Employment & Labour Law

Yap Gin Leong v Hotel Grand Paragon Sdn Bhd

Citation: Award No. 798 of 2019; Date of Judgment: 27 February 2019; Name of Court: Industrial Court; Source: Industrial Court

INDUSTRIAL COURT OF MALAYSIA

CASE NO: 16/4-966/17

BETWEEN

YAP GIN LEONG

AND

HOTEL GRAND PARAGON SDN. BHD.

AWARD NO. 798 OF YEAR 2019

BEFORE: YA PUAN SUMATHI MURUGIAH - CHAIRMAN (SITTING ALONE)

Venue: Industrial Court of Malaysia, Johor Branch

Date of Reference: 02.08.2017.

Dates of Mention: 13.09.2017; 04.10.2017; 08.11.2017; 12.12.2017; 14.02.2018; 30.07.2018.

Dates of Hearing: 24.09.2018; 16.10.2018; 18.10.2018; 21.10.2018; 19.11.2018.

Reference:

The reference under Section 20(3) of the Industrial Relations Act 1967 by the Honourable Minister of Human Resources Malaysia, is regarding the dismissal of Yap Gin Leong (“the Claimant”) by Hotel Grand Paragon Sdn. Bhd. (“the Company”) on 30.11.2016.

AWARD

Brief Facts

[1] The Claimant was appointed as an Executive Chef by the Company vide its letter of appointment dated 27.06.2016 (the first letter). The commencement date of employment in accordance to the first letter was 01.09.2016.

[2] Based on the Claimant's request, the Company agreed for the commencement date of employment to be 22.08.2019 instead of 01.09.2016.

[3] The Claimant's work performance was assessed by the then acting General Manager, Yeo Siu Ling (COW-1) on 22.11.2016 for the purpose of confirmation of probationary period.

[4] Vide the Notice of Termination dated 22.11.2016, the Company terminated the contract of service of the Claimant on the grounds of poor performance.

The Company's Case

[5] The Company is registered under the Companies Act 1965 and is in the business of running a hotel, restaurant and cafe.

[6] The Company confirms that the Claimant's employment as an Executive Chef commenced on 22.08.2016 based on the Claimant's request and the first letter had been amended accordingly.

[7] The Company contends that the first letter had an error on the probationary period wherein the first letter had reflected the probationary period as “three (6) months” and the error was amended to read as “three (3) months”. The amendments were initialled by the Company's Group Manager Human Resource, Sangeetha a/p S. Amayappan (COW-2) as evidenced in the Company's Bundle of Documents (COB1) at page 1.

[8] The Company contends that the Claimant had attended an orientation session on 14.10.2016 organized by the Company's Human Resource Department where the Claimant was informed that the duration of the probation period was for three (3) months from the date of commencement.

[9] According to the Company, the Claimant had represented to the Company via his application that he had extensive working experience of international standard and that he was a chef for almost 20 years or more. The Claimant had in his application represented that he was the Executive Chef of Thistle Hotel Johor Bahru, Executive Sous Chef of Orchard Hotel, Singapore and Central Production Chef of Resort World Sentosa, Singapore, Swisshotel Merchant Court, Singapore. These qualifications and experiences indicated that he was a very qualified and highly experienced chef. However, the Company contends that none of these qualifications and experiences were displayed by the Claimant during his employment with the Company.

[10] The Company contends that as an Executive Chef, the Claimant's job description as attached to the letter of appointment includes inter alia being responsible for the following matters:

(a) The smooth and efficient running of the food production department;

(b) Day to day operation of the food production department;

(c) Directing, responsible for supervising, controlling, coordinating, participating in the activities in preparation of all type of foods;

(d) managing the kitchen affairs;

(e) Ensuring the quality of food purchased is of high standard;

(f) Ensuring the quality of food presentations and innovations;

(g) Ensuring the food is hygine; and

(h) Ensuring that the Company is profitable and costs effective in the operation of the food department.

[11] Apart from the responsibilities listed in paragraph 10 hereinabove, the Claimant's other responsibility had been to supervise all employees in the food department as the Claimant was the head of the food department of the Company.

[12] On 22.11.2016 i.e. the end of the probation period of three (3) months, the Claimant underwent a performance appraisal conducted COW-1. Based on the appraisal done, the Claimant's work performance was found to be unsatisfactory and that he had failed to achieve the level of performance as expected of him in his capacity as an Executive Chef.

[13] Although the Claimant contends that his probationary period was for a duration of six (6) months, however, based on the amended letter of appointment which the Claimant had initialled, the probationary period was amended to read as three (3) months. The Company contends that it is the Company's policy that the probationary period is for a duration of three (3) months and not six (6) months. As such, the Company terminated the Claimant's services effective 05.12.2016 via a notice of termination dated 22.11.2016 on the grounds of poor performance.

[14] The Company had subsequently issued an early release of termination dated 29.11.2016 whereby the Claimant was released from his employment on 30.11.2016. However, the Company paid the Claimant his dues until 05.12.2018 being the last working day of the Claimant with the Company and had also paid the Claimant for the number of unutilised leave days of the Claimant with the Company.

[15] The Company called three (3) witnesses to give evidence at the hearing. They are:

(i) Yeo Siu Ling (COW-1) - General Manager of the Company

(ii) Sangeetha a/p S. Amayappan (COW-2) - Group Manager Human Resource of the Company

(iii) Nur Nadzurah binti Md Salleh (COW-3) - Human Resource Executive of the Company

COUNSEL

For the Claimant: Mr. Haziq bin Ishak and Mr. Jeyakumar Sundralingam from Messrs Tea, Kelvin Kang & Company

For the Respondent: Mr. Tan Hee Soon from Messrs Tan Hee Soon, Wong & Partners

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