Before Venue Date of Referen: Date of Mention Date of Hearin Date of Mediation Representation INDUSTRIAL COURT OF MALAYSIA CASE NO.: 20/4 - 2485/2018 Between AHMIRA AZNIN BINT] AHMAD And CELCOM MOBILE SDN BHD. AWARD NO.: 413 OF 2020 YA. CIK NOR AFIZAH HANUM MOKHTAR, = Chairman (Sitting Alone) Industrial Court of Malaysia Kuala Lumpur 2 August 2018 6 September 2018, 17 October 2018, 17 Mei 2019. 10 April 2019, 13 December 2018, 9 January 2019 Encik K. Murali, S.N. Nair & Associates, Counsel for the Claimant. Puan Maizura Mohd Amin and Encik Shamsul Bahrin Manaf, Mohanadass Partnership, Counsel for the Company.A. REFERENCE: [1] This is a reference from The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under Section 20(3) of the Industrial Relations Act 1967 (IRA) in respect of the dismissal of AHMIRA AZNIN BINTI AHMAD (‘the Claimant’) by her employer, CELCOM MOBILE SDN BHD (‘the Company’) B. FACTS OF THE CASE (2) The Claimant was appointed as an Account Manager for a term of two (2) years, from 7 March 2016 to 6 March 2018 by way of a contract of employment. She was with the FSI, Oil/Gas Construction, Group Business Services and Solutions Division with a monthly salary of RM4,300.00. [3] On 27 March 2018 she received a three-month extension of the contract with retrospective effect from 7 March 2018 until 30 June 2018. In an email dated 15 May 2018 the Claimant was informed that her performance was not up to the standard required by the Company. She was then placed under a Performance Improvement Plan (PIP) to improve on her performance. [4] Ina lletter dated 29 June 2018, the Claimant was told about the end of her employment with the Company. Her last day with the Company was 30 June 2018.C. THE CLAIMANT'S CLAIM [5] _ In claiming for wrongful dismissal, the Claimant claims the notice of termination was a dismissal without just cause or excuse. According to the Claimant, on 25 May 2018 or thereabouts, the Claimant received an email from the Company stating that she has passed her job evaluation exercise. She was confirmed as a permanent employee with a raise of salary, to be effective upon full completion of the PIP. [6] The Claimant claims that her placement into the PIP was an official extension of the original employment contract for a further three months. The Claimant will then be further assessed/reviewed for a period until 15, September 2018. The Claimant also claims that on 24 September 2018, an email was issued confirming her in her position and provided a raise of salary from RM 4,300.00 to RM6,300.00 subject to full completion of the PIP [7] The notice to end the Claimant's employment dated 29 June 2018 was issued after a month of her enrolment into the PIP. The email Notification of termination by the Human Resources Department and the Claimant's Superior did not state any grounds for the termination. The notice of termination also did not make any mention of the PIP and the email of 24 May 2018 which had confirmed the Claimant in her position.[8] _ The Claimant further claims there was no misconduct on her part at all material times. Hence, the Claimant claims her dismissal was without just cause or excuse. D. THE COMPANY'S CONTENTION [9] In refuting the Claimant's Claim, the Company submits the Claimant's employment contract with the Company was a genuine fixed term contract. According to the Company, the Claimant's employment status was that of a fixed term contract. It was further stated in the contract that, “The company reserves the right to review and change the status of your employment which you will be notified in writing.” The contract of employment was from “March 7, 2016 to March 6, 2078. However, the Company reserves the right to extend the contract to any further date of which you will be notified in writing.” [10] It is the Company's contention that when the Claimant's contract was extended it was from 7 March 2018 until 30 June 2018. Also contended was that upon extension, the Claimant's salary and terms and conditions of the employment remain unchanged. It was further submitted that during the extended employment period, the Claimant's performance shall be further monitored and assessed for continued employment with the Company. [11] According to the Company, the Claimant knew her employment with the Company was a fixed term contract. She had signed the first letter ofemployment on 3 February 2016. Subsequently she also signed the letter of 27 March 2018. Both letters, according to the Company, had clearly stated that she was appointed as Account Manager on a fixed term contract. She never denied having signed these letters of employment Hence, she cannot now argue that she was dismissed and that the dismissal was without just cause or excuse. F, DUTY OF THE INDUSTRIAL COURT [12] In exercising its duty, the Court is very conscious of its functions as laid down by Mohd Azmi Kamaruddin FCJ in Milan Auto Sdn. Bhd. v. Wong Seh Yen [1995] 4 CLJ, 449 at 455. The Federal Court in that case stressed on the function of the Industrial Court in dismissal cases on a reference under section 20 which is two-fold. Firstly, to 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 [13] __ In addition the Court is also guided by the Federal Court decision in Norizan bin Bakar v. Panzana Enterprise Sdn. Bhd. [2013] 6 MLJ 605. The Federal Court was of the view that the Industrial Court has the jurisdiction to decide whether the dismissal was without just cause or excuse by using the doctrine of proportionality of punishment and also to decide whether the punishment of dismissal was too harsh in the circumstances when ascertaining the award under s. 20(3) of the IRA. It was held that the Industrial Court in exercising the aforesaid functions can rely on itspowers under s. 30(5) of the Act based on the principle of equity, good conscience and substantial merit of the case. [14] The Court is further guided by the Federal Court decision on the duty of the Industrial Court in determining whether the termination or dismissal was with or without just cause or excuse (Goon Kwee Phoy v. J & P Coats (M) Bhd. [1981] 2MLJ 128). As outlined by Raja Azian Shah CJ (as he then was) “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’. (emphasis added) As reiterated by Abdul Kadir Sulaiman JCA, as he then was, the Federal Court in the abovementioned case had “clearly laid down the principle that in an enquiry pursuant to s. 20 of the Act, the burden is upon an employer to satisfy the court that the dismissal of its workman is with just cause or excuse" (Esso Production Malaysia Inc v Maimunah Ahmad & Anor [2002] 3 CLJ 242). Hence in the present case, the Court stand fully guided as such 6G__ FINDINGS OF THE COURT [15] In coming to its decision the Court scrutinised all the evidence presented. The Court considered all the facts and evaluated the totality of the evidence, both oral and documentary, guided by equity, good conscience and substantial merits of the case without regard to technicalities and legal form. Bearing that in mind, guided and bound by the decisions mentioned above, the Court makes its findings as follows. [16] The Claimant's case is essentially that her initial contract of employment for a period of two years was extended. The extension was brought about by the Claimant being placed in the PIP. The email of 15 May 2018 (page 9, CLB1) was an official extension of the original employment contract for further three months until 15 September 2018 She was subsequently confirmed in her position with a raise in her salary. [17] On the other hand the Company's case is simply that the Claimant was employed on a fixed two-year term contract. This fact, according the Company is well known to the Claimant as admitted in her evidence in Court. She was placed on the PIP because of her poor performance. She was only to be confirmed if she was successful in the PIP. Because of her poor performance she was not confirmed into the position she held Therefore, her termination on 29 June 2018 was justified [18] Having scrutinised all the evidence presented, the Court is unable to see anything that could substantiate the Company's contention that theClaimant was under-performing. The witness called (COW1) was not in the positon to testify on this issue. She was only an officer at the Company's Human Resources Department. The Claimant's immediate superior Encik Romlan Sarpin who could have shed some light on her work performance was not presented in court [19] There was also a mention of a Mr. Surinderdeep Singh. He issued the email that purportedly confirmed the Claimant in her position, albeit subject to her successful completion of the PIP. He too was not presented as witness. He would have been in the position to offer some clarification on the confirmation, but he was not called to give evidence in court Hence, the Court finds it difficult to accept the Company's contention that the Claimant was performing poorly that led to her dismissal [20] However, the crux of the matter is whether the Claimant was employed on a fixed term contract as contended by the Company. Or, was she already confirmed in her position as submitted by the Claimant. Or, was her employment merely extended for three months i.e. from 7 March 2018 until 30 June 2018 as contained in the 27 March 2018 email [21] In the email of 24 May 2018 (page 61, CLB1), the Company informed the Claimant that she was assessed as “ready and will be confirmed...with effect from 1 May 2018." The email further stated that the Claimant's confirmation “will be on hold pending the successful completion of the Performance Improvement Plan”. The Court however find the two- sentence paragraph rather intriguing. The first sentence said herconfirmation will come into effect on 1 May 2018. The second said the confirmation will be subject to the successful completion of the PIP. Whereas, as per the earlier email (page 9, CLB1), at the same time the Claimant's employment was extended for another three months, until 15 September 2018. [22] Having scrutinised the entire facts and circumstances of this case together with all the evidence presented the Court finds three questions that need to be addressed. First and foremost, is whether the Claimant was employed on a fixed term contract as contended. Second, was she already confirmed in her position. Thirdly, was her employment merely extended for three months i.e. from 7 March 2018 until 30 June 2018 Fourthly, if indeed her dismissal was because of her poor performance as contended by the Company's witness, how was that ascertained. This is because she was enrolled in the PIP on 15 May 2018 for a period of three months, which would only be completed on 15 August 2018, was still on going. Finally, whose decision it was that determined the Claimant's poor performance [23] Unfortunately, the evidence adduced in court, either by way of witnesses’ testimony or otherwise, did not provide any answers to the above questions. If at all, two persons could throw some light; one would be the Claimant's immediate superior Encik Romlan Sarpin. The other would be Mr. Surinderdeep Singh who issued the email that purportedly confirmed the Claimant in her position. They were not witnesses in this case. Hence, the questions remain without any answers. 9[24] Having said that, it cannot be over emphasised that the burden is ‘on the employer to satisfy the Court that the dismissal of a workmen is with just cause or excuse. From the evidence available before this court, the Company has not, on balance of probabilities discharged that burden. The failure to do so led to the inevitable conclusion that the Claimant's dismissal was without just cause or excuse H. DECISION [25] It cannot be over emphasised that the Industrial Court, in deciding disputes brought before it, is guided by equity, good conscience and substantial merits of the case without regard to technicalities and legal form. In addition, the Court also took guidance from the cases discussed above, Hence having been guided as such, the Court considered all the facts and evaluated the totality of the evidence and on balance of probabilities finds the Claimant's dismissal was without just cause or excuse. RELIEF [26] In contemplating the relief to be awarded, the Court is mindful that the sum to be awarded is not for the Claimant to be enriched. Neither it is to punish the Company for the wrongful dismissal. In addition, the Court also considered the duration of her employment with the Company. The Court further took into consideration the Claimant's ability to seekemployment after she was dismissed. Therefore, the Court makes the following award a. Three months back wages: 3 x RM4,300 = RM12,900 b. Three months’ wages compensation: 3 x RM4,300 = RM12.900 Total = RM25,800 The total sum of RM25,800 is to be paid by the Company directly to the Claimant after deducting the necessary statutory deductions, if any, within 30 days from the date of this award. HANDED DOWN AND DATED THis Ast DAY OF FEBRUARY, 2020.