mind, as per the clause 17 (Termination of Contract of
Employment) we have decided to you lack of refiate your contract with
Softenger (M) Sdn Bhd.
Therefore, your last date in employment would be 1st February 2021.
We believe during time of notice period you will carry out your duties and
responsibilities as per targets given by Management, if fail to do so
repeatedly more than 3 consecutive days, it wilead to shorten your notice
period by lacking in your daily duties.
We request you to return all the property that was obtained during your
employment with softenger, including Laptop, Charger, Office Access
Card and Key etc on your last working for the F&F settlement.
Best Regards
Shobaa
Ast. Manager - HR & Operations
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The Burden of Proof
[28] In situation where the Company caused the dismissal of its
employee or the workman, the burden lies on the Company to
discharge the burden of proof. This was illustrated in the case
of Ireka Construction Berhad v Chantiravathan a/l
Subramaniam James [1995] 2 ILR 11 where the Court opined
that :
“It is a basic principle of Industrial Jurisprudence that in a
dismissal case the employer must produce convincing
evidence that the workman committed the offence or offences
the workman is alleged to have committed for which he has
been dismissed. The burden of proof lies 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
facts of the case”.
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The Standard of Proof
[29] In Telekom Malaysia Kawasan Utara v Krishnan Kutty
Sanguni Nair & Anor [2002] 3 CLJ 314 the Court made it clear
that the standard of proof that is required is one that is on
the balance of probabilities.
“Thus in hearing a claim of unjust dismissal, where the
employee was dismissed on the basis of an alleged criminal
offence such as theft of company property, the Industrial
Court is not required to be satisfied beyond a reasonable
doubt that such an offence was committed. The standard
of proof applicable is the civil standard, ie. Proof on a
balance of probabilities which is flexible so that the degree
of probabilities required is proportionate to the nature and
gravity of the issue”.
[30] On the ingredients necessary to prove poor performance as
alleged by the Company, it is pertinent to refer to the case of
Ireka Construction Berhad (supra) where the Learned Chairlady
stated that:
17
“ The only issue for the Court to determine now is whether
the Company on a balance of probabilities has established
the poor performance of the Claimant. 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 Claimant was warned about his poor
performance
(ii) that the Claimant was accorded sufficient opportunity
to improve
(iii) that notwithstanding the above, the Claimant failed
to sufficiently improve his performance”.
[31] In a more recent Judicial Review case of Nesarajah Nadarajah
v Mahkamah Perusahaan Malaysia [2023] 1 LNS 642 in the
High Court Malaya of Kuala Lumpur, Ahmad Kamal Md Shahid
J states that :
[24] Hence, to establish poor performance, the employer has
to prove that it had followed the fair procedure as follows:
(i) The employer should make a proper and full
investigation into the reasons why the employee is
not performing;
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(ii) The employer should then tell the employee of the
areas in which he is failing to do his job adequately
and if need be, show him how it should be done;
(iii) The employer should then give an opportunity to the
employee to improve his performance; and
(iv) Finally, if the employee continues to perform
unsatisfactorily, warn him that he may have to go.
The Evaluation And Findings
[32] The Company has likened the Claimant’s last held position to
a senior management position and claimed that the Claimant
was therefore, expected to know the expectation of the
Company had on her. With due respect to the learned counsel
for the Company, this Court do not think so.
[33] The Claimant had joined the Company on 28.06.2019 in the
position of Talent Acquisition Specialist and on 1.09.2020 the
Claimant was promoted to Senior Talent Acquisition Specialist.
[34] It is the Court’s considered view that being promoted to the
Senior Talent Acquisition Specialist cannot be deemed to be
19
similar to an employee in the position of senior management
position in the Company as pointed out in the submission of
the Company by relying on the cases of Robert John Reeves
v Menteri Sumber Manusia Malaysia & Anor [2000] 1 CLJ 180
and Sitt Tatt Bhd v Ong Chee Meng [2004] 2 ILR 388.
[35] The Claimant had just worked for approximately 1 year and 3
months when she was promoted to Senior position. Even after
being promoted, the Claimant was still doing the same job
scope that is to achieve the number of profiles set by the
Company albeit higher. However, the Claimant is not in the
senior management position as having just been in the position
over one (1) year and three (3) months could not had possibly
made the Claimant senior in her position and this fact is
misconceived by the learned counsel for the Company. Further,
the Claimant is not in the managerial position in the Company
in the first place and her seniority position is to distinguish
herself from a new recruit or an employee who is much junior
in that department. It is not that she hold a higher position
by being a senior. The seniority refers to the longer period
she had been employed in that position. Hence, the cases
20
cited by the Company’s learned counsel do not apply in the
Claimant’s situation.
[36] The thrust of the Claimant’s case is that up until the date the
Claimant was terminated from her employment, the Company did
not conduct any evaluation on her performance and the
Claimant had often been commended by the Company’s
director (COW 1) since February 2020 by way of WhatsApp
messages stating “Good job Apple”. Proof of the WhatsApp
messages received by the Claimant from COW 1 span from
February to November 2020 and was adduced in Court during
the trial as found in the Claimant’s Bundle of Documents (CLB
1) p. 11 to 24.
[37] On the contrary, the Company had relied on several emails to
prove that it had reminded and warned the Claimant
concerning her failure to reach the required target number
profiles per day as well as her lack of compliance with its
policy in submitting her signature in her emails.
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[38] The Company’s first email of 24.04.2020 entitled “Official
Circular to Internal Team” (“Official Circular email”) was
addressed to the Claimant and few other employees, contents
of which is reproduced herein below for ease of reference.
Hi Team,
Further to the several discussion in Meetings earlier, We need to achieve
these agreed timelines and KPIs. The following actions will follow for
compliance and non-compliance.
THIS WILL BE APPLICABLE TO ALL IN THIS MAIL TRAIL.
1. Min 4 closures for quarter are only eligible to incentive for that particular
Quarter.
2. If no / <4 closures for the quarter then it will be considered as below par
performance and tagged under “performance improvement plan”. (For
SHAMINI It is 3 closures till end of June 2020 as she is junior role)
3. Any emails or official notification in WhatsApp group from HR / SM /
Managers have to be acknowledged.
4. Management will observe all individual's initiative and response time of
mail circulation along with the progress of profile submissions on daily basis.
5. Need everyone to send the profiles, call tracker without fail If requested by
SM or Management. For each position, it have to be covered with min of 3
quality profiles.
6. Minimum 2 profiles per day (during MCO) to be submitted either for one
role or different roles.
7. If the numbers are not achieved then the recruiters will be under PIP and
not eligible for incentive. Falling to do so will be considered as non-
performance.
8. If the submission numbers are not achieved for subsequent 5 working days
continuously then they will be tagged under "Performance improvement
plan".
9. PIP will be for a period of one month and if there is no improvement then
it will be a cause for termination without further notice.
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10. Without 2 qualified CV submissions recruiters are not allowed to logout
unless SM allows. And SM is responsible on those positions to cover up.
11. Going forward, there will be Score card evaluation every month to assess
the month's performance.
12. If any mislead, creating bad reputation about company or sharing
/passing company info out will lead to severe action and proceed with
immediate terminations under Data Protection Act.
It is expected that everyone to read all the points fully, acknowledge this mail
and concur with the guidelines mentioned above.
Management takes serious exception to insubordination. Failing to abide by
these rules will invite appropriate actions by management.
Note: Kindly read and reply back with individual acceptance to me, if any
concerns please feel free to call anytime. Expecting acknowledgement reply
by today without fail. Thanks
[39] The instructions given in the Offiical Circular email was as clear
as day. The Company expected everyone to read and concur
the guidelines stated in the Official Circular email and failure to
abide by the rules will invite appropriate actions by its
management. COW 1 testified that the email was specifically
to those who did not perform up to the mark.
[40] In evidence, the Company had reminded the Claimant to meet
her daily targets via email dated 02nd June 2020, 04th and 05th
August 2020, and in the month of September, the emails of
18th, 23rd , 29th and 30th September 2020.
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[41] The Claimant was further reminded not to log out till she meet
her daily target of 3 profiles/vacancies as adduced in evidence
vide emails of 04th and 05th August, 18th, 23rd and 29th of
September 2020. In the email of 30.09.2020, COW 1 stressed
to the Claimant that she being a senior resource management
of the Company, 4 joiners were expected of her.
[42] As it was the Company’s requirement that all emails must
contained signature of the sender, the Claimant was advised to
include her signature in her emails vide Company’s email
dated 18th November 2020.
[43] Prior to the Company’s email on 02nd December 2020 notifying
her of her employment termination, the Company in the email
dated 20.11.2020 had instructed her to update her mobile
number in all her emails .
[44] From the trails of emails of the Company to the Claimant
prior to terminating her services, it is noted that there is no
evidence of any email(s) to the Claimant in the month of
October and November 2020 to warn or remind the Claimant
to meet her targets or that she ought not to log out till she
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meet her targets. The Company did not adduce evidence
regarding the Claimant’s poor performance for the months of
October and November 2020 in their termination of contract
email. The absence of any evidence of her poor performance
during the two (2) months (October and November 2020) implies
that the Company had no evidence of the Claimant’s
continuous poor performance or the Claimant failing to achieve
her targets in October and November 2020 before issuing the
termination of contract email to the Claimant.
[45] The Company had remain silent instead, on the status of her
performance for the months of October and November 2020
when nothing is produced as evidence to show if the Claimant
had failed to meet her targets or if the Company had been
continuously reminding her to meet her target during the two
(2) months.
[46] In this case, because no evidence of the Claimant’s poor
performance was provided for the two (2) months, this
demonstrates that there was no reason for any dissatisfaction
of poor performance or non compliance of the Company’s policy
which otherwise in normal circumstances could had led the
25
Company the reason to issue another warning notice or
reminder to the Claimant.
[47] As such, this Court finds that the decision made by the
Company by issuing the termination notice on 02.12.2020 after
a lapse of two (2) months without any complaints is perverse
and irrational.
[48] In the Industrial Court case of Bruce Dargus v Cloudfx
Malaysia Sdn Bhd [2017] 2 LNS 1253 it was stated by the
Learned Chairman that:
“[24] Even if there was pre-sales target as alleged, it is an
establish principle of Industrial law that an employer cannot
dismiss a worker who is not performing satisfactorily without
first informing him of the mistakes he is alleged to have
made (see : the case of S James v Waltham Holy Cross
UDS [1973] IRLR 202, 204. Furthermore, the worker must be
given the opportunity to correct himself within a reasonable
period and he must be warned of the risk of dismissal if
they are not corrected. The same principle should apply in
this case. On the contrary, the evidence adduced in this
26
case including the copies of the e-mail correspondences did
not show an agreement that there was a pre-sales target”.
[49] In the case of Rooftech Sdn Bhd v Holiday Inn, Penang
[1986] 2 ILR 818 (Award No. 166/86) the Court stated :
“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 has 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. The Company has failed to
do”.
[50] Further in the later case of IE Project Sdn Bhd v Tan Lee Seng
in Award No. 56/87, the Learned Chairman P S Moorthy
articulated as follows:
“If an employee is not measuring up to his 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
27
that the employee is found to be unsatisfactory in his
performance or is capable 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”.
[51] I wish to reiterate what was stated by the learned Chairman in
Ireka Construction Berhad :
“It would appear from the above authorities 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 lies on the company to adduce convincing and
compelling evidence to prove this”.
[52] The Company in its pursuit to establish the poor performance
of the Claimant had only referred to the results in the month
28
of June, August and September 2020 but not October and
November 2020.
[53] The principle from the above authorities is clear. A written
warning is essential to be given to an employee and without
such warning, an employee would not have known that his
employer is dissatisfied with his work performance. Invariably,
an employer must be slow to act to dismiss his employee upon
having known that the employee’s performance did not meet
the standard required of him without indicating to the employee
in writing that he runs the risk of being terminated from his
employment if no satisfactory results is achieved within the
sufficient time given to him to improve. This has failed to take
place in the instant case as evident in the months of October
and November 2020 where the decision by the Company to
issue the termination notice to the Claimant had override any
written warning or a proven verbal warning.
[54] The another pertinent issue in this case is premised on the
Official Circular email which COW 1 in his evidence stated that
the Official Circular email was directed to the poor performers
that included the Claimant.
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[55] The focal point in the Official Circular email is the Performance
Improvement Plan (PIP) found in clause 7, 8, 9 and 11
reproduced earlier above. Under clause 7, 8 and 9, the
recruiters will be placed under one (1) month of Performance
Improvement Plan (PIP) if the recruiters failed to achieve the
numbers of profiles set or the submission numbers are not
achieved for subsequent 5 working days and if still no
improvement on the performance during the PIP month, it can
be a cause for termination. Under clause 11, there will be a
Score Card evaluation every month to assess the month’s
performance of the recruiters.
[56] Premised on the guidelines of the Official circular, the Company
was supposed to follow the guidelines to place the Claimant in
the PIP and subsequently conduct a score card evaluation on
monthly basis in order to drive a message to the Claimant that
she is not performing up to the expectation required of her and
that sufficient opportunity is being given to her to improve on
her performance.
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[57] By the Company failing to comply each steps in accordance
with clause 7, 8 and 9 of its given guidelines to the Claimant,
it is clear that the Company had prejudiced the Claimant.
[58] It is the Court’s findings that despite the Company’s strong
emphasis in the Official Circular which expressly stipulates that
“Failing to abide by these rules will invite appropriate actions
by management” the rules in clause 7, 8, 9 and 11 was never
followed and enforced by the Company and no explanation
was given why such rules were not followed before the
dismissal. Hence, such action can only be deemed to be one
which is prejudicial to the Claimant. The Company had acted
in haste in terminating the Claimant’s employment by skipping
the rules that had been implemented prior to the dismissal.
[59] The other issue raised by the Claimant in her pleading and
in her testimony is in relations to the allegations of sexual
harassment from COW 1 where the Claimant claimed that
there were many instances where COW 1 orally invited the
Claimant to have dinner after working hours which she had
rejected every time. This Court however finds the issues
surrounding the allegation of sexual harassment to be irrelevant
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in regards to the Claimant’s claim. Nevertheless, the Court
finds that observing from the demeanour of the Claimant when
answering the questions in relation to the inappropriate conduct
of COW 1, the Court is more inclined to believe the Claimant
and find her evidence that she had been invited to have
dinners by COW 1 after working hours to be highly probable.
[60] On the contrary, this Court does not accept as truth COW 1’s
explanation that posting the pouting mouth and heart love
emoji to the Claimant to be a normal fun emoji and had
been used in official office WhatsApp group as there was
no evidence that it was commonly used in the WhatsApp
group. Therefore, this might shed some light to suggest why
the Claimant was terminated without the Company adhering
to its own guidelines.
[61] On the issue of losses suffered by the Company as a result
of the Claimant misusing the Jobstreet portal causing the
Company to loose RM137,000 and discovering that the data
in the laptop given to Claimant had been completely erased
which also caused losses to the Company, are also irrelevant
as the were not the grounds for termination. Be that as it
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may, no solid evidence was adduced to support the claim
for the losses incurred by the Company.
[62] Coming back to the real issues at hand, based on the findings
made on the allegations levelled against the Claimant, there
is a fatal flaw in the Company’s action which led to the
Claimant’s dismissal without just cause or excuse.
Remedy
[63] Given that this Court has found the Company to have
dismissed the Claimant without just cause or excuse, the next
consideration in respect of the Claimant’s interest will be to
determine the proper remedy that is appropriate to the Claimant.
It is not disputed that the Claimant is a confirmed employee
and to reinstate the Claimant to her former position is totally
out of the question considering the fact that the Claimant had
after the dismissal went back to her home country and currently
residing and working in Canada. I therefore agree with the
learned counsel for the Company that compensation in lieu of
reinstatement would be more suitable which in this case shall
be one (1) month by taking one (1) month for each completed
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year of service as the tenure of the Claimant’s employment
was only up to 01.02.2021.
[64] In the Claimant’s letter of Appointment as Talent Acquisition
Specialist, the duration of her employment is stipulated to be
two (2) years though the Company was desirous to continue the
Claimant’s employment to be longer. The learned counsel for
the Company submitted that, on that basis, the Claimant had
a remaining five (5) months of employment before her contract
of employment expires by end of June 2021. Again, I find
the Company’s argument on this point to be justified.
[65] It was in evidence that the Claimant had found employment
as a freelance in Malaysia for the period between January to
June 2021 before she returned to Philippines.
[66] The Court is bound by the principle laid down in the case of
Dr James Alfred (Sabah) v Koperasi Serbaguna Sanya Bhd
(Sabah) & Anor [2001] 1 MELR 17; [2001] 1 MLRA 305; [2001] 3
CLJ 541 to take into account post dismissal earnings of the
Claimant by making appropriate deductions from the backwages
awarded by the Court. In this case, the Claimant admitted to
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have worked as a free lance from January to June 2021. Taking
into consideration that income from free lance jobs may not
provide a steady income as a permanent employee, a lesser
deduction from the backwages would still be required and in
this case 15% is deemed to be reasonable and fair.
[67] Based on the above reasoning and acting in equity and good
conscience, this Court awards the Claimant as follows:
(a) Backwages
RM5,850 x 5 months = RM29,250.00
Less 15% = RM4,387.50
(b) Compensation in lieu of reinstatement i.e. one month
salary for every completed year of service
RM5,850.00 x 1 months = RM5,850.00
Total = RM30,712.50
Final Award
[68] It is this Court’s Order that the Company shall pay the Claimant
an Award sum of RM30,712.50 (Thirty Thousand Seven Hundred
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Twelve And Fifty Cents Only) less statutory deductions (if any)
to the Claimant’s solicitors Messrs Jamie Wong.
HANDED DOWN AND DATED THIS 7TH DAY OF JUNE 2023
-Signed-
(AMRIK SINGH)
CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR
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