• T. THAVALINGAM & CO.

High Court: Performance Appraisals are a Management Prerogative

Yee Kon Sin v. UMW Equipment Sdn Bhd & Anor

Kuala Lumpur High Court Judicial Review Application No. WA-25-211-05/2019


Earlier today, the High Court dismissed an application by a senior employee who had unsuccessfully claimed constructive dismissal after receiving a sub-par performance review from his superior.


Yee Kon Sin ("the Applicant"), who at the material time held the position of Senior General Manager at UMW Equipment Sdn Bhd ("the Company"), had expressed his dissatisfaction after receiving a below-average result in his Mid-Year Performance Review -- his first review under his then-superior. His results were subsequently reviewed and moderated by his next-level superior, who had also highlighted, in writing, the Company's grounds for assessing the Applicant as it had, specifically in relation to the Company's financial performance and non-compliances with the Company's processes.


After an exchange of numerous correspondences, the Applicant remained dissatisfied with the Company's position and proceeded to claim constructive dismissal effective 31 December 2014.


Notably, it was undisputed that no punitive action had been envisaged against the Applicant, and the Company had in fact exercised its discretion to award him a higher bonus and increment than he would have otherwise received based on his low performance score.


The Applicant proceeded to litigate his claim at the Industrial Court, which had ultimately rejected his claim of constructive dismissal, observing as follows:


“In the events described above this Court cannot help but to observe that the Company had not conducted itself in anyway adverse to how a reasonable employer would have done when faced with similar circumstances. Surely, Performance Reviews' of its employees fall within the clear and unambiguous ambit of its managerial prerogative, where this Court is on all fours with the Company when it states that it was neither necessary nor desirable for this Court to conduct a critical examination of the Company's assessment; absent clear and cogent evidence of mala fides. In the circumstances of this case, the Claimant has been unable to show any element of mala fides; and so be it the finding of this Court.


On the evidence as a whole, based on equity, good consciousness and the substantial merits of this case it appears that the Company did not commit any conduct that could be understood to amount to a breach of a fundamental term of the Claimant's contract of employment; nor did it evince an intention not to be bound by the same; and nor was it guilty of conduct calculated or likely to destroy or seriously damage the relationship of mutual confidence and trust.”

[our emphasis]


The Applicant, being aggrieved by the above decision, filed an application for judicial review, seeking an order to quash the Award of the Industrial Court.


The learned High Court Judge, in giving her brief grounds for dismissing the substantive application, observed that there was nothing illegal, irrational or procedurally improper in the Award which would warrant the curial intervention of the High Court and, moreover, that the appraisal of workers is a managerial prerogative and it is not for the Industrial Court nor the High Court to interfere.


The Industrial Court Award can be viewed below.


UMW Equipment Sdn Bhd was represented by our Managing Partner, Dato' Thavalingam C. Thavarajah and Partner, David Tan Seng Keat.



Industrial Court Award No. 559 of 2019 - Yee Kon Sin v. UMW Equipment Sdn Bhd
.pdf
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