LACK OF TRAINING AND POOR PERFORMERS

I was asked by one of my mentees, Ms Nor Zaleha, for caselaw which illustrates the relationship between lack of training and substandard performance. I hope the cases I have selected below shall be of some help to you, Zaleha.

In the case of Puncak Niaga (M) Sdn Bhd v Mohd Sulaiman Mohd Yahya [Award No. 282 of 2001] the claimant was employed by the Company as a General Manager. His probation period was six months.

During these six months, the claimant was not given any guidance or on-the-job training. After the initial six months had lapsed, the company extended the claimant’s probation period. Shortly afterwards, the company terminated the claimant’s services, alleging that upon review of his performance, conduct and character, he was found to be unfit for the post.

The company, however, failed to show evidence that they had ever conducted any performance appraisal of the claimant, or, throughout the course of the claimant’s employment, impressed upon the claimant that they were dissatisfied with his performance.

The Court concluded on the balance of probabilities, inter alia, that the company had failed to show that the claimant had been given a fair opportunity to improve on his alleged poor performance. The case was decided in favour of the claimant.

“Substandard” or “poor” performance, therefore, is a relatively subjective matter. A person may be qualified and competent for a particular job, but because of lack of proper direction and support from his employer, his true ability may not be able to shine through as he may not be clear as to what is expected of him. Mistakes can be made by anyone, especially in a new environment, where the working culture and procedures may be different from what the employee is used to in his or her previous job.

The type of training required for an employee to perform at optimal level also varies. “Training” associated with performance normally involve practical on-the-job guidance, where the employee is shown “the ropes” on how things are done, not so much skills-based. If the employee does not possess the basic skills required for the job he would not have been hired in the first place. The employee should be given time and chance to acclimatise to his or her new job.

In Rohimi Yusoff v Alfa Meli Marketing Sdn Bhd & Anor [2001], the applicant was employed by the Company as a Marketing Manager. Ten weeks later, his employment was terminated.

The Industrial Court was satisfied from the evidence that the termination was with just cause and excuse because it was based on the claimant’s inability to generate business for the Company.

The applicant applied for an order of certiorari to quash the award and an order of mandamus for a rehearing before another chairman of the Industrial Court.

The claimant was dismissed without any warning and was working with the company for ten weeks only. It was too early to say that the claimant had failed to generate business during that period.

The judge in this case made an observation of IE Project Sdn Bhd v Tan Lee Seng [Award no 56/198]:-

“An employer should be very slow to dismiss upon the ground that the employee is found to be unsatisfactory in his performance or incapable of performing which he is employed to do without first telling the employee of the respects in which he is failing to do his job adequately, warning him of the possibility or likelihood of dismissal on this ground and giving him an opportunity of improving his performance. It is for the employer to find out from the employee why he is performing unsatisfactorily or warn him that if he persists in doing so he may have to go. There is no record of any such warnings. On the contrary I am satisfied that the Claimant had performed his task to the best of his ability.”

Sidel Industry (M) Sdn Bhd v Thanusia Malar Raja Gopal [Award No. 8 of 2006] and Swai Lin v MRTS-Atlantik (M) Sdn Bhd [Award No. 688 of 2006] followed the principles of the Rohimi case.

Is poor performance, then, a form of misconduct?

In Eruthiam Arokiasamy v BM Enterprise Sdn Bhd [Award No 622 of 2006] it was held that:-

“A workman who does not show enough care or enthusiasm in his work but nonetheless plods on with the work does not necessarily commit misconduct.”

A single act of incompetency, however, does not warrant summary dismissal of the said employee. Employers need to show evidence on a balance of probabilities that the termination is justified on grounds of poor performance. Hence, proper written records of performance appraisals, training and counseling or warnings, of which must be acknowledged by both the employer and the employee, must be meticulously kept. Mere allegation is likely to be fatal to the employer’s case.

In Galaxy Portfolio Sdn Bhd v Suradi Sulaiman [Award No 158 of 2006]  it was held that the company failed to prove the allegations of poor performance against the claimant. Even if there had been such poor performance, there is no evidence that the company had ever informed the claimant, who is still on probation, of his shortcomings, or had given him any opportunity to improve himself. The Court in this case held that the dismissal was without just cause or excuse.

Since poor performance is not misconduct, it is therefore not necessary to conduct a domestic inquiry (D.I.) prior to dismissing an employee for poor performance.

In Wearne Brothers Services Sdn Bhd v Yuen Ah Man [Award 188 of 1982] the learned judge opined:-

“I am of the view that inefficiency is not misconduct, which necessitates an inquiry. The Company Secretary decided to terminate the services of the claimant based on the feedback form and appraisals by the managers.”

In Steven Ferenc Palos v Ogilvy One Worldwide Sdn Bhd & Anor [Award No. 2316 of 2005] it was held, inter alia, that the claimant had never been told that because of his areas of weaknesses, a dismissal of him was being considered. Also, the claimant was not given ample opportunity to discuss any possible work-related problems before he was terminated. The company also never gave him any written warnings.

However, there are caselaw in which failure to give employees warning may sometimes not automatically make the dismissal unfair.

In Bedford Investment Ltd v Northern Hotel [1990], a New Zealand case, it was held that:-

“…There can be cases where it is open to the Court to find that employment can be terminated without the giving of a formal warning, even where this might be for performance or other similar reasons…”

In Harmer v Cornelius [1858] it was enunciated that where an employee is hired for his skills and professional expertise, a certain implied standard is expected of them in the running of the day-to-day business. When he has demonstrated his incompetence the employer is not bound to retain him and would be justified in dismissing him without the requirement of warning.

Willes J opined:

“ ..(I)t seems very unreasonable that an employer should be compelled to go on employing a man who, having represented himself as competent, turns out to be incompetent.”

In Littlewoods Organisation Ltd v L. N. Egenti [1976] it was held that:

“..any professional man, a man of the employee’s talent, would, if he was brought to his notice that his work was not up to standard, and if he did not improve the standard of his work sufficiently, he might be faced with dismissal. That was plain common sense with a man of his caliber and a man of his intellectual position.”

CAVEAT EMPTOR. MONITOR CLOSELY YOUR OUTSOURCED FW AGENT.

This post is an expansion to another post of mine entitled "RUFFLED." about outsourced foreign worker agencies which I wrote on 9 September 2009.

Now for those of you whose companies are in the restaurant or other service-oriented businesses, you need to be aware that the Government has now put a very short rein on hiring foreigners for your sector: foreign workers are only allowed to be hired as "tukang masak" (cooks). Even so, they will only allow you to hire foreigners, if you can show proof that you have exhausted all recruitment endeavours to hire locals and none were considered suitable, or, if you do not have enough local manpower to man the kitchen of your very large and very busy food outlet.

You cannot even hire foreigners for cutting your chicken or mopping your floor. For good measure, I would also like to remind you that you cannot hire them as front of house crew.

So what does your agent do now in view of these circumstances? Well, these can be the likely scenarios:-

1. They may "recycle" workers who were sacked from other companies. The problem with this is, the workers's permits will be under another company's name, which of course renders it illegal for you to employ them in your premises. The agent may tell you that whatever company's name stated in the permit is their associate company. Well, use your logic. If these workers were hired specifically for you, how in the world did they get a permit even before they were given the job? And do check the dates in the permit: I can tell you it is very likely that they will only have a couple of months left before their permit expires.
2. The agents may give you refugee status individuals, and give you a chocolate box of excuses why they do not carry a work permit with them. The agents will tell you that it is only for temporary measure while they source for "permanent" workers for you, or that their permits are in progress, etc. Bollocks. Reject these workers at once and cancel your agreement with the agent.
3. The agents may be going through the back door. You can spot this when they ask for exorbitant amounts of money to cover various odd -sounding costs and fees, or when they ask for documents such as your original bank statements and EPF or SOCSO statements. NEVER give the agents any originals and for your information, your bank statements are not required. Tell the agent that during the interview with KDN, you want to be present as your employer's representative and you will being all the originals yourself if the KDN officer needs to sight them. If the agent refuses, terminate your contract with them and call KDN immediately to check on your application status. And please don't do back doors. If you get caught, it will be too expensive. And I'm not just talking about ringgits.

The Government is now trying to limit the number of outsourced foreign worker agencies in the country due to the unscrupulous ways of their dealings.

So what can employers do? I know it is hard, I am facing the same quandary too. We need to do something to attract the locals to work. Like I said before, the Government needs to ensure that business in Malaysia can afford to pay better wages and benefits to our local people. It's not that business do not want to hire locals, but locals do not want to work. Mindsets can't be changed in a jiffy, but economic policies can be reviewed a lot faster. It's a two-way street.

Till then, at the risk of sounding like a JTK officer, we employers just need to get creative (though I really don't know how else) to get enough people to get our business going - while all the time hoping this phase will not last.

SO?

Yesterday I was supposed to go to the FMM HR/IR meeting but opted not to at the last minute because I'd some new legal projects assigned. I sent my staff Azizah to go instead.

When she came back, she told me that the meeting discussed about worker-hiring issues, the scarcity of local workers and the Government's depressing resrictions placed on foreign worker employment.

Sigh.

See, that's the thing: this is all we talk about nowadays and we can all only sit around and talk about it. No one can come up with any answers. That's because the answers are not up to us!

There is really no light at the end of the tunnel in sight. Or rather the end of the labyrinth.

While it's all very well to know that we are not alone in our struggle to meet workforce demands, it's of little comfort because we have now come to an impasse which actually should not be there at all if only the powers that be try to understand how business works.

Twitter-N-Hire?

I'd like to share this article written by Byron Mackelroy, first published in HR Resource . I wonder if this works in Malaysia.

Once depicted as a trendy social media experiment, Twitter has officially arrived. From cell phone integration to CNN broadcasts, we can no longer escape the fact that Twitter is not a passing fad. The site once criticized for a complete lack of utility has evolved into one of the most flexible tools available in the social media space. HR departments, Corporate Recruiters and Job Seekers have taken notice. Twitter has become an important tool in corporate recruiting.


In the current job market companies are clamoring to hang on to their talent. Blasting out new positions in real-time is an exciting strategy to target quality candidates. The fact of the matter is that there are more job seekers than jobs. This situation results in the limited number of prime candidates being scooped up with greater urgency. Despite the fact that there are less job openings, publicizing your new positions is critical to landing top talent.


Another interesting facet of Twitter's contribution to the recruiting field is an enhanced ability to find passionate candidates. Companies that actively rely on twitter to publicize new job openings create a channel for passionate supporters and potential future employees to track. For example, A software engineer who thoroughly enjoys the online music service Pandora.com will be more likely to respond to a new job opening if the candidate can track the available positions for Pandora in real-time.


Perhaps Twitter's most impressive function in the recruiting process is to establish a company's reputation for hiring quality, renowned talent. Spacex, the growing rocket company founded by Elon Musk, uses Twitter to announce talent acquisition. When Spacex hired former astronaut Ken Bowersox they tweeted out the news. This PR strategy serves to build a reputation around the human capital at a company. The more talented super stars that a candidate perceives to work for your company, the more likely that candidate will want to join your ranks. Ultimately companies want top candidates beating down the doors to get a chance to join the team. Twitter can help make this desire a reality.


A few smart software companies are working to seamlessly integrate Twitter and other social media sites into the recruiting process. These applicant tracking providers allow corporate recruiters to automatically post new positions to Twitter. Whenever a new job goes live the system will tweet out the new position. As more recruiting software packages leverage the Twitter API, Twitter will become more integral to the hiring process.


The recent Twitter revolution in the recruiting field is only a subset of how the social media site is affecting business across the board. With adoption rates soaring and users hunting out innovative applications for the service, Twitter's inherent flexibility may become its killer feature.

I had tried this once, but no one came to the aid of my distress call (at that time I was indeed distressed as I was hard-pressed for staff). I want to try again with a different wording structure and using more "magnetic" keywords and buzzwords and hashes.

Anyone hiring for Johor companies tried Twitter-recruiting? Were you successful?

EVENTFUL HEADACHE

Organising office events is fun. Yet it can also be the most headachy of all headaches. This is because, despite having formed a gung-ho committee in the beginning of things, you will ultimately be running the whole entire show by yourself in the end.

There are only two outcomes of an office event. Either a flying success earning you heaps of praise and the appledom of your boss's eye, or a total fiasco that, in some cases I know, can lead you to being sacked.

So organising events is risky business indeed.

Is is very common for companies to assign event management to the HR people. Of course when you sign up for the job your employment contract and/or JD never stated this. But remember that clause at the end of your contract and/or JD which states "any other tasks assigned by the Management" or something else to the same effect? Well, taking this risk is one of them. That is fine in itself, but then you may ask, why HR? or if there is a committee, why does HR need to spearhead it? Well, don't you know? Because other people are TOO BUSY. Only you, the HR practitioner, has so much free time because your functions are not as important as accounts or operations or all others for that matter. The fact that you are assigned the partying affairs have nothing to do with your talent in the field. It's merely because you are the expert in being the clown.

Hahaha.

I am just being sarcastic to some quarters who insist on trivialising my work. The fact is, I am proud to be an event organiser, am honoured to be assigned the task, and me and my team will do our very best to rock it like it's never been rocked before.

But the headache will still happen of course. But if everyone is working on the project as a team, it will fly.

So the biggest, and last event of the year, for us shall be the Annual Dinner (or in our case, the Half-Decade Dinner as the last Annual Dinner was held about 5 years ago). My HR team is prepared for a big headache. But we already have Plan B. If we have to this ourselves in the end, we are going to make a humongous deal out of it. We will stamp our mark everywhere including on all the mites in the hotel ballroom carpet with the words "THE FUN YOU ARE HAVING TONIGHT AND OF WHICH MEMORIES YOU WILL NEVER FORGET IS MADE POSSIBLE BY THE BLOOD, TOIL AND SWEAT OF THE SUPERMEN AND WOMEN OF HR DEPT".

We look forward to being the HR Dream Team this side of the country has ever seen: we will fly AND rock.

New blog

Hey guys, you can check out my new blog on http://www.retrorockinsista.blogspot.com/.

It's my first blog in Malay, to honour the wishes of some friends who would like me to write in Bahasa Melayu.

It's still new though so don't expect too much in terms of gadgetry there.

WHERE HAVE ALL THE WORKFORCE GONE?

The whole situation is like a snake chasing its tail. Employers are hard pressed for manpower. They source for local workers, only to be snubbed in the face for paying "low" salaries.They turn to agents to help bring in foreign workers, only to be told by JTK that the Government is putting a plug on foreign manpower recruitment especially those on outsourcing basis.

No man, no work. No work, no eat. No eat, die.

So what's a Malaysian employer to do now?

Intriguingly, where have all the local workforce gone? Not everyone is across the causeway. And they say we are still in recession mode. So why are people not grabbing the first job opening they find?

You know this whole "low salary" story is not always true. Even if it is, for crying out loud it's a blue-collar job! What do they expect, a six-figure packet with a Camry to go with it? Most companies are in fact willing to pay workers reasonably higher remuneration than the average market price as long as they can get their people in. Still, these companies cannot seem to attract people. Don't even talk about attracting talent, they can't even entice the village idiot to come and work. What is happening? Has the nation been struck by a SLOTH PHENOMENON?

Ponder all we like. Frankly, if you ask me, I don't see an immediate solution. Unless every factory invests all their gold in full-automation and pay engineers to man them. But then that'll result in price hikes for finished goods and eventually, inflation. Business dies. Sheesh.

Anyone out there has any best practice stories to share on blue-collar recruitment? I'm desperate here.

JOBSTREET'S HRNE IN JB: WHAT SAY THE VOX POPULI?

I recently met two hotshots from Jobstreet.com. We pondered on the feasibility of hosting another HR Networking Event (HRNE) in JB. Despite the obvious beneficial properties such events bestow, the last HRNE met with lukewarm response. On top of that, there is also the question of topic relevance and availability of speakers. I was told that HR Managers from SMIs are hesitant to speak and share their experiences. I wonder whether this is true, and if so, why.


I promised Jobstreet I’d consult my fellow HR practitioners in JB about the topics. I sent out an email blast through RRHR but no one has responded to date. So this means I’ll have to email or call or see everyone individually. Come on, folks. Where are all the JB HR connoisseurs? Let's make the most out of this opportunity to gather and gain as many resources as we can for our profession! (plus all those freebie goodies, remember!)

In any case, I have already raised my hand and volunteered to speak at the next HRNE, whenever that may be and whatever the theme. I already have a good idea of what I want to talk about and that can be bent and folded to meet any given circumstances.

I would also love to hear from other managers about their best practices and experiences. There's nothing to be shy about, we've all been the corporate janitors at one point or another in our careers. It's time we toast to it.

MINIME

My first post since Raya. Hope everyone had a good one. I had a long one, and actually am still having it :D

I came back from my (long) Raya leave and put my (raw and green and trembling) staff on the stand in a labour court case, warranting her to act on behalf of the Company to prosecute against a notice pay defaulting ex-employee.

The first reason why I put her there was because I was too busy with other things to actually prepare for this particular case. Since this was an open-and-shut one, and she had actually assisted me to prepare the paperwork, I decided to delegate the task to her so I could concentrate on the legal agreement I was drafting. As I decided so, an idea formed in my head that I could seize the opportunity to give her on-the-job training in labour court hearing procedures. I don't want her to be my driver forever anyway, ferrying me to and from court and carrying all my files to death.

And so, unrehearsed, she took the stand, while I sat there putting a sardine face with my hands folded behind my head, watching the entire thing with the eyes of an Idol judge.

Joking lah. I actually taught her what to say right then and there by passing her notes with tips on what to say. I helped pass the documentary evidence to the judge and wrote the entire submission for her.

She was nervous obviously, being a virgin, but eventually the pressure pushed inspiration into her brain stems and she began to come up with her own arguments. I thought she was actually quite efficient.

When the court adjourned, two things happened. I have identified a dark horse for me to groom, and a good eyeful of the cute judge sitting right across from me.