Criminal Breach of Trust (CBT)

The fundamentals of the employer-employee relationship is based on the principals of fiduciary trusts.

When the basic fundamental of the relationship is breached by either party, then there is sufficient excuse or reason for the relationship to end i.e. employment.

Action by an employee that will be categorized as a misconduct that is also in breach of the relationship will justify for a summary dismissal from the employment.

Misconducts such as acts of fraudulent, forgeries and theft will cause the Company to lose faith and confidence on an employee that warrants for immediate release of employment, that is DISMISSAL. Such criminal in nature acts are also categorized as Criminal Breach of Trust (CBT) that also prosecutable under the criminal law.  

In the Industrial Court case of SOIL DYNAMICS (M) Sdn. Bhd. v. YONG FUI KIEW [2005] 2 ILR 817:

"... the relationship between an employer and an employee is of a fiduciary character and if the employee does an act which is inconsistent with the fiduciary relationship then it will be an act of bad faith for which his services can be terminated”.

Also in the case of Court of Appeal of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 (“Telekom case”) clearly stated the standard of proof required to be met even where criminal related misconducts are concerned. The Court of Appeal in the Telekom case held as follows:-

“Thus, we can see that the preponderant view is that the Industrial Court, when hearing a claim of unjust dismissal, even where the ground is one of dishonest act, including “theft”, is not required to be satisfied beyond reasonable doubt that the employee has “committed the offence”, as in a criminal prosecution …”.

Similarly should the act of Criminal Breach of Trust (CBT) were reported to the authority, criminal proceeding of the act will take place and the court may impose a much heavier punishment such as the reported case of the Sessions Court attached with this email where the court has ordered rotan lashes to a CBT case of an employee from a MNC as reported by the RakyatPost here.  

Insubordination

Uttering or even verbally threatening another employee or to make things worse, to one's superior is a major misconduct. Some may say that they did not mean what they say but still, the incident has happened. Such act is also consider insubordination, as the said action is not a required or desired action of an employee of any company. 

Briefly, abuse is not limited to physical assault but verbal assault as well. Especially threatening statement that is seen to be a gross misconduct that risks others’ safety.

And on the grounds of insubordination, an employee MUST NOT disobey any legal instruction which is also considered as gross misconduct.

Another case cited is Ngeow Voon Yean v. Sungei Wang Plaza Sdn. Bhd/Landmarks Holdings Bhd. [2006] 3 ILR 1717 where the court stressed –

“From the case law, it is clear that the duty of obedience is confined to compliance with the lawful and reasonable orders of an employer and as such the concept of an order being manifestly wrong has no part in the doctrine of superior orders. To that extent the Court of Appeal erred when it made an exception to the general rule on superior orders when stating that an employee is entitled to disobey the orders of his superior if he, the employee, is aware that such orders are manifestly wrong. However, that exception holds good in military or criminal law as seen from the case of PP v. Tengku Mahmood Iskandar [1973] 1 LNS 124; [1973] 1 MLJ 128 where it was held that "a soldier is not protected where the order is grossly illegal."

Repeat of the Similar Misconduct / Nature of Misconduct

Recorded through Industrial Court proceeding in the case of Kamala Loshanee a/p Ambalavanar v Jaffnese Co-Operative Society [1998] 7 MLJ 61, the Court held that past misconducts of a similar nature may justify dismissal. It states as follows;

"In my judgment, past misconduct is a relevant factor to be taken into consideration. If there is a repetition of similar acts of misconduct, the cumulative effect may justify dismissal.....  The message to the applicant was very clear indeed that the warning was a final one. Unfortunately, the applicant did not heed it. The previous warnings could not be considered as 'spent' even though the final warning was issued some 12 years prior to the incident. Since the final warning was breached by the applicant's misconduct, the respondent society could not be expected to overlook the past bad record of the applicant and to confine itself to the particular incident of this case".

As such, the idea of enforcing disciplinary action through graduate punishment application is fairly encouraged by the court in the case of Balan NG Krishnan v. Indah Water Operations Sdn Bhd [2001] 3 ILR:

“…. The court is therefore uncertain as to whether the Company has its own scheme of graduated punishments which can be meted out appropriately in instances where disciplinary action is taken against its employees. If it does not have such a scheme then perhaps it is timely for the Company to consider introducing one. …. In conclusion, while the claimant’s misconduct warrants certain disciplinary action to be taken against him, it does not constitute just cause or excuse to warrant the Company’s action of dismissing him”.

By applying graduate punishment, the disciplinary action meted out will gradually increase i.e. Reminder > Caution > Warning > Serious Warning. Nonetheless, the application of graduated punishment depends on the gravity and severity of the misconduct where there is always a thin line separating minor and major misconduct which is a never ending discussion. Any other disciplinary action/punishment other than the ones mentioned i.e. suspension without pay, stoppage of increment and/or bonus, demotion etc is applicable upon a Domestic Inquiry session. 

Under Performing Employees / Probationer

Briefly, managing a probationer and non-performer should be as the following guideline 

1. The probationer must be informed of his weaknesses;
2. He must be warned for underperforming; and
3. He must be given reasonable period for him to improve.

Therefore, upon completion of the PMS of mid-year review, the employee must be warned and informed of his weaknesses.

Failure of doing so will indicate and portrait that the employer is condoning his underperformance by not doing anything about it.

The most important thing of all, is the appraisal rating score MUST reflect what actually is happening or the actual performance of the employee. 

The quoted case of James v. Waltham [1973] IRLR 202 in dealing with non-performer, it was held as follows:

“If an employee is not measuring up to the job, it may be because he is not exercising himself sufficiently or it may be because he really lacks the capacity to do so. An employer should be very slow to dismiss upon the ground that the employee is incapable of performing the work which he is employed to do, (1) first telling the employee of the respects in which he is failing to do his job adequately, (2) warning him of the possibility or likelihood of dismissal on this ground, and (3) giving him an opportunity of improving his performance. But 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. Again, cases can arise in which the inadequacy of performance is so extreme that there must be an irredeemable incapability. In such circumstances, exceptional though they no doubt are, a warning and opportunity for improvement are of no benefit to the employee and may constitute an unfair burden on the business.”

In another case of Ireka Construction Berhad v. Chantiravathan Subramaniam James [1995] 2 ILR 11. In the said case, the learned Chairman has stated:

“It would appear ... that a written warning by the company is essential before it can dismiss the claimant on the ground of poor performance. In the instant case it is not disputed that the claimant was never given a written warning but the company alleges he was given oral warnings which were adequate. That being so, the burden lies on the company to adduce convincing and compelling evidence to prove this.”

Any known act of misconduct, immediate action must be taken against the employee upon knowledge of the misconduct even if the misconduct had happened months (or even years) before it surfaced. Failure to take disciplinary action (or any other action) against the employee shall be deemed as an act of condonation the Company choose not to punish or pursue the alleged misconduct. It is ALWAYS the burden of the Company to prove that the employee has indeed carry out the misconduct and NOT the employee to prove that he/she is guilty of the charge(s).

As the learned Chairman stated in Stamford Executive Center v. Puan Dharsini Ganesan (1986) “The employer must prove the employee guilty and it is not the employee who must prove himself not guilty”.

Master-Servant Relationship

Any known act of misconduct, immediate action must be taken against the employee upon knowledge of the misconduct even if the misconduct had happened months (or even years) before it surfaced. Failure to take disciplinary action (or any other action) against the employee shall be deemed as an act of condonation the Company choose not to punish or pursue the alleged misconduct. It is ALWAYS the burden of the Company to prove that the employee has indeed carry out the misconduct and NOT the employee to prove that he/she is guilty of the charge(s).

As the learned Chairman stated in Stamford Executive Center v. Puan Dharsini Ganesan (1986) “The employer must prove the employee guilty and it is not the employee who must prove himself not guilty”. 

The quoted case of James v. Waltham [1973] IRLR 202 in dealing with non-performer, it was held as follows:

“If an employee is not measuring up to the job, it may be because he is not exercising himself sufficiently or it may be because he really lacks the capacity to do so. An employer should be very slow to dismiss upon the ground that the employee is incapable of performing the work which he is employed to do, (1) first telling the employee of the respects in which he is failing to do his job adequately, (2) warning him of the possibility or likelihood of dismissal on this ground, and (3) giving him an opportunity of improving his performance. But 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. Again, cases can arise in which the inadequacy of performance is so extreme that there must be an irredeemable incapability. In such circumstances, exceptional though they no doubt are, a warning and opportunity for improvement are of no benefit to the employee and may constitute an unfair burden on the business.”

In another case of Ireka Construction Berhad v. Chantiravathan Subramaniam James [1995] 2 ILR 11. In the said case, the learned Chairman has stated:

“It would appear ... that a written warning by the company is essential before it can dismiss the claimant on the ground of poor performance. In the instant case it is not disputed that the claimant was never given a written warning but the company alleges he was given oral warnings which were adequate. That being so, the burden lies on the company to adduce convincing and compelling evidence to prove this.”

Salary Payment During Police Detention

Kita termakan pujukan kawan-kawan untuk join demonstrasi BERSIH 2.1 dan unfortunately nasib kita tak baik, dan kita telah ditangkap oleh pihak berkuasa kerana menyertai perhimpunan haram. Or kiat jalan-jalan di hujung minggu dan kebetulan lalu di kawasan demonstrasi, nasib kita masih tak baik, kita berada di wrong place at the wrong time dan ditangkap oleh pihak berkuasa. Arahan tahanan reman untuk tujuan siasatan dikeluarkan dan kita telah ditahan selama 3 hari (contoh) untuk tujuan itu.

Nasib kita baik pula, kerana majikan tidak mengambil tindakan ke atas kita kerana tidak hadir bekerja. TAPI! Bila check gaji pada hujung bulan, nampak macam sikit. YA! Mmg sikit dari yang biasa sebab pada Seksyen 23, Akta Kerja 1955 jelas menyatakan –

S23. Wages shall not become payable to or recoverable by any employee from his employer for or on account of the term of any sentence of imprisonment undergone by him or for any period spent by him in custody or for or on account of any period spent by him in going to or returning from prison or other place of custody or for or on account of any period spent by him in going to, attending before or returning from a court otherwise than as a witness on his employer’s behalf.  

Malah, ada contoh-contoh quote cases yang boleh dijadikan panduan dalam perkara ini –

In MSAS Cargo International (M) Sdn. Bhd. v. Rajaratnam M.K. Rajan [1994] 2 ILR 1030 (Award No. 461 of 1994) where the court referred to “Industrial Court” by Smith & Wood, 4th edn at p. 309 as follows:

“Where the crime arises within the employment (the obvious example being theft or the employer’s property) the employer’s need to dismiss may appear to him to be more urgent, but at the same time the employee under suspicion must not be treated arbitrarily. The position as it has evolved (particularly since the decision of the EAT British Home Stores Ltd v. Burchell, approved by the Court of Appeal in W. Weddell & Co Ltd v. Tepper) is that the employer may dismiss if he has a genuine belief in the employee’s guilt, which is based upon reasonable grounds; he does not have to be able to prove the employee’s guilt and so provided the employer has his genuine belief it is irrelevant if the employee is later acquitted of the offence (or indeed if the police decline to bring charges).”

Bonus - is it employee's right?

Kerja setahun lengkap contoh pada tahun 2015, then pada tahun 2016 mengambil keputusan untuk letak jawatan sebab terima tawaran kerja baru. Bayaran bonus bagi keuntungan yang dibuat syarikat dibuat pada bulan May 2016, tapi anda meletak jawatan pada April 2016 bermaksud bila bayaran bonus dibuat, anda masih lagi pekerja syarikat. Tapi bila tiba masa, check akaun gaji NO BONUS! As an employee, can we bark at this? Whole 2015, kita bekerja penat lelah, siang malam untuk syarikat.

So, this is what the Industrial Court says –

In the case of UMW Toyota (M) Sdn. Bhd. v. Chow Weng Thiem [1996] 5 MLJ 678, the High Court held as follows:

“A bonus is a gift or gratuity as a gesture of goodwill, and not enforceable, or it may be something which an employee is entitled to on the happening of a condition precedent and is enforceable when the condition is fulfilled. But in both cases it is something in addition to or in excess of that which is ordinarily received. Since bonus was a form of gratuitous payment of a discretionary nature, the respondent was not entitled to it as of right.”

So, apakah maksudnya? Unfortunately, pembayaran bonus adalah sentiasa tertakluk kepada budi bicara syarikat walaupun sebagai pekerja, kita telah bekerja setahun penuh pada tahun sebelumnya. There’s nothing that we can do about it except to appeal to the payout which most of the time will be rejected. BONUS IS THE DISCRETION OF THE COMPANY! 

Hubungan Majikan - Pekerja

What is breach of fiduciary trust? What is fiduciary trust in principle?

Hubungan majikan-pekerja bolehlah disamakan dengan perkahwinan. Kedua-duanya bergantung pada tahap kepercayaan dan juga tolak ansur. But! Dalam marriage, sekiranya salah satu pihak menyebabkan hilangnya kepercayaan, maka ianya boleh di’selamat’kan atas dasar keyakinan dan kepercayaan pada satu sama lain, biasanya…

This is a simple way to describe fiduciary trust between employee and employer, basically the trust level that tie the two (2) parties together.

However it is opposite when it comes to employment! Once the trust is not there, there is no reason for the employer to retain such employee. Misconducts that are Criminal Breach of Trust (CBT), act of fraudulent (forgery/fraud), destruction or damage of company property and physical assault on fellow colleagues are some examples that I can quote.

Breach of trust is an act of major misconduct. Dengan melanggar peraturan dan membuat salahlaku di bawah kategori ini, pekerja telah menyebabkan majikan hilang kepercayaan kepada mereka.

Bayangkan, seorang pekerja bahagian kewangan menggunakan float money untuk membeli makan tengahari setiap hari pada setiap hujung bulan dan akan menggantikannya apabila gaji diterima.

Imagine pula, pekerja anda mengemukakan MC yang telah diubah untuk membolehkan mereka ‘bercuti’ lebih dari apa yang disahkan oleh doctor.

Now, how about an employee who physically assaulted another colleague that caused bodily harm and injury.

All the above are examples of misconducts that will cause the company to lose faith and confidence upon them. Yang membuatkan persoalan-persoalan ini timbul – apakah dia akan buat lagi? Can I trust him again? Is this the truth or is he lying again? Should I assign someone else to this task?

Bila keyakinan itu tiada, maka bermaksud majikan tidak mempunyai sebarang kepercayaan kepada pekerja untuk terus disimpan bekerja.

Apa tindakan anda sebagai majikan?

Terdapat steps or processes yang perlu dipatuhi bagi memastikan tindakan yang diambil adalah berlandaskan undang-undang yang ada –

i.              Meneliti fakta kes atau salahlaku

ii.             Memberikan surat tunjuk sebab dan penggantungan kerja

iii.            Menilai jawapan kepada surat tunjuk sebab

iv.            Menjalankan Sesi Siasatan Dalaman (Domestic Inquiry)

v.             Hukuman berdasarkan keperluan

Mengapa tindakan gantung kerja dibuat?

Penggantungan kerja ke atas pekerja dibuat di atas dua (2) dasar iaitu security dan safety.

Security – pekerja yang terlibat mempunyai akses kepada dokumen-dokumen syarikat dan risau apabila tidak digantung, segala dokumen yang boleh menyokong kes syarikat untuk membuktikan kes boleh dihapuskan

Safety – apabila pekerja yang terbabit mendatangkan risiko keselamatan kepada pekerja-pekerja lain di kelilingnya atas dasar keselamatan iaitu risiko diserang atau diherdik.

Penggantungan kerja seperti ini adalah dalam Seksyen 14(2) Akta Kerja 1955 yang menggariskan bahawa penggantungan kerja for inquiry reasons or investigation is limited to 14 days with half pay. But! Employee boleh sebenarnya menggantung pekerja melebihi 14 hari dengan syarat bayaran gaji penuh dibuat penuh bagi tempoh yang melebihi itu. Majikan juga perlu mengambil kira, bahawa tempoh munasabah adalah perlu untuk melengkapkan siasatan di atas salah laku yang dilaporkan.

Terdapat banyak kes contoh yang boleh digunakan untuk menunjukkan betapa pentinganya fiduciary trust on employees -

In AZAHARI SHAHROM & Anor. v. ASSOCIATED PAN MALAYSIA CEMENT Sdn. Bhd. [2010] 1 ILR 423 @ 436 this Court was of the view that:

“It is trite that the association between employer and employee out of necessity is fiduciary in nature. There has to be mutual trust and confidence that one would deal with the other in all fairness and rectitude over the rights and obligations flowing between the parties under the employment agreement. If one does an act or commits an omission which is inconsistent with that fiduciary relationship then that act or omission will be mala fides. This principle has equal application as against the employer and the employee in their respective positions viz. the employment relationship between them.”

In PEARCE v. FOSTER [1886] (17) QBD 536, Lord Esher MR observed:

“The rule of law is that where a person has entered into the position of servant, if he does anything incompatible with the due and faithful discharge of his duty to his master, the latter has the right to dismiss. The relation of master and servant implies necessarily that the servant shall be in a position to perform his duty and faithfully, and if by his own act he prevents himself from doing so, the master may dismiss him.”

SOIL DYNAMICS (M) Sdn. Bhd. v. YONG FUI KIEW [2005] 2 ILR 817:

"... the relationship between an employer and an employee is of a fiduciary character and if the employee does an act which is inconsistent with the fiduciary relationship then it will be an act of bad faith for which his services can be terminated.”

Esso Malaysia Berhad v. Chiang Lick Teck [2003] 2 ILR 716:

“The court endeavours very hard to consider the long service and unblemished track record of the Claimant. Notwithstanding that, the court is of the opinion that the claimant's long years of unblemished service do not immunise the claimant from dismissal”

Pantas Cerah Sdn. Bhd. v. Lau Boon Seng [1999] 3 ILR 216, it was held:-

“When an employer employs an employee, it is implied the employee will faithfully with loyalty and honesty further the interest of the employer. There is a fiduciary relationship between the employer and the employee. An employee, under the payroll of the employer should not do any act which causes detriment to the interest of the employer”.

      Sime Bank Bhd v. Mohd Shaib Md Yusof [2003] 2 ILR 530:

      “The dishonest act of the claimant in submitting the false medical receipt has breached the fiduciary       relationship of trust between the bank and the claimant.”

Zulkipli Abdul Latif v Sistem Penerbangan Malaysia Bhd (2006) 3 ILR 1923 (Award No. 1438 of 2006), the Industrial Court held :

".............  Honesty  and  integrity  are  virtues  that  cannot  be compromised  in  an  employee  no  matter  what  position  he  holds  in  an organization.  In the instant case the Claimant had, by his acts of misconduct, not only acted against interest of the Company........  since  the  Claimant misconduct marred the trust and confidence that the Company had in him, the Company was right in taking the said virtues into account beside the nature  and  gravity  of  the  misconduct  committed  when  impossing  an appropriate punishment on the Claimant in the circumstances of the instant case."

In the case David Sien Hong Kong v Inchape Malaysia Sdn Bhd (1980) MLLR 101 the Industries Court held :

The management considered quite reasonably that it was unsafe for the Company to continue the Claimant in employment for he was found to have become so unfaithful as to be detrimental to the Company's business. This Court agrees that an employee in the responsible position of the Claimant owed a duty of fidelity to the employer at all times, even during his spare time at the office .....

AWOL - Absent without Leave (from work)

What happens when your staff decided not to turn up to work at all? Hilang tanpa dikesan, AWOL – Absent Without Leave!

Ada klausa Akta Kerja 1955 khas untuk kes seperti ini. Seksyen 15(2) Akta Kerja 1955, berkaitan ketidakhadiran pekerja tanpa sebab atau tanpa sebaran makluman. Terbaca seksyen ini –

“An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence”

Aplikasi cuti juga kerap disalahfaham pekerja, kelayakan cuti tahunan pekerja hanyalah kelayakan semata-mata dan bukanlah hak pekerja indefinitely!

Dengan menggunakan bilateral approach, cuti adalah kelayakan pekerja dan hak majikan. Hak majikan adalah kerana majikan mempunyai hak untuk melulus atau menolak permohonan cuti pekerja atas apa jua alasan-alasan. Kerana itulah bilateral dan bukanlah unilateral apabila cuti ini diperbualkan.

Ada juga yang confuse, Cuti Sakit atau MC juga dijadikan sebagai hak. Sama seperti Cuti Tahunan, Cuti Sakit juga menjadi hak majikan untuk melulus atau menolak. Tapi kebiasaannya, kebiasaannya majikan akan meluluskan MC atas sebab perikemanusiaan. Majikan juga ada hak untuk memanggil balik pekerja yang sedang bercuti atau sakit untuk menyiapkan kerja penting yang belum siap. Tapi atas dasar kemanusiaan dan ketimuran, kita tidak akan ganggu orang-orag yang bercuti.

TIga (3) kes berikut adalah contoh berkaitan cuti dari Mahkamah Perusahaan dan Mahkamah Persekutuan -

Metromix Sdn. Bhd v. Ismail Sulaiman (1996) 1 ILR 336, the Industrial Court held that:

“In cannot be denied a workman's leave is granted according to the exigencies of his service. Leave cannot be claimed as of right and the employer reserves the discretion to refuse or revoke leave. It, therefore, connotes the necessity of obtaining permission from his employer relieving him from the obligation of attending his work. Unless the permission or leave required is granted, the workman seeking leave cannot absent himself from work. Until and unless a workman's leave is approved by the proper approving authority he runs the risk of being absent without leave and in breach of statutory provision in the Employment Act.”

In Pan Global Textiles Bhd. v. Ang Beng Teik [2002] 2 MLJ 27, the Federal Court ruled no employee could claim as a matter of right leave of absence without permission and that remaining absent without any permission was gross violation of discipline, which constitute misconduct justifying the discharge of a workman from service. In so ruling, the Federal Court held as follows:-

 “No employee can claim as a matter of right leave of absence without permission and when there might not be any permission for the same. Remaining absent without any permission is, therefore, gross violation of discipline … (emphasis added).

Pan Global Textiles Bhd. Pulau Pinang v. Ang Beng Teik, supra where it was held:

“The Industrial Court had also erred in law and in jurisdiction for having held that there was a dismissal without just cause or excuse of the respondent's services with the applicant company when there was in fact and in law no dismissal. It is settled law that unless there is a sufficiently important breach of contract by the employer and the employee's action is in direct response to the employer's breach, an employee who leaves his work will be held to have resigned and there will be no dismissal within the meaning of the employment legislation. It is clear that in this case it was the respondent who had refused to report for work and by that had evinced an intention of not wanting to continue his employment with the applicant. This being so the letter of the applicant dated 6 June 1989 ought to be taken as an acceptance of the repudiation of the contract of employment. The respondent, by his failure to report for work, had dismissed himself and the question of whether the “dismissal was without just cause or excuse by his employer” did not arise”. (emphasis added)

Mengurus Pekerja dalam Percubaan (Probationer)

Are you a probationer? What is your right as a probationer?

Apakah hak-hak anda sebagai pekerja yang dalam tempoh percubaan?

Tiada apa-apa spesifik yang dinyatakan dalam Akta Kerja 1955 yang menggariskan panduan untuk pekerja dalam tempoh percubaan kecuali contoh-contoh atau petikan kes mahkamah.

Petikan dari kes Mahkamah Perusahaan, antara Lim Chiew Seng Vs. Jobstreet.Com Sdn. Bhd. Award (NO: 1360 OF 2013) dipetik

“As we know it to be there is no specific law in our country governing the status of a probationer except that which stems from the decided cases. As a result confirmation of a person engaged on probation as in the case of the Claimant often raises baffling problems. Absence of timely action on the part of the employer also throws up many ticklish issues. A probationer who is engaged on trial basis to prove his suitability for permanent absorption does not get a substantive status until he is confirmed. The decision to retain or not to retain must be based on an unbiased and objective consideration of the probationer's performance and behaviour and should not be a cloak for an order of punishment.”

Petikan kes di atas memberikan panduan bahawa memang tiada apa-apa akta atau peraturan yang menjelaskan kedudukan seorang pekerja dalam tempoh percubaan. Malah, beban atau tanggungjawab adalah terletak pada majikan untuk memastikan tindakan yang diambil mestilah pada kadar yang segera dan timely (tanpa berlengah).

Secara ringkasnya juga, sebagai majikan atau penyelia kepada pekerja dalam kategori ini, peranan hendaklah dimainkan secara berterusan dalam memastikan all these grounds are covered –

i.              Panduan dan bimbingan secara berterusan untuk memastikan pekerja dapat pengetahuan yang berkaitan untuk menjalankan tugas mereka

ii.         Komunikasi secara jelas serta peringatan demi peringatan BEREKOD diberikan kepada pekerja untuk mengenalpasti areas of improvement yang perlu diperbaiki untuk memastikan mereka memenuhi kriteria untuk disahkan dalam jawatan yang dilantik

iii.         KPI, KRA atau sasaran kerja yang realistik, tercapai (achievable) and munasabah (reasonable) dimaklumkan secara jelas dan terang kepada pekerja pada awal bermulanya pekerjaan mereka

Terdapat beberapa kes contoh dari Mahkamah Perusahaan yang boleh dibuat rujukan berkaitan dengan status percubaan (probationer) –

Dari kes Grand Banks Yachts Sdn. Bhd. V. Komander (B) Teng Tiung Sue (supra) where the learned Chairman Mr. John Louis O’Hara had this to say:

“…. As long as the company makes known to the claimant his short comings, inefficiencies and instances of unsatisfactory and poor performance in a proper, coherent and cogent manner, thereby ensuring procedural fairness, this court will regard the company as having met the test.”

Dalam kes IRC, antara NADA PAKAR Sdn. Bhd. v. RADJA ARITONANG (supra):  

“The probationer whose service has been terminated without the benefit of being given a fair opportunity to prove himself and/or the benefit of a fair process of assessment has lost the opportunity to establish himself in permanent employment with the employer or another employer elsewhere. He had as it were squandered his time with the employer who had not given him a fair bash at proving himself at the position and setting him off on his chosen career path.  This,  in  the  absence  of  other  factors  (some  of  which  have  been  set  out hereinbefore), which might constitute an exception to the general proposition, is the loss for which the probationer ought to be compensated. As adverted to previously, the practice of awarding compensation under the usual heads of back wages and compensation in lieu of reinstatement which is relevant to the confirmed employee on permanent employment can have no logical basis in the case of a probationer where no exceptional circumstances exist to justify the court dealing with this matter on the basis that he is a confirmed employee.”

Tapi seperti mana terma-terma lain pekerjaan di Malaysia, tiada yang hitam putih dalam garispanduan akta. Malah banyak lagi yang masih kelabu atau grey areas yang diinterpretasi dengan panduan kepada Mahkamah Perusahaan.

Garispanduan di atas tidak terpakai sekiranya pekerja yang dalam percubaan ini adalah dalam peringkat pengurusan (management).

James v. Waltham Holy Cross UPC [1973] IRLR 202 dealt with those employed in senior management held as follows:

“If an employee is not measuring up to the job, it may be because he is not exercising himself sufficiently or it may be because he really lacks the capacity to do so. An employer should be very slow to dismiss upon the ground that the employee is incapable of performing the work which he is employed to do, without first telling the employee of the respects in which he is failing to do his job adequately, warning him of the possibility or likelihood of dismissal on this ground, and giving him an opportunity of improving his performance. But 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. Again, cases can arise in which the inadequacy of performance is so extreme that there must be an irredeemable incapability. In such circumstances, exceptional though they no doubt are, a warning and opportunity for improvement are of no benefit to the employee and may constitute an unfair burden on the business.”