Are Employers Required to Warn Their Probationers In Senior Roles about Their Poor Performance Before Dismissing Them?

Under our Employment Law, it is a settled rule that a probationer enjoys similar rights as a full-time employee. As such, you are not allowed to dismiss your probationer without “just cause and excuse”. Having said that, “poor performance” during the probation period can be accepted as just cause and excuse for dismissal. “Poor performance” is when the probationer’s performance falls below the standard required to carry out their role effectively.

 

We have set out below some critical points for Employers to bear in mind as they navigate this complex issue.

 

Generally, it’s best practice for Employers to take the following steps before terminating its probationer for poor performance as outlined below:-

 

  1. Review the probationer’s poor performance against the required standards, explaining his or her perceived shortcomings from the management’s perspective;
  2. Give sufficient notice preferably in writings to the probationer about his or her poor performance;
  3. Provide sufficient opportunity for the probationer to improve;
  4. Show that despite the guidance and opportunity to improve, the probationer still fails consistently to perform his or her duties to an acceptable standard.

Accordingly, it is also essential in every case of poor performance for the Employer to consider at the outset whether any training, resources or other forms of support might be required to assist the probationer in achieving the required standards. This is something which should be discussed with the probationer and, if necessary, followed up during the performance assessment process.

 

In view of this, this gives rise to the question as to whether the ‘rules’ above apply to those probationers holding Senior Positions in the Company.

 

 

REQUIREMENT OF WARNING AND OPPORTUNITY TO IMPROVE MAY NOT BE REQUIRED WHEN DISMISSING A PROBATIONER ON SENIOR ROLES

In addressing this issue, our Courts seem to suggest that for those employed in senior management may by the nature of their jobs be fully aware of what is required of them, and fully capable of judging for themselves whether they are achieving that requirement. In such circumstances, the need for warning and an opportunity for improvement is much less apparent as compared to a probationer in junior roles.

 

Further, our Courts also recognize that warning or an opportunity to improve may not be required in cases where the inadequacy of the senior probationer’s performance is so extreme that may constitute an unfair burden on the business. Therefore, in such circumstances, such probationers can be dismissed without prior warnings.

 

In the case of Sitt Tatt Berhad v Ong Chee Meng [2004] ILJU 94, the Claimant was employed as a Senior Manager of Business Development with a salary of RM8,000 per month. The Industrial Court held that he was employed in a senior management position, and hence, the requirement for warnings are much less apparent. The Court opined that the Claimant was reasonably expected to know the demands of his job and the Company’s expectation of him. As such, the dismissal was justifiable.

 

Similarly, in the case of Chiew Foong Ngor v Tujuan Ehsan Sdn Bhd [2015] 1 ILJ 324, the Claimant was employed as a Finance Manager in the Company, and she was dismissed during her extended probationary period due to poor performance. The Court in that case held that she was holding a senior post and not a young probationer as she had 10 years’ working experience as a finance manager. Therefore, the Claimant need not be trained and counselled like a young probationer who joined the workforce for the first time.

 

EMPLOYERS ARE NEVERTHELESS ADVISED TO ADOPT A FAIR MECHANISM BEFORE DISMISSING SUCH PROBATIONERS

Notwithstanding the above, while it may not be a legal requirement to give warnings and guidance to probationers in Senior Roles (i.e. Head of Department, General Manager), it is still prudent for Employers to communicate the unsatisfactory performance to the said probationer before issuing any notice of dismissal. This is to protect the Company’s interest, as well as to put on record the justifications used to demonstrate that any termination done in the future, if any, is with just cause and excuse, and not tainted by mala fide intentions.

 

 

DisclaimerThis article is intended for general information and education purposes only and not to provide legal and professional advice. If you have any specific questions about Employment issues, please contact us today at info@chernco.com.my, or send us a direct message through the WhatsApp button on our website.

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