Legal Update 10 of 2018

CASE:

LEMBAGA KEMAJUAN WILAYAH KEDAH (KEDA) v. NUR DINI MOHD NOH [2018] 4 CLJ 423 

ISSUE:

Can an employee be kept on probation for more than 3 years? And then terminated?

BRIEF FACTS:

 

  • Keda appointed Nur as a Grade W41 Auditor and as part of the conditions of the offer, she was required to be on probation for one to three years.
  • Keda extended Nur's probation for three times untill times until Keda terminated her with one month's salary (in lieu of one month's notice) based on the following reasons
    1. Failure to fulfilrequirement; and
    2. she served probation for five years without being confirmed.
  • One of the conditions of service was that Nur had to obtain the recommendation of her Head of Dept in order to be confirmed to her post. She did not obtain it.
  • Nur then filed a civil suit in the High Court for wrongful termination of her employment contract.
  • The High Court held that Keda's termination of Nur’s services was declared null and void.
  • The High court also opined that Keda failed to inform Nur the reasons the recommendation by the Head of Dept was not given and that this failure amounted to a failure to follow the principle of procedural fairness. Thus, Keda appealed.

DECISION:  Appeal allowed by Court of Appeal [Nur’s claim was therefore dismissed]

  • A plain reading of the conditions of the letter of offer conveys that Nur’s appointment was subject to the conditions of service.
  • Therefore, Nur had to get the recommendation of her Head of Department to be confirmed in her post, which she failed to get despite three extensions of probation period being given to her.
  • She had therefore breached her condition of employment and her employment was correctly terminated by Keda.
  • Nur ought to have been more proactive in inquiring about obtaining the Head of Department's recommendation throughout her probation and extended probation period, yet she chose to remain silent and unconcerned until she chose to raise this complaint when she filed this suit.
  • Thus, terminating Nur’s employment was consistent with the terms of the letter of offer and was valid. 
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