Donovan Cheah (Partner), with assistance from Laveeniapal Ganapathy (Legal Executive)In an unfair dismissal claim involving direct dismissal, the burden of proof is on the employer to establish that they had dismissed the employee with just cause and excuse. Having the right witness can therefore make a big difference on the outcome of a case. In the case of Lim Fang Xin v Australian Trade & Investment Commission, this was one of the factors examined.
Brief Facts
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The Claimant was employed by Australian Trade & Investment Commission (“Commission”).
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In October 2019, the Claimant was placed on a performance improvement plan (“1st PIP”) due to concerns about the Claimant’s work.
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After the 1st PIP ended, the Commission sent a letter to the Claimant stating that the Claimant’s employment might be terminated due to failing to meet performance standards, but invited her to provide a written response to which the Claimant responded.
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The Commission then decided to extend the Claimant’s PIP for an additional 3 months (“2nd PIP”).
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The Claimant successfully completed this 2nd PIP. She was also given positive feedback on her overall performance by her then supervisor, one Amelia Walsh.
Court’s Findings
During cross-examination, Harris admitted that the Claimant had received positive performance reviews from both Amelia Walsh and Paul Sanda. Harris also agreed that she herself had given the Claimant generally good appraisals.
Harris stated that the decision to dismiss the Claimant was made by top management, specifically Ben Wyers. The Court observed that “based on confirmation brought forward by [Harris], Wyers was the sole individual in making the decision” to dismiss.
The Court found that Harris did not provide enough evidence to justify the dismissal since the decision came from Wyers, who did not testify. Wyers was the one who signed the termination letter, but based on Harris’ testimony, may not have been aware of the Claimant’s background and past performance.
Harris could only testify that she was fully confident Wyers followed the procedures he needed to get to that decision to dismiss, but admitted she could not speak on his behalf.
Since Wyers was not called as a witness, the Court inferred that his testimony would have been unfavourable to the Commission.
The Court concluded that Harris was not the right person to testify since she was not directly responsible for the decision to dismiss. The fact that Wyers lived in Australia did not excuse his absence as a witness.
After considering all the evidence, including the Claimant’s performance records, the Court decided that the Commission failed to prove just cause for dismissal, making the dismissal unfair.
Key Takeaways
The Court’s decision was not solely based on who was called as a witness, but it did emphasize the importance of having relevant witnesses.
In Malaysia, an employee can only be dismissed for “just cause and excuse”. The employer must have a valid reason for dismissal, and adopt a fair process when carrying out the dismissal.
To prove this, the employer must present documentary evidence and call appropriate witnesses. These witnesses should have personal knowledge of the facts related to the dismissal, such as: the reasons for dismissal, the circumstances leading to it, or the dismissal process itself. If the employer does not call the right witness, the Court might reasonably assume that their testimony would not have been favourable to the employer. This could lead to an unfavourable decision.
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This article was written by Donovan Cheah (Partner), with assistance from Laveeniapal Ganapathy (Legal Executive) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation.
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