INDUSTRIAL COURT OF MALAYSIA

CASE NO: 24(19)(4)/4-1512/16

BETWEEN

SWINDER SINGH A/L RAM SINGH

AND

AMIN-TAN & CO

AWARD NO: 1376 OF 2018

BEFORE : Y.A. TUAN P. IRUTHAYARAJ D. PAPPUSAMY

CHAIRMAN

VENUE : Industrial Court Malaysia, Kuala Lumpur

DATES OF MENTION : 16.12.2016, 16.01.2017, 22.03.2017, 26.04.2017,

18.05.2017, 07.06.2017, 13.11.2017, 10.01.2018.

DATE OF HEARING : 11.04.2018.

REPRESENTATION : Claimant represented himself.

Encik ‘Ammar bin Ghalip together with Puan Nor’

Arifah ‘Izzati binti A Aziz from Messrs Amin-Tan & Co.,
Counsel for the Company.

REFERENCE:

This is a reference made under section 20(3) of the Industrial Relations Act 1967

(“the IR Act”) arising out of the dismissal of Mr. Swinder Singh a/l Ram Singh

(hereinafter referred to as “the Claimant”) by Messrs. Amin-Tan & Co. (hereinafter

referred to as “the Company”) on 29.04.2016.

 AWARD

Brief Facts

The Company is a legal firm. The Claimant commenced employment with the

Company as a Legal Assistant on 04.01.2016 vide a Letter of Appointment dated

10.12.2015 (“the Letter of Appointment”). He had to undergo 3 months’ probation

as required under his terms of the Letter of Appointment and he was paid a salary of

RM6,000.00 per month.

Based on his Letter of Appointment the Claimant was entitled to a Commission of

10% of the collection of the Legal Fees on all files handled by the Litigation

Department after deducting his salary, EPF, Socso, Bonus and the staff of his

department and also general overhead charges of RM3,000.00 per month.

On 21.04.2016, the Claimant requested for leave of 2 working days on 26 and 27

April 2016 via the Leave Application Form (COB1 at page 28) (“the LAF”). His leave

was approved by Dato’ Yong Lay Keow (“Dato’ Yong”) who was one of the Partners

of the Company (as she then was) on 22.04.2016.

On or about 26.04.2016, as pleaded by the Claimant at paragraph 14 of his

Statement of Case a meeting was held by the Company between the Managing

Partner Dato’ Mohamad Amin bin Md Hashim (COW-2) and the Claimant whereby

the Claimant was informed by COW-2 that the Company had decided not to confirm

him as a permanent staff of the Company due to his unsatisfactory work

performance (COB1 at page 29).

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The Company then issued a letter dated 29.04.2016 titled “Re: Non Confirmation as

Legal Assistant” to the Claimant together with a cheque (cheque no: 213796)

amounting to RM9,794.21 being his salary for the month of April 2016 and one

month ex-gratia payment.

The contents of the Company’s letter titled “Re: Non Confirmation as Legal

Assistant” are as follows:

“29th April 2016

SWINDER SINGH A/L RAM SINGH

No B03-0, The Istara Condominium,

Lorong Utara B, Off Jalan Utara,

46200 Petaling Jaya, Selangor.

Re: Non Confirmation as Legal Assistant

Reference is made to our letter of appointment dated 10th December 2015.

As you are aware it is stated in the abovesaid appointment letter that your

appointment is on a probationary period of three (3) months, and your appointment

will be terminated automatically if you are not confirmed at the end of your probation.

We regret to inform that after due considerations, Amin-Tan & Co is unable to

confirm you.

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We enclosed herewith our CIMB cheque No 213796 to the amount of RM9,794.21

being your salary for the month of April 2016 and one month ex-gratia payment.

We thank you for your services and wish you all the best in your future endeavour…”

Pleadings

The Claimant in his Statement of Case (SOC) inter alia essentially averred as

follows:

(i) As at 03.03.2016, upon the expiry of 3 months’ period from the date of the

Letter of Offer, the Claimant’s employment with the Company was

impliedly confirmed when the Senior Partner of the Company namely,

Dato’ Yong approved his annual leave application on 22.04.2016 for 2

days i.e from 26.04.2016 till 27.04.2016 respectively;

(ii) That throughout the probationary period and during the confirmation

period, he had diligently and with full dedication assisted the Company to

carry out his responsibilities towards the Company;

(iii) That he had not received any letter of warning or letter to state that the

Company was unhappy with his performance;

(iv) That on or about 26.04.2016 he was told by Dato’ Mohd Amin bin Hashim

(COW-2) the Managing Partner of the Company that the Company was

not satisfied with the Claimant’s performance and had therefore decided to

terminate him. Accordingly, the Claimant had averred that he had been

unlawfully terminated by the Company without just cause or excuse.

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The Company in his Statement in Reply (SIR) inter alia essentially averred as

follows:

(i) That the Claimant’s employment has never been impliedly or expressly

confirmed by any of the Partners’ of the Company;

(ii) That Dato’ Yong has never been the Senior Managing Partner;

(iii) That the Company has never issued any letter confirming the Claimant’s

employment after the probation period had ended;

(iv) That while the Claimant was undergoing his probationary period in the

Company, the Claimant was found to have been working for his wife’s law

firm of Messrs Kiranjit Randhawa & Co throughout his probation period.

Additionally, the Company also found another letter dated 01.04.2016 with

the letterhead of Messrs Kiranjit Randhawa & Co wherein the Claimant

has been named as one of the Partners of the said law firm.

(v) That at all material times the Claimant was under a probationary period

with the Company. After the period of probation had ended, the Company

was unable to confirm the Claimant with the Company due to the

Claimant’s unsatisfactory performance. The Company also stated that it is

not obliged to issue any letter of warning to the Claimant during the

probationary period.

Duty of the Industrial Court

When the Industrial Court is dealing with a reference under section 20, the first thing

that the Court will have to do is to ask itself a question whether there was a

dismissal, and if so, whether it was with or without just cause or excuse. (Wong

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Chee Hong v. Cathay Organisation (M) Sdn. Bhd. [1988] 1 CLJ (Rep) 298 at page

302).

Issue

The issue to be determined by this Court is two fold;

(a) Whether the Claimant was a confirmed or probationary staff at the date of

his termination of employment; and

(b) If so whether the Claimant’s termination/dismissal was with just cause or

excuse.

Law

What is the status of an employee who is a probationer? The Court of Appeal in the

case in Khaliah Abbas v. Pesaka Capital Corporation Sdn. Bhd. [1997] 3 CLJ

827 decided that an employee on probation enjoys the same rights as a permanent

or confirmed employee and the probationer's services cannot be terminated without

just cause or excuse. His Lordship Shaik Daud Ismail JCA at page 831 expressed:

“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 fide 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 as

a result of discrimination or unfair labour practice, the Industrial Court has the

jurisdiction to interfere and to set aside such dismissal.”

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In the case of Equatorial Timber Moulding Sdn. Bhd. v. John Michael Crosskey

[1986] 2 ILR 1666, the learned Chairman describes the legal character of

probationary employment and the respective rights and obligations of the employee

and employer. The learned Chairman stated:

“Being a probationer, he 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 probationary period he is found

to be unsuitable and his employer can terminate his probation by virtue or

otherwise as provided in the terms of the appointment… 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. And no enquiry need to be held

for such a purpose, for termination of service of the probationer during the

probationary period is not punishment or dismissal but simply that of

termination... However, when the validity of such a termination is challenged,

the court must be satisfied that such termination was a bone fide exercise of

the power conferred by the contract. And when 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.”

The Federal Court in the cases of K.C. Mathews v. Kumpulan Guthrie Sdn. Bhd.

[1981] CLJ (Rep) 62 and V. Subramaniam & Ors v. Craigielea Estate [1982] 1 MLJ

317 accepted the position of a probationer as set out by the Indian Supreme Court in

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the case of Express Newspapers Ltd. v. Labour Court and Anor AIR [1964] AIR

SC 806 where Das Gupta J. held:

“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

services 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...”.

Evaluation of Evidence and Findings

(i) What is the Claimant’s period of probation in the instant case?

Clause (e) of the Letter of Offer dated 10.12.2015, states as follows:

“... (e) You are required to serve probation of three (3) months from the date

of your joining the service of our Firm. Your appointment will terminate

automatically if you are not confirmed at the end of your probation.

In the event your period of probation is extended, it shall be upon the terms

and conditions as determined by the Firm.”

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The Claimant contended that the duration of the three months’ probation of the

Claimant based on the said Clause (e) is from 04.01.2016 till 03.03.2016. This is

plainly wrong. I am in agreement with the Company’s view in that the correct reading

of said Clause (e) is that the Claimant had to serve 3 months’ probation period that is

from 04.01.2016 until 04.04.2016.

The language of Clause (e) is very clear in that it states that the Claimant’s

appointment will terminate automatically if he is not confirmed at the end of the

probationary period. The word automatically means ‘by itself with little or no direct

human control’. In any event, the Claimant’s termination of service must be with just

cause and not arbitrarily or capriciously. As at the last date of the 3 months’

probationary period which is on 04.04.2016, the Claimant had not received any letter

of confirmation from the Company. The Claimant had in fact agreed in cross-

examination that he had not received any letter of confirmation or non-confirmation.

(ii) The Claimant contends that he had been confirmed impliedly in his job. Is that

the case in the instant case?

Even though the Claimant confirmed in cross examination that he did not receive any

letter of confirmation, he nevertheless claims that he had been impliedly confirmed. It

is the Claimant’s contention that his confirmation took place when Dato’ Yong

proceeded to approve the Claimant’s application for annual leave on 22.04.2016 for

2 days i.e from 26.04.2016 till 27.04.2016 respectively and unconditionally.

The Claimant had also submitted that it is implied that upon Dato’ Yong’s conduct of

approving the Annual Leave on 22.04.2016 unconditionally, showed that by his

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ostensible authority he had confirmed that the Claimant is a confirmed employee and

is therefore entitled to the Annual Leave. In short, the Claimant contended that he

was deemed confirmed as there was an express act of confirming his employment

by way of approving his Application for Annual Leave which is an entitlement of

benefit enjoyed by a confirmed staff. He further contended that besides having his

Annual Leave approved he was also given an ex-gratia payment of one month.

In support of his contention that he had been impliedly confirmed, he relied on the

Court of Appeal case of Abdul Majid Hj Nazardin & Ors v. Paari Perumal [2002] 3

CLJ 133 (“Abdul Majid’s case”) where it was held that “By acting towards the

plaintiff as if he were a confirmed employee eg, or by giving him the annual leave,

the defendants were taking a position or must be deemed to have taken the position

that the plaintiff was confirmed…”.

The Company’s version is there it did not confirm the Claimant in his position as a

permanent staff in the Company as he was not issued with a letter of confirmation

expressly stating that he has been confirmed. There was no denial from the

Company that Dato’ Yong had approved the LAF for 2 days of Annual Leave but the

question to be asked is whether Dato’ Yong is aware of the status of the Claimant at

the time he approved the LAF for the Claimant. The Company further submitted that

it is for the Claimant to call Dato’ Yong as a witness to support the Claimant’s claim

that Dato’ Yong knew that the Claimant was under probation period and yet he

approved his LAF for 2 days of Annual Leave.

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In my view the Claimant’s position at the time his LAF was approved he still

remained a probationer for the following reason:-

1. In the first place, the Claimant in cross examination admitted that it was he

himself who filled in the LAF and ticked the Annual Leave box. The Claimant

ought to have known that firstly, that at the end of his probation period on

04.04.2016 he had not received a letter of confirmation and secondly on

22.04.2016 when he filled in LAF for Dato’ Yong’s approval he ought to have

informed Dato’ Yong as to which column he ought to fill in the LAF. Is it the

Annual Leave column or the Unpaid Leave column? If he had asked Dato’

Yong this basic clarification he would have known which column that he

needed to fill in the LAF. In cross- examination the Court asked the Claimant

the following question:-

“Q : Refer to page 3 of CLB1. Did you alert the partner who

approved this form that you have not received any confirmation

letter before applying for annual leave?

A : I did not alert directly but I asked Dato’ Yong what was my leave

entitlement and she replied that it was annual leave.”

Q : Been aware that you not having received any confirmation letter

from the company it would have been prudent to have alerted

Dato’ Yong regarding your leave entitlement in the

circumstances?

A : Yes it would have been prudent.

Q : Could you have alerted Dato’ Yong of your current status before

your apply annual leave knowing that paid annual leave is only

meant for a confirmed staff?

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 A : At that point of time I assumed that she knew that I am a

confirmed staff, hence she approved my leave.”

It must be noted that Dato’ Yong was not called by the Claimant to give evidence at

the hearing as she had left the Company. The question is whether the calling of

Dato’ Yong as a witness would have made any difference in the determination as to

whether the Claimant was a probationer or a confirmed staff just for having signed

the said Leave Application Form. In my view the presence of Dato’ Yong would not

have made any difference for this purpose.

In this regard Dato’ Mohd Amin bin Hashim (COW-2) who is the Managing Partner of

the firm during cross examination testified as follows:

“Q26 : I am putting it to you (refer to page 1 of COB-1 and cross referred to

page 3 of CLB-1) that based on the approval of the annual leave by

Dato’ Yong without any remarks or amendments to the Leave

Application Form, the leave approved was annual leave.

A : I would say no.

Q27 : I am putting it to you that based on the Leave Application Form if

indeed this was an unpaid leave then there would have been remarks

made in the Leave Application Form to indicate as such.

A : Dato’ Yong may have overlooked on the unpaid leave.

Q28 : Whether Dato’ Yong had overlooked or otherwise, from the face value

of this document it tantamount to paid paid annual leave? Agree?

A : No I disagree.”

...

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 “Q37 : Refer you to the letter of offer at pages 1 & 2 of COB1 and refer to

page 29 of COB1. Since you have confirmed that the probationary

period expired on 03.04.2016 and the alleged Non-Confirmation Letter

was issued on 29.04.2016, during this period (i.e 3rd till 29th) what

would be the status of the Claimant?

A : He is not confirmed as a staff of Messrs Amin-Tan & Co.

Q38 : If the Claimant is not confirmed as a staff wouldn’t it be prudent upon

the management of Amin-Tan & Co to further give an extension of the

probationary period?

A : We saw no reason to extend.

Q39 : I am putting it to you that since there was no letter of extension of

probationary period from 03.04.2016 to 20.04.2016 coupled with the

fact that an annual leave of 2 days was duly approved on 22.04.2016 it

is implied that a confirmation had stepped in.

A : I disagree.”

The Abdul Majid’s case which was cited by the Claimant in support of his claim that

he had been impliedly confirmed as a result of the Company having approved 2 days

of annual leave can be clearly distinguished from the facts in the instant case which

are as follows:

(a) In Abdul Majid’s case the Claimant was employed as a clerk in the

defendants’ firm of solicitors whereas in the instant case the Claimant is an

Advocate & Solicitor of the legal firm of Messrs Amin-Tan & Co. A clerk

may not be in a position to check with her superior as to her employment

status whereas the Claimant in the instant case being a lawyer would

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 certainly be intellectually far superior than the clerk and therefore ought to

have been able to inquire from his superior as to what was his status

before he filled in the LAF.

(b) In Abdul Majid’s case the plaintiff continued to work for a period of about

9 months after his period of probation expired. Additionally, the defendant

granted the plaintiff annual leave on 6 occasions after the expiry of the

probation period. However, in the instant case as explained by COW-2

that Dato’ Yong may have over looked in granting 2 days of annual leave

instead of unpaid leave as the Claimant was still a probationer. Unlike in

Abdul Majid’s case the Claimant continued to be in the employment of

the Company by a mere 16 days after the end of the probation period and

thereafter the Court believes that he was mistakenly granted 2 days of

Annual Leave instead of Unpaid Leave. It must be stated that just because

the Claimant was granted 2 days of Annual Leave in the circumstances as

explained earlier that does not ipso facto make him a confirmed staff.

(c) In the instant case the Claimant was holding a position as an Advocate

and Solicitor who is a legally trained and ought to have asked any of the

Company’s partners at the end of his probation period for his confirmation

letter. Had he done so, the concerned Partner would have made know his

employment status accordingly. The Claimant had the opportunity to clarify

his confirmation or probationary status with the any of the Partners but he

failed to do this.

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 (d) The Claimant had another opportunity to clarify his employment status

from 04.04.2016 until 22.04.2016 before he submitted his LAF for

approval. During the said period he could have asked the partners of his

employment status regarding his confirmation but he failed to do so.

(e) The Claimant had a further opportunity to clarify from the partners as to his

confirmation status before he decided before filling in the LAF as to

whether he should in the Annual Leave or Unpaid Leave column. If he had

asked he would have obtained the answer and there would not have been

any issue on this matter. The Claimant assumed that he is confirmed in

his post and this was his problem. I am of the firm view that his personal

assumption of his employment status does make him a confirmed staff.

Confirmation takes place only when he is expressly informed that he has

been confirmed in his post.

Based on the above analysis the Claimant’s employment status at the time he

submitted his LAF for approval he was a probationer as he not received any express

letter from the Company that he has been confirmed.

(iii) What was the reason provided by the Company in its Statement In Reply for not

confirming the Claimant in his post as a Legal Assistant?

The Company had in its SIR has pleaded that the Claimant was not confirmed in his

said post due to his unsatisfactory performance. In this regard evidence was led by

the Company to show that the Claimant was a Partner in his wife’s Legal Firm under

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the name of Messrs Kiranjit Randhawa & Co. as shown at pages 12 and 22 of

COB1.

In cross examination with regard to the letters that were addressed to Kiranjit

Randhawa & Co. and where the Claimant’s name appeared as a Partner of the said

Legal Firm, the Claimant responded as follows:

“Q2 : Is it true or not that you had started working in Kiranjit Randhawa & Co.

in May 2016?

A : May be. I am not sure.”

...

“Q21 : I refer to COB1 pages 12 and 22 of COB1. What is this document?

A : I have no knowledge of this document.

Q22 : Are you aware that your name was stated in the document at page 12

Attn: Mr. Swinder Singh (By Hand)?

A : I am not aware.

Q23 : Refer to page 22 of COB1. This letter was dated 01.04.2016 while Mr.

Swinder Singh was still under probation in Amin-Tan & Co.?

A : I have no knowledge of this document.

Q24 : Do you agree that you have been doing other works of other firms

during your probation period in Amin-Tan & Co.?

A : Yes as Counsel.

Q25 : Do you agree that the management of Amin-Tan & Co. does not

know that you have been doing other works of other firm in Amin-

Tan & Co.?

A : I have no idea if they knew or not.

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 Q26 : Did you inform Amin-Tan & Co. that you have been doing other works

from other firms?

A : Yes, before my appointment as a probationary Legal assistant in Amin-

Tan & Co. I have informed both the Partners that I am currently

employed in Kiranjit Randhawa & Co. and will be assisting as a

Counsel in her firm.”

The Claimant had conducted himself in a very unprofessional manner by being a

Partner in his wife’s Legal Firm and doing Counsel work while being employed as a

Legal Assistant in Amin-Tan & Co. His evidence that he had “informed both the

Partners that he is currently employed on Kiranjit Randhawa & Co. and will be

assisting as Counsel in her firm” is totally unreliable and lacks veracity as firstly, his

response to Question 25 in cross examination revealed that “he has no idea if Amin-

Tan & Co. knew or not if he was doing work for other firm” contradicts his response

to Question 26 in cross examination. Secondly, the Claimant failed to cross examine

COW-2 as to whether he was aware that the Claimant was doing work for other firms

while being employed in Amin-Tan & Co. Thirdly, the Claimant has not been honest

in his evidence when he stated that he does not have any knowledge of the

document at pages 12 and 22 of COB1 when his name was in existence on the

Letterhead of his wife’s Firm and furthermore he was a Partner there before he

joined Amin-Tan & Co.

I am of the view that based on the Claimant’s overall conduct by (i) knowing that he

has not been expressly confirmed in his job and so he ingeniously filled up the

Annual Leave column in the Leave Application Form hoping to show that he has

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been confirmed impliedly even though the Company has not issued him any

confirmation letter and (ii) he has been dishonest in his work by doing counsel work

in his wife’s firm while being employed as a Legal Assistant in Amin-Tan & Co.

(iv) Was it necessary to hold a Domestic Inquiry or that the Claimant should have

been given a warning letter before he was terminated?

In my view taking into account the Claimant’s position as an Advocate and Solicitor

who had been employed as a Legal Assistant in Amin-Tan & Co. there is no

requirement to hold a Domestic Inquiry against him on an allegation of poor

performance. There is also no necessity to issue a warning letter to the Claimant as

it is obvious that as a lawyer he ought to know that it was absolutely wrong for him to

be a Partner in his wife’s legal firm while being employed as a Legal Assistant in

Amin-Tan & Co. and doing Counsel work for other forms. The Court must reiterate

that there are abundant authorities to support the view that an employer has the right

to terminate the services of a probationer without notice and without assigning any

reasons whatsoever but the Company’s decision to terminate the services of the

probationer must not be capricious or arbitrary. In the instant case after taking all

factors into account the Company was absolutely justified in not confirming the

Claimant in his post as a Legal Assistant in the Company.

Decision

There was no evidence brought forth by the Claimant to show that he had been

victimised or that he had been subjected to any unfair labour practice. Based on the

above facts and analysis and applying section 30(5) of the IRA 1967, the Court has

acted with equity, good conscience and the substantial merits of the case without

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regard to technicalities and legal form and in doing so, I have no hesitation in holding

the view that the Company was justified in terminating the Claimant’s employment

without confirming him. The non-confirmation of the Claimant was therefore with just

cause or excuse.

Accordingly, the Claimant’s claim is dismissed.

HANDED DOWN AND DATED THIS 20th DAY OF JUNE 2018

-signed-

(Y.A. TUAN P. IRUTHAYARAJ D. PAPPUSAMY)

CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR

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