there is no evidence to support the conclusion reached. (See Swedish Motor Assemblies Sdn Bhd v. Hj. Md Ison Baba [1998] 3 CLJ 288 ]. [19] It is clear from the above authorities that the scope and ambit of Rama Chandran had been clearly explained and clarified. Decided cases cited above have also clearly established that where the facts do not support the conclusion arrived at by the Industrial Court, or where the findings of the Industrial Court had been arrived at by taking into consideration irrelevant matters, and had failed to consider relevant matters into consideration, such findings are always amendable to judicial review”. (emphasis added) [10] Bearing the principles enunciated in Ranjit Kaur’s case, I will now deal with the core issue raised by the Applicant, that is, whether he was terminated without just cause and excuse and whether he was simply not confirmed in his post by his employer. [11] In the Award, the Industrial Court made the following findings: “[47] The Claimant was a probationer and it was for him to prove to the Company that he was fit for the post for which he has offered his service. Hence he 9 remained a probationer until he was confirmed by the Company. From the totality of the evidence adduced, it is apparent to the court that he had failed in all aspects which the Company has set out in the Claimant’s non confirmation letter… [48] The Claimant who was a senior officer of the Company had been given opportunities to improve on his performance. The issue of his tardiness was evident even before COW1 joined the Company and the reasons he had given were interesting and wide-ranging but had related to personal matters. He was issued warning letters but was also given advice by his superiors and the CEO. They had given him time and opportunity to improve on his performance (though as part of the senior management, that wasn’t really necessary) and attitude but in the words of the Company, his performance and attitude had deteriorated over time. [49] The court has not found any evidence that the Company was not acting bona-fide when it decided not to confirm the Claimant’s employment. There is nothing to indicate that COW1 had victimized the Claimant or the prevalence of any unfair practice. The court holds the view that the Company was justified in terminating the Claimant’s employment without 10 confirming him. The non-confirmation of the Claimant was therefore with just cause and excuse.” (emphasis added) [12] I am of the considered opinion that there is nothing wrong with the Industrial Court’s findings as the Company has the legal right to terminate the applicant’s service at the end of the probationary period if the Applicant did not meet the standards set by the Company. In this case, the Industrial Court found that the Applicant was not confirmed in his position as he did not meet the standards set by the Company. [13] In the case of Robert John Reeves v. Menteri Sumber Manusia, Malaysia & Anor [2000] 1 MLJ 107, the Court held that upon an employer’s evaluation that a probationer had not performed satisfactorily, the employer was entitled to terminate the probationer’s service. The Court held at page 122: “Therefore in the instant case at the end of the applicant’s probationary period, it was open to the second respondent either continue or discontinue the services of the applicant. The applicant, by virtue of being a probationer, had no say in the matter and the second respondent, as the employer, was fully entitled to terminate his services upon their evaluation that he did not perform his job functions satisfactorily. If it was otherwise, there would be no 11 distinction between probationary employment and permanent employment...” (emphasis added) [14] The Federal Court in KC Mathews v. Kumpulan Guthrie Sdn Bhd [1981] CLJ (Rep) 62 had quoted with approval the principle laid down in the case of Express Newspaper (P) Ltd v. Labour Court & Anor AIR [1964] SC 806 where it was held: “There can, in our opinion, be no doubt about the position in law that an employee appointed on probation for six months if at the end of the period his services had either not been terminated or he is confirmed. It appears clear to us that without anything more an appointment on probation for six months gives the employer no right to terminate the service of an employee before six months had expired – except on the ground of misconduct or other sufficient reasons in which case even the services of a permanent employee could be terminated. At the end of the six months’ period, the employer can either confirm him or terminate his services, because his service is found to be unsatisfactory. If no action is taken by the employer either by way of confirmation or by way of termination, the employee continues to be in the service as a probationer.” (emphasis added) 12 [15] However, it is the contention of the Applicant that since the Company did not adopt the specific form for his non-confirmation or emplacement on the Performance improvement plan, then this amounts to a good ground to nullify the Applicant’s non-confirmation in the Company’s employment. [16] I am of the considered opinion and I agree with the findings of the Industrial Court that what is more important is that there was a fair assessment by the Company, not so much of mere adherence to format. Therefore, I find that the Industrial Court is correct in its findings that: “It must be emphasized that even if there is a specific format to be adopted (which the Company had denied), the failure to adopt the same would not have automatically rendered a fair dismissal, unfair. In this instance, the non confirmation of the Claimant’s employment could not become invalid if it was merely by virtue of non confirmation to specific formats which the Claimant had insisted the Company had to comply. In the court’s view, those would have come under the purview of non-compliance with procedures which had not prejudiced the Claimant. What was imperative was a fair assessment by the Company.” (emphasis added) 13 [17] I agree with learned Counsel for the Company that the Industrial Court on examining the evidence before it found no fault with the Company’s action. Notwithstanding that the Applicant was in senior management and hence should not require handholding and detailed supervision, he was nevertheless counselled and the Company’s dissatisfaction was raised with him. Therefore, the Industrial Court was correct in its finding on the evidence given and that the assessment of performance does not have to be in a prescribed format in order for an appraisal to have been undertaken. Conclusion [18] Having considered the application and the submission of the parties, I find that there is no merit in this application and the same is dismissed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 25 June 2018 14 For the Applicant : V.K. Raj Messrs P. Kuppusamy & Co. Kuala Lumpur. For the 1st Respondent: Suganthi Singam Messrs Shearn Delamore & Co. Kuala Lumpur. Cases referred: