INDUSTRIAL COURT OF MALAYSIA

CASE NO: 14/4-773/16

BETWEEN

LIM TIAN TIANG

AND

GABE FASHION SDN. BHD.

AWARD NO: 669 OF 2019

BEFORE : YA PUAN SITARUN NISA BINTI ABDUL AZIZ

Chairman

VENUE : Industrial Court, Kuala Lumpur

DATE OF REFERENCE : 31.05.2016.

DATES OF MENTION : 25.07.2016, 23.08.2016, 21.09.2016, 20.10.2016,

06.01.2017, 20.01.2017, 03.03.2017, 10.12.2018,
12.12.2018, 19.12.2018.

DATES OF HEARING : 28.11.2016, 03.02.2017, 15.03.2017, 24.08.2017,

27.09.2017, 28.09.2017, 14.11.2017, 30.10.2018 &
01.11.2018.

REPRESENTATION : Ms. Marina Netto

Messrs Christhy Marina & Associates
Counsels for the Claimant

Ms. S. Sivagami
Messrs Zaid Ibrahim & Co.
Counsels for the Company

REFERENCES:

This is an order of reference dated 16.11.2015 under Section 20(3) of the Industrial

Relations Act 1967 arising out the dismissal of Lim Tian Tiang (the Claimant) by

Gabe Fashion Sdn. Bhd. (the Company) on 13.11.2015.

INTRODUCTION

[1] The matter was heard by the previous Chairman of Court 14 and the full trial

was completed on the 31.10.2018. Claimant’s Counsel, Ms. Marina Netto from

Messrs Christhy Marina & Associates and Ms. S. Sivagami from Messrs Zaid Ibrahim

& Co. counsels for the Company filed their submissions.

[2] The previous Chairman of Court 14 has been transferred from the Industrial

Court to the Attorney General Chambers on the 18.09.2018. The learned President

has instructed me to continue with the hearing. In doing so, with the consent of both

parties, I have perused all the relevant documents, the pleadings, the notes of

evidence recorded verbatim by the previous Chairman before proceeding with the

trial. Accordingly, I shall now hand down the award for the case.

BACKGROUND OF THE CASE

[3] The Claimant commenced his employment with the Company as a General

Manager on 21.10.2015 with a probationary period of 6 months. The monthly salary

of Claimant was RM12,000.00 per month.

[4] The Claimant had served the Company for a period of 23 days before being

dismissed by the Company with immediate effect on 13.11.2015. The reason for the

dismissal given by the Company was that the Claimant cannot communicate with

other colleagues effectively.

[5] The Company pleaded 3 occasions that showed the Claimant cannot

communicate with other colleagues effectively as per below:-

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 i) The Claimant held a meeting with all the respective stores heads to

brainstorm on how to boost sales. During a casual conversation prior to

the meeting commencing, the Claimant had insulted a supervisor by

saying that she looked pretty but she was a bit too fat and his callous

comment was witnessed by other supervisors.

ii) Failure to leave proper instruction to Ms. Lily Chia on the urgency of

RM400.00 that he obtained from the cash sales for a licence renewal.

iii) Chastised Siti Azimah binti Basri, Sales Assistant through Ms. Lily Chia

for cutting her nails in the store and accusing her for not adhering the

Company’s policy.

iv) The Company has also got official complaints from the said team about

his disrespectful and haughty attitude.

LAW

[6] As to the function of the Court when handling a reference under s. 20 of the

Industrial Relations Act 1967 (“the Act”), the Federal Court in Wong Yuen Hock v.

Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal [1995] 3 CLJ 344 at p.

352 enunciated;

“On the authorities, we were of the view that the main and only function

of the Industrial Court in dealing with the reference under s. 20 of the

Act (unless otherwise lawfully provided by the terms of the reference), is

to determine whether the misconduct or irregularities complained of by

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 the management as the grounds of dismissal were in fact committed by

the workman, and if so, whether such grounds constitute just cause or

excuse for the dismissal.”

[7] In the case of Goon Kwee Phoy v. J & P Coats (M) Bhd [1981] 1 LNS 30, is

binding authority for the proposition that the Court is restricted in its inquiry into the

veracity of the reason chosen by an employer for the dismissal. Raja Azlan Shah CJ

(Malaya) (as His Royal Highness 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 or reason

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.

It is an established principle of industrial law that a probationer has no

substantive right to hold the post; he holds no lien on the post and has

no right of tenure to his job beyond the agreed contractual probationary

period - see Equatorial Timber Moulding Sdn. Bhd., Kuching v. John

Michael Crosskey, Kuching [1987] 1 ILR 486; [1986] 2 ILR 866, Soon

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 Seng Industrial Products Sdn. Bhd. v. Metal Industry employees Union

[1988] 2 ILR 219 and Edaran Otomobil Nasional Bhd. v. Safri Jaukarani

Tiguat [1994] 2 ILR 928.

[8] Raja Azlan Shah CJ (as His Majesty then was) in KC Matthews v. Kumpulan

Gunthrie Sdn. Bhd. [1981] CLJ 62 (REP); [1981] CLJ 40 had quoted with approval

the principal laid down by Das Dupta J in delivering the judgment of the Indian

Supreme Court in Express Newspapers (P) Ltd. v. Labour Court & Anor AIR 1964

SC 806 where he said the following:-

“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 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.”

[9] In Khaliah Abbas v. Pesaka Capital Corporation Sdn. Bhd. [1997] 3 CLJ 827,

the Court of Appeal has propounded the following:-

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 “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. In the present case we find that the Industrial Court made a

finding of fact that the dismissal of the appellant was without just cause

or excuse.’

[10] In Dorsett Regency Hotel (M) Sdn. Bhd. v. Andrew Jayadass James Ambrose

[2003] 2 ILR 740 at page 751 the Learned Chairman analysed the meaning of the

above passage of the Court of Appeal in relation to a reference under Section 20(3)

of the Industrial Relations Act 1967 and the status of probationer 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 or 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 ILR 90 at p. 95 the learned chairman referred to a

passage in Malhotra’s book “The law of Industrial Dispute” (11th Edn. At

p. 224) which reads as follows:

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 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, it does not

confer any right on them to be confirmed.

What is more important is that he then went on to say that the

above statement of law clearly envisages the need for a clear

distinction between probationary employment and permanent

employment and for this reason an employee on probation cannot

expect to be accorded with the same status, rights or privileges as

a permanent employee. So long as the employer is reasonably

satisfied that the employee is not suitable for the job he may be

removed. Suitability is not just based upon the performance of the

employee but also on his conduct, behaviour, aptitude and

attitude in relation to the job for which he is employed.

[11] In relation to a reference under section 20(3) of the Act where just cause or

excuse is the fundamental requirement or element for dismissing an employee, a

probationer enjoys the same right as a permanent or confirmed employee which

means the element of just cause or excuse must be established against a

probationer much as the same as against a permanent or confirmed employee.

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BURDEN AND STANDARD OF PROOF

[12] The burden of proving misconduct that justifies dismissal lies on the employer

who has to establish such misconduct to the standard of a balance of probabilities.

[13] In Century Mahkota Hotel, Melaka & Anor v. Michele Geraldine Kessler [1999]

3 ILR 60 (Award No. 553 of 1999), the Industrial Court stated:-

“It is settled law that in cases of direct dismissal such as this, the burden

is always on the employer to satisfy the Court by way of cogent and

convincing evidence, albeit on a balance of probabilities that such

misconduct as are alleged have indeed been committed by the

employee and if so, whether it deserves a dismissal.”

[14] In Ireka Construction Berhad v. Chantiravathan Subramaniam James [1995] 2

ILR 11(Award No. 245 of 1995), it was stated that;

“It is a 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.”

[15] In Stamford Executive Centre v. Dharsini Ganesan [1986] 1 ILR 101 (Award

No. 263 of 1985), it was held;

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 “It must be emphasized here that the employer must produce convincing

evidence that the workman committed the offence(s) he is alleged to

have committed and for which he has been dismissed. The burden of

proof lies on the employer. He must prove the workman guilty, and it is

not the workman who must prove himself not guilty. This is so basic a

principle of industrial jurisprudence that no employer is expected to

come to this Court in ignorance of it.”

[Emphasis Added]

ISSUES

[16] The issues to be decided by Court are as follows:-

i) Whether the complaint by the Company as the grounds of dismissal

were in fact committed by the Claimant.

ii) Whether such ground constitute just cause or excuse for the dismissal.

EVALUATION AND DECISION

[17] It is a principle of industrial jurisprudence that in a dismissal case, as in the

present case, the burden of proof lies on the Company, as employer to prove, on a

balance of probabilities that the Claimant's dismissal was with just cause or excuse.

The employer must produce convincing and cogent evidence to justify the dismissal

of the employee.

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[18] The first issue the Court would address is about the complaint. The Company

has laid down the complaint in the termination letter and in the Statement Of Reply.

The termination letter is reproduced as follows:-

[19] At the hearing, the Company produced the witnesses as follow:

i) Siti Azimah binti Basri ( COWS -1 )

ii) Chia Li Ly ( COWS -2 )

iii) Wong Yen Shin ( COWS -

3)

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 iv) Fauziatul Emylia binti

Mohamad Fuezi ( COWS -4 )

[20] The Claimant testified in support to his claim. His witness statement is marked

as CLWS.

[21] The main witness of the Company, Quinnie was not called to give evidence

although her Witness Statement was filed in Court. Ample opportunities had been

given by the Court to accommodate her, but she and another witness failed to turn

up during trial. She is the one who signed the termination letter.

[22] The inability of the Claimant mainly addressed on the issue of cannot

communicate with other colleagues effectively.

[23] The first issue pleaded was during the Claimant held a meeting with all the

stores respective heads to brainstorm on how to boost sales. During a casual

conversation prior to the meeting commencing, the Claimant had insulted a

supervisor by saying that she looked pretty but she was a bit too fat and his callous

comment was witnessed by other supervisors. It was commented during a casual

conversation and not in the meeting.

[24] However, the Company had failed to adduce any evidence on this issue. The

incidence happened during a casual conversation and not while he was handling any

official duties when such remark was uttered.

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[25] On the part of failure to leave proper instruction to Ms Lily Chia on the

urgency of RM400.00 that he obtained from the cash sales for a licence renewal is

not an issue at all. In the course of business, the main issue is to settle any overdue

or due payment. As a general manager, he had obtained the permission and

approval from Qunnie, Administration And Accounting Manager. Furthermore, Miss

Lily Chia must refer to her superior before taking any action.

The Court referred to COW 2 witness statement:-

COWS 2 Chia Li Ly

“Q5 : Can you please inform this Honourable Court as to what happened

on 05.11.2015?

On 05.11.2015, I had disagreement with the Claimant. Several

days prior to 05.11.2015, the Claimant had requested for RM400.00

so that he could renew the DBKL licence for the KLCC shop. His

instruction to me was for me to him without letting me know where

the RM400.00 was supposed to come from. He also did not inform

me that he had already obtained approval from Quinnie Siu to

obtain RM400.00 from the cash register.

It shows the Claimant had carried out the task in his course of

duties. The communication problem was with Chia Li Ly for not

addressing the matter to the Claimant and took action by herself.”

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[26] The issue of chastising Siti Azimah binti Basri, Sales Assistant through Miss

Lily Chia for cutting her nails in the store and accusing her for not adhering to the

Company’s policy is not a valid reason for the termination. Even Siti Azimah cannot

remember the time of incidence. The Claimant was placed at the store room

temporarily. Cutting nails involves hygiene and it was done at the store room. The

Claimant reprimanded her through Miss Lily and not directly to her. Reprimanding

someone over her action cannot be considered as an issue of communication.

Referring to the witnesses evidence on this issue in their Witnesses Statement as

follows:-

COWS 1 Siti Azimah Basri

“Q29 : Memotong kuku, bagaimana Yang Menuntut menuduh kamu?

Beliau telah memberitahu manager saya iaitu Pn. Lily Chia

mengatakan saya potong kuku dalam stor?

Q30 : Setuju YM tidak marah kamu?

Ya, beliau tidak marah Cuma maklumkan kepada manager saya.”

COWS 3 Wong Yen Shin

Insiden Ketiga

Yang Menuntut pernah menuduh seorang rakan sekerja saya (Siti Azimah) bahawa

beliau melanggar prosedur Syarikat apabila beliau memotong kuku di bilik stor. Yang

Menuntut telah memarahi Siti Azimah tanpa usul periksa. Insiden tersebut berlaku di

luar waktu pekerjaan Siti Azimah dan saya Nampak beliau membersihkan tempat

tersebut selepas memotong kukunya.

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[27] The other issues about the Claimant’s attendance and bringing friends to the

Store Room are not justified at all. In the evidence of COW 2, she said the working

hours of the Claimant have not been fixed. In the termination letter, this issue was

not addressed too. It is obviously an afterthought by the Company. No one in the

Company was present to give evidence officially on the record of attendance. And

the issue of bringing friends to the Store Room was not supported by evidence. As

the Claimant’s room was at the Store Room, the issue did not arise at all.

Furthermore, it is not a communication issue at all.

The Court referred to the evidence of COW 2 as follows;-

COWS 1 Siti Azimah Basri

“Cross Examination

Q20 : Adakah pejabat GM di dalam Stor?

Tiada pejabat dalam stor. Stock diletakkan dalam stor dan GM

bekerja dalam stor untuk sementara waktu.

Q21 : Adakah anda mendengar apakah perbualan antara GM dan

kawannya tersebut?

Saya tidak dengar sebab saya berada di luar.

Q22 : Adakah anda tahu terdapat polisi yang melarang GM untuk

membawa orang luar ke dalam stor?

Tidak tetapi perbuatan itu tidak selaras dengan etika peraturan

kedai dimana, pekerja sahaja yang dibenarkan memasuki stor.”

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[28] All the witnesses were the Claimant’s subordinates. They are not reporting or

having direct dealings with him except COW2. In the trial, COW 2 testified that she

will be liaising with him about works only. Person in authority was not called to give

evidence.

The Court refers to the evidence of witnesses as follows:-

COWS 1 Siti Azimah Basri

“Q3 : Semasa Yang Menuntut bekerja di Syarikat, adakah anda melapor

diri kepada Yang Menuntut?

Tidak, apabila saya menjalankan tugasan harian saya, saya

melaporkan diri kepada Cik Lily Chia. Jikalau saya ada apa-apa

soalan tentang tugasan harian saya, saya akan mendapatkan

penjelasan ataupun arahan daripada Cik Lily Chia.”

“Cross Examination

Q13 : Macam mana anda mengatakan tiada komunikasi sedangkan anda

tidak perlu merujuk kepada GM?

Selama Yang Menuntut bekerja beliau tidak pernah sama sekali

menyatakan atau memberi arahan kepada staff bawahan untuk

melakukan sesuatu.”

COWS 3 Wong Yen Shin

“Q3 : Semasa Yang Menuntut bekerja di Syarikat, adakah anda melapor

diri kepada Yang Menuntut?

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 Tidak, apabila saya menjalankan tugasan harian saya, saya

melaporkan diri kepada Cik Lily Chia. Jikalau saya ada apa-apa

soalan tentang tugasan harian saya, saya akan mendapatkan

penjelasan ataupun arahan daripada Cik Lily Chia.”

COWS 4 Fauziatul Emylia

“Q4 : Semasa Yang Menuntut bekerja di Syarikat, adakah anda melapor

diri kepada Yang Menuntut?

Tidak apabila saya menjalankan tugasan harian saya, saya

melaporkan diri kepada Cik Lily Chia. Jikalau saya ada apa-apa

soalan tentang tugasan harian saya, saya akan mendapatkan

penjelasa ataupun arahan daripada Cik Lily Chia.”

[29] The Company had not notified the Claimant of his shortcoming and had

considered the performance of the Claimant during his probationary period before

deciding to dismiss the Claimant. The evidence forwarded by the Company as the

grounds of dismissal were in fact do not constitute just cause or excuse for the

dismissal.

[30] Based on the totality of the evidence adduced, through oral testimony as well

as documentary evidence, the Court finds on a balance of probabilities that the

Company had not proven the said alleged misconduct.

CONCLUSION

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[31] In conclusion, taking into account the totality of the evidence adduced by both

parties and bearing in mind section 30(5) of the Industrial Relations Act 1967 to act

according to equity, good conscience and the substantial merits of the case without

regard to technicalities and legal form, this Court finds that the Claimant’s dismissal

was without just cause or excuse.

REMEDY

[32] As for the remedy sought, it is apparent that the relationship of mutual trust

and confidence between an employee and employer no longer exists due to the

reasons for which the Claimants had been terminated. The relief of reinstatement will

not be beneficial to both parties. The Court is of the considered view that

reinstatement is not the appropriate remedy in the circumstances and facts of this

case.

[33] After considering that the Claimant has only served the Company for a period

of 23 days, the Court is of the opinion that backwages for a period of 4 months is

reasonable. The Court hereby orders that the Company to pay the Claimant through

his Solicitors Messrs Christhy Marina & Associates a sum of RM48,000.00 less

statutory deductions, if any not later than 30 days from the date of this award.

HANDED DOWN AND DATED THIS 22ND DAY OF FEBRUARY 2019

-Signed-

(SITARUN NISA BINTI ABDUL AZIZ)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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