FUKUYAMA FORWARDING SDN. BHD. (dahulunya dikenali sebagai UFA Utara Forwarding Agency Sdn. Bhd.) v NORAZEMI BIN ABD WAHAB

Case Significance

Reaffirms that a probationer enjoys the same protection against dismissal without just cause as a confirmed employee, and that an employer alleging poor performance must prove a warning, an opportunity to improve and continued unsatisfactory performance before the Industrial Court.

This High Court decision concerns an employer's appeal against an award of the Industrial Court in an unfair-dismissal matter. The Chairman of the Industrial Court had held that the employee, a probationer, was dismissed without just cause or excuse (ditamatkan perkhidmatannya secara tidak sah), and had awarded back wages for a period of twelve months. The appellant employer, a forwarding company, challenged that award. The court explained that the Chairman had applied settled principles on the burden of proof and the assessment of the oral evidence of both sides. In a dismissal said to rest on poor performance, the burden lay on the employer to establish three matters: that the employee had been warned about his unsatisfactory performance (telah diberi amaran); that he had been given an opportunity to improve; and that his performance remained unsatisfactory. The Chairman had found that the employer failed to discharge that burden, and the court held that finding to be correct on the evidence. The employer's own witnesses had confirmed that there was no problem with the employee's performance, so that no warning had been given, and no appraisal had been carried out during the first six months of service; the human-resources executive could not identify any problem that would have justified extending the probation. The employee, by contrast, had asked about the confirmation of his position but received no response. The court further affirmed, following Federal Court authority, that although the employee was a probationer he had the same rights as a confirmed employee and could not have his service terminated without reasonable cause. Finding no justification to interfere with the Chairman's decision, the court held the appeal to be without merit and dismissed it with costs of RM8,000, maintaining the award. The judgment reinforces that a probationer enjoys the same protection against dismissal without just cause as a confirmed employee.