Are probationary employees treated differently under the eyes of industrial laws?
BENNETT SUBASH PETER V BON TON SDN BHD (BON TON RESORT LANGKAWI)  1 LNS 1114
- Bennett Subash Peter (“BSP”) was employed as a manager by Bon Ton Sdn Bhd (“Bon Ton”) with a probation period of three (3) months.
- There was no misconduct on the part of BSP in his work assignment although there was evidence to suggest that some of the staff were unhappy with the way BSP managed them.
- Bon Ton terminated the employment of BSP during the probation period.
- The Industrial Court found that the termination was unlawful.
- Bon Ton applied to the High Court to set aside the decision of the Industrial Court. The High Court found in favour of Bon Ton and set aside the decision of the Industrial Court.
- BSP then appealed to the Court of Appeal.
FEDERAL COURT DECISION – APPEAL ALLOWED!
COURT OF APPEAL DECISION – APPEAL ALLOWED!
- The Court of Appeal held that regardless of whether the employee is a permanent employee or one on probation, industrial law prohibits arbitrary reasons for dismissal.
- The reasons for dismissal must be bona fide.
- The bona fide test depends on the facts and circumstances of every case.
- There must be just cause and excuse for the termination even during probation period.
- Industrial jurisprudence generally leans towards the employee as opposed to the employer as the employer and employee are often not seen to have equal bargaining powers.