Employees holding senior positions are often hired on the basis of their years of experience or expertise in their relevant field or industry. However, a wealth of experience does not necessarily guarantee good performance as some employees are just not a “right fit”. When employers seek to terminate these employees for poor performance – are employers entitled to hold these experienced employees at a higher standard of performance?
Our firm recently successfully defended an unfair dismissal claim involving this very issue (Ahmad bin Mohd Khairuddin v Global Knowledge Network (M) Sdn Bhd [Award No. 171 of 2018 / KLIC 2(25)/4-613/14]).
- The employee was hired by the company as a Technical Consultant. His role as a technical consultant was to conduct or teach information technology (IT) courses to the company’s clients.
- Prior to being employed by the company, the employee had 18 years of experience in the field.
- The employee had also worked on a freelance basis for the company for 5 years prior to being offered a role as a full time employee.
- During his probation period, the company was not satisfied with the employee’s performance. Among other things, the employee had failed to prepare for a course and pass a required examination in order to get himself further qualified. There were also instances where the employee refused to conduct scheduled courses without good reason, which led to complaints.
- The employee alleged that he could not conduct the scheduled courses because he was not familiar with the course he was asked to teach and/or was not qualified to do so.
- After 5 months on probation, the employee was informed that he was not confirmed and that his employment would be terminated.
- The employee sued the company for unfair dismissal.
Findings of the Court
Upon a review of the evidence, the Court found that the employee’s performance was unsatisfactory during his probationary period, and that his refusal to conduct scheduled courses was an act of disobedience that can justify immediate dismissal. The employee’s refusal to teach goes to the root of an essential term of his contract of employment since he was hired by the company specifically to teach IT courses.
The evidence also demonstrated that the employee was qualified to teach the scheduled courses, and that he had conducted similar (and even more advanced) courses before in the past. The Court therefore formed the conclusion that the employee had a negative attitude and was instead trying to come up with different excuses to get out of assignments which he did not want to do.
In finding that the company was entitled to dismiss him, the Court referenced his years of experience in the field:
The court also finds that during cross-examination, the Claimant stated that he has more than 18 years of experience in the field. Despite having such vast experience, the Claimant still requested to be counselled and trained like a very junior employee as can be seen from the evidence […]
The court agrees with the Company’s submissions that the Claimant was hired as a trainer based on his 18 years of experience. He cannot be considered to be someone who did not know what the training job entailed. Even if he did not need to be counselled or warned like a young probationer, [the Company] still took steps to repeatedly inform him of his shortcomings through e-mails and conversations. When finally it became apparent that the Claimant refused to follow instructions, the Company had no alternative but to terminate him.
In assessing a probationer’s performance, the courts acknowledge that it is the company’s prerogative to decide how the probationer’s performance should be assessed. An employee’s character, suitability and capacity as an employee may be tested during the probation period and if he is found to be unsuitable, he can be dismissed.
Typically, an employer who wishs to terminate an employee (including a probationer) for poor performance must demonstrate that the employee was warned of his shortcomings, was given opportunity to improve, and that the employee failed to improve despite the opportunities given.
However, where senior and experienced employees are involved, the threshold of giving warnings is much lower. These senior and experienced employees cannot be held to the same standard as a fresh graduate who has just joined the work force. Due to their experience, senior employees should be more familiar with the expectations of their job, and generally should not have to be repeatedly told what to do or how to improve their performance. That being said, the element of warning/counselling is just one criteria, and employers must still of course prove that the employee was a poor performer.
About the Author: Donovan Cheah heads the employment law and dispute resolution practice group in Donovan & Ho. He has been named as a recommended lawyer for labour and employment by the Legal 500 Asia Pacific 2017. He has written for publications such as the The Edge and the Star, as well as for the Malaysian-German Chamber of Commerce and Industry.
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