ARMAN BIN ABELINO V AIR ASIA BERHAD (AWARD NO.: 689 of 2020)
The Claimant with 10 years experience as a Cabin Crew joined the Company on a fixed term contract of 24 months and was required to undergo a Cabin Crew Training Course for 3 months and a 6 months probation period which may be extended by the Company. He was dismissed within a year due to his inability to prove his suitability and fitness for the job of a Cabin Crew. He was not satisfied with the company decision and contended that during his tenure in the Company, he had received lots of positive feedback from the passengers, had high achievement for in-flight sales of duty free products and had helped the Company to catch a thief on a flight to Colombo. The Company submitted that as a Cabin Crew, punctuality and time management are of utmost importance in order to not miss any pre-flight briefing as it could jeopardise the safety of the flight. The Claimant’s during his tenure with the company had a handful records of disciplinary issues and his habitual lateness for sign on for flight duty and pre-flight briefing is not something that the Company could tolerate. Given the Claimant’s performance during his probation and the extended probation period, the Company could probably expect a even further deterioration in his performance once the Claimant is confirmed.
In the eyes of the law, an employee who is on probation enjoys the same rights as a permanent employee hence the employee’s service cannot be terminated without just cause or excuse. The burden is on the Company to prove that the termination of the Claimant’s service was with just cause or excuse and accordingly if the Company alleges that the Claimant’s is guilty of inappropriate conduct, the burden rests on the Company to establish them on a standard of balance of probabilities.
The Court is satisfied that there are no elements of mala fide or unfair labour practice on the part of Company. The Claimant was sufficiently warned about his lateness and for breaking safety rules by dancing on the tarmac. Ample time and opportunity had been accorded to him to show improvement of his performance. The Claimant case that he was good in customer services, was able to create a pleasant flying experience and his excellence in pre-flight sales does not justify and cannot be an excuse for his repeated failure to be punctual.
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