This case is uploaded into my blog to create a link for Meca Webinar participants to have a view on what Mr. Aneel David is talking about today.
P/S. This case was summarised by Mr. Aneel David and is posted here with permission.
KEDAH MARBLE SDN BHD v. JAAFAR MOHAMED  1 ILR 794
The Facts of the Case
Jaafar Mohamed (‘the Claimant”) joined the service of Kedah Marble (“the Company”) on 6 March 1993 as the Industrial Relations Manager with a monthly salary of RM5,500 and entitlement to a company car. His services were terminated on 15 April 1996 on the following grounds:
The Claimant alleged that the Company dismissed him without giving him an opportunity to be heard or seek further clarification and thus brought his claim before the Industrial Court.
The Company began issuing the Claimant with general show cause letters. The Claimant replied to the final show cause letter.
The Claimant said that he did not reply to the earlier show cause letters because he felt he was being victimised and the Company was biased and not impartial.
The Claimant said he was required to travel on work-related matters early in the morning and so he could not punch his punch card. This piece of evidence was accepted by the General Manager of the Company. She in her evidence said, “if the duty demands he should go”.
The Claimant had stated that although his letter of appointment required him to punch card he had the permission of the former general manager not to punch the punch card and the matter was considered closed. However the Company’s new General Manager decided to pursue this matter vigorously and demanded that the Claimant give her a written explanation.
The Company did not produce the former general manager in court to rebut the evidence of the Claimant. Thus it was found that the Claimant had a valid reason for not punching his card and so the charge of ‘insubordination’ failed.
It was also found that the General Manager admitted that she and another manager were also not punching the card regularly and were late for work every day, but no action was taken against them.
The Court held that it is a basic principle of industrial law that in a dismissal case the employer must produce convincing evidence that the workman committed the offence or offences the workman is alleged to have committed for which he has been dismissed. The burden of proof lies on the employer to prove that he has just cause and excuse for taking the decision to impose the disciplinary measure of dismissal upon the employee. The just cause must be a misconduct, negligence or poor performance based on the fact of the case.
As far as poor performance is concerned the Industrial Court has set down that in order to justify the dismissal of the Claimant on this ground, the Company has to establish that:
i. the Claimant was warned about his poor performance;
ii. the Claimant was accorded sufficient opportunity to improve; and
iii. notwithstanding the above the Claimant failed to sufficiently improve his performance.
Though the opinions of the superiors deserve consideration in a case of dismissal for poor performance they are not of much value unless supported by objective evidence. Any superior can testify that in his opinion or judgement an employee has performed poorly. In this respect, the Company had not provided any concrete evidence to support their charge of ‘poor performance’ or that he was given time to improve and that he had failed to sufficiently improve despite being given time to improve.
The General Manager had in her letter to the Claimant stated that due to the organisation of the Company and seniority of his position she was unable to hold a Domestic Inquiry (DI) to judge his case and proceeded on her own and passed judgment on the Claimant.
The Claimant had insisted that he wanted a DI but the Company refused. The Court held that she could have appointed a few senior personnel from a subsidiary company as panel members to hold a DI.
Though not holding domestic inquiry is not fatal to the case, as it is only an irregularity, in this instance the General Manager could have arranged for one as the Claimant had insisted for it.
For the above said reasons, the Court arrived at the conclusion that the dismissal of the Claimant by the Company was without just cause and excuse.
In dealing with staff at any level, it is imperative that rules be adhered to and be applied evenly or else allegations of bias, favouritism and victimisation can be fatal to an employer’s case.
In addition to regular Performance Appraisals, details of an employee’s failure to meet targets and goals set in his “Performance Improvement Plan” (PIP) or Project Monitoring Reports would provide concrete evidence to substantiate a ‘poor performance’ charge.
The Court in this case clearly held that the opinion of a superior about his direct report’s performance does not have much evidentiary value. What is needed is some measurable and demonstrable proof of the employee’s poor performance.