KUALA LUMPUR – The industrial court here has awarded a former Maxis Broadband Sdn Bhd employee RM703,664 for unfair dismissal after finding discrepancies in his performance evaluations.
The July 19 decision by industrial court chairman Mohd Zulbahrin Zainuddin awarded Ng Keng Seng, who had worked for the company for 25 years, RM305,644 in back wages and RM398,000 in compensation in lieu of reinstatement.
The RM398,000 was derived from Ng’s last drawn salary of RM15,920 multiplied by 25, being each month for each completed year of service, the court’s written decision stated.
Ng was dismissed on February 28, 2021 while he was holding the position of project manager specialist.
His dismissal followed three failed “ad-hoc performance improvement plan” (PIP) evaluations, each PIP lasting a month from September to November 2020.
He took his dismissal to the industrial court in September 2021.
Industrial court chairman Zulbahrin in his decision said scrutiny of Ng’s performance evaluation results, including those in the early part of his career before he began the ad-hoc PIP, showed conflicting information which was unfair and confusing to the claimant.
The court also noted that Ng was dismissed without a warning or show-cause letter, which cast doubts on the actual reasons for his termination.
Citing performance evaluations from the years 2017, 2018 and 2019, the court said Ng’s supervisors and evaluations had acknowledged and thanked him for his contributions, commitment and efforts to his assigned tasks.
Despite this, Ng was still rated with a “partially meets expectations” (PME) ranking for each of those years.
He was even given a “token of appreciation” bonus of RM26,132 for his performance in 2019 as stated in a letter in February 2020 from the company in recognition of his efforts.
Under questioning by Ng’s lawyers, Maxis Broadband’s head of compliance and employee relations, Sheila Subramaniam, who was a witness, agreed that a PME was not the same as “total unsatisfaction”.
The court’s judgment also took note of Maxis Broadband’s criteria of eligibility for staff to undergo a PIP, whereby employees rated “unsatisfactory” would be automatically enrolled, while those like Ng could be placed in an ad-hoc PIP by their manager if they are deemed non-performing.
Noting that Ng’s performance was never once rated “unsatisfactory” or “non-performing” throughout his career, the court said it was of the view that Maxis Broadband had not applied its PIP policy consistently with regard to Ng.
The court also noted evaluations on Ng’s performance in the last two years before his dismissal under his last supervisor, Macy Ho, who had agreed with the appreciation bonus given to him for his 2019 performance, and who had never highlighted poor performance issues despite his PME ratings.
“The court is of the view that the company has failed to prove on the balance of probabilities that the claimant’s dismissal from his job was on fair grounds,” Zulbahrin said.
Ng was represented by lawyer Patrick Tan Yan Hong from Messrs Tang and Hong, while Maxis Broadband was represented by Janice Anne Leo, Adrienne Sena and Gurjeevan Singh Sachdev from Messrs Steven Thiru and Sudhar Partnership. – July, 25, 2024