JAZULI WILAKSONO SUNARTO v. SLDB MANAGEMENT SDN BHD
INDUSTRIAL COURT, SABAH
INDRA AYUB
AWARD NO. 2154 OF 2023 [CASE NO: 17-4-1021-21]
25 OCTOBER 2023

Abstract – The Industrial Court is not clothed with the jurisdiction to adjudicate on a matter where the real and actual party is not named as the party to an action. An award cannot be handed down and shall not be binding against a party that is not made a party to a suit.

INDUSTRIAL COURT: Jurisdiction – Claim for unlawful termination – Real and actual employer of claimant when he was terminated – Whether claimant’s real and actual employer made party to action – Whether Industrial Court seized with jurisdiction to hear matter – Whether Industrial Court could give award against party that was not made party to suit – Whether award by Industrial Court could be binding to non-party – Industrial Relations Act 1967, ss. 32(1)(a) & 52(1)

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TENGKU YUSRI TENGKU YAACOB v. MALAYAN BANKING BERHAD (MAYBANK)
INDUSTRIAL COURT, KUALA LUMPUR
PARAMALINGAM J DORAISAMY
AWARD NO. 2257 OF 2023 [CASE NO: 22-4-1026-22]
20 NOVEMBER 2023

Abstract – Before dismissing an employee for incompetence, the employer should first provide feedback on their performance, warn them of the potential for dismissal and provide them a chance to improve. However, employers of a senior ranking or position are different; senior managers are typically well-versed in their job requirements and self- aware enough to assess their own performance, making warnings and improvement opportunities less necessary in their case.

LABOUR LAW: Employment – Dismissal – Poor performance – Employee performed below minimum expectation – Employee given eight chances and opportunities to improve – Employee continued to perform poorly – Whether employee fully aware of what was required of him – Whether employee fully capable of judging himself whether he was performing satisfactorily – Whether employee had been warned by employer about his poor work performance and attitude – Whether employee accorded sufficient opportunity to improve on work performance – Whether employee failed to sufficiently improve on work performance despite opportunity given by employer – Whether dismissal done with just cause and excuse – Whether dismissal tainted with mala fide

CIVIL PROCEDURE: Trial – Language – Claim at Industrial Court – Claimant dismissed from employment due to poor performance – English language used throughout examination-in-chief, cross-examination and re-examination – Allegation by claimant that he was prevented from using Bahasa Melayu in court during trial – Court recording system by Industrial Court – Industrial Court Practice Note No. 1 of 2013 – Whether, since witnesses had taken oaths in English and testified in English, cross-examination and re-examination would have to be conducted in English

Award	Parties	Citation	Links
2113/2023	Kesatuan Pekerja-pekerja Perkilangan Perusahaan Makanan v. Etika Dairies Sdn Bhd [Case No: 6-3-973-22]	[2023] 4 ILR 437
2154/2023	Jazuli Wilaksono Sunarto v. SLDB Management Sdn Bhd [Case No: 17-4-1021-21]	[2023] 4 ILR 444
2163/2023	Suresh Veerasamy v. Venator Asia Sdn Bhd [Case No: 18-4-1044-21]	[2023] 4 ILR 457
2184/2023	Putera Amirul Afiq Zulkefli v. IOI City Mall Sdn Bhd [Case No: 4-4-1889-21]	[2023] 4 ILR 489
2214/2023	Muhammad Syafiq Izwan Mohd Yunos v. Mulia Property Development Sdn Bhd [Case No: 3-4-1115-20]	[2023] 4 ILR 504
2229/2023	PB Ashok PB Krishnan Pillai v. Cyberlynx International Sdn Bhd [Case No: 14-4-2125-20]	[2023] 4 ILR 521
2247/2023	Tan Siew Yong v. Asian Pottery (Penang) Sdn Bhd [Case No: 9-4-2283-21]	[2023] 4 ILR 543
2251/2023	Yong Chooi Kim v. Hengshenda Group Bhd [Case No: 11-4-1461-22]	[2023] 4 ILR 574
2257/2023	Tengku Yusri Tengku Yaacob v. Malayan Banking Berhad (Maybank) [Case No: 22-4-1026-22]	[2023] 4 ILR 583
2265/2023	Faisal Machmud v. CMS I-Systems Sdn Bhd [Case No: 8/4-894/2]	[2023] 4 ILR 600
2279/2023	Yap Kit Seong v. Inti IABS Sdn Bhd [Case No: 7-4-1002-22]	[2023] 4 ILR 610
2306/2023	Ponusamy Podian lwn. Rimbaran Sdn Bhd [No. Kes: 21-4-1280-22]	[2023] 4 ILR 627
2312/2023	John Chiew Siew Kiong v. Persatuan Pemeliharaan Pendidikan Tiong Hua Malaysia [Case No: 19-4-1390-20]	[2023] 4 ILR 637

SUBJECT INDEX

"Here are some key points to consider regarding the termination of an employee during the probationary period: (i) probationary period agreement: it is essential to have a clear employment contract or offer letter that outlines the terms of the probationary period, including the duration and any specific conditions. This agreement should also specify the rights of both the company and the claimant during this period. (ii) performance feedback: the company should provide regular feedback to the employee during the probationary period. This helps the claimant understand expectations and areas for improvement. Documenting performance issues and discussions can be valuable if termination becomes necessary. (iii) reasons for termination: the company should have valid and documented reasons for terminating an employee during the probationary period. This could include issues related to job performance, behaviour, or a mismatch between the employee's skills and the requirements of the position. (iv) communication: it is important to communicate the decision to terminate the claimant professionally and respectfully. Clearly explain the reasons for the termination and any steps taken to address performance concerns during the probationary period. (v) legal compliance: while termination during the probationary period is generally easier, the company must still adhere to employment laws and regulations. Be aware of any specific legal requirements in the company's jurisdiction regarding probationary periods and termination. (vi) final pay and benefits: ensure that the terminated claimant receives any final pay." - Per Zalina Awang in John Chiew Siew Kiong v. Persatuan Pemeliharaan Pendidikan Tiong Hua Malaysia [2023] 4 ILR 637