Court Rules Mbsb S Non Confirmation Of Branch Manager In Bad Faith

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The Industrial Court awarded Nazry Semail RM169,000 in back pay and compensation for wrongful dismissal from employment. (Facebook pic)PETALING JAYA: The Industrial Court has ruled that MBSB Bank Berhad’s delay in extending the probationary period of its branch manager almost three years ago suggested that his dismissal was done in bad faith.
As a result, the court awarded the bank’s former Seremban branch manager Nazry Semail RM169,000 in compensation, made up of 12 months’ back pay worth RM156,000 and another RM13,000, being one month’s salary in lieu of reinstatement.
“The fact that the post was filed by someone on a lower salary, as confirmed by two of the (bank’s) own witnesses, also showed that its refusal to confirm the claimant (Nazry) in his employment was with mala fide intent,” court chairman Nur Fauzah Mokhtar said in her award dated May 23.
Nazry, who was appointed to the position on Dec 28, 2020, was contractually obliged to serve a six-month probationary period with the bank.
Nur Fauzah noted that Nazry’s probation was extended for another three months to Sept 28, 2021 by a letter issued 10 days before the expiry of his initial probation period.
However, a second extension was only handed to him on Dec 9, well after the extended probationary period expired. That was done only after Nazry himself inquired as to the status of his employment in November, the court found.
The court ruled that the second extension letter, seeking to extend Nazry’s probation to Dec 27, should have been handed to him at the very latest on Sept 27, the day before his initial probation period expired.
Instead, Nur Fauzah said, it was only issued on Dec 9, following an appraisal carried out six days earlier.
“This lapse was not at all explained by (MBSB’s) witnesses during the hearing. Only Farid Basir, the officer who signed the letter, knew about the matter, but he was not called to testify,” the chairman said in her 56-page ruling.
Nur Fauzah noted that the bank had appraised Nazry on three separate occasions, with the first taking place on June 9, the second on Dec 3, and the third just 11 days later.
“The act of conducting appraisals twice in December 2021 suggests mala fide intent, as if in anticipation of a letter of non-confirmation being issued on Dec 27, 2021,” the court said.
Citing a 1996 Court of Appeal decision, Nur Fauzah said probationers have the same rights as confirmed employees in that they cannot be terminated without just cause or excuse.
“The claimant was not given any opportunity to explain his performance to the top management,” she said.
Nur Fauzah also noted that the two extension letters failed to highlight Nazry’s shortcomings or satisfactorily explain why the bank needed to extend his probation further. Neither did it specify what steps he was to take to improve his performance.
“The grounds of the claimant’s non-performance and the guidance he received from his regional manager, who was responsible for overseeing and directly supervising him in achieving his targets, ought to have been stated in detail by (MBSB) in its (extension) letters,” the award read.
The court also said the bank’s complaint that Nazry failed to meet his targets was without basis since its own witnesses admitted that all MBSB branches had failed to meet their projections during the same period on account of the Covid-19 pandemic.
“The court must take into account that during the claimant’s entire probation period, Malaysia was hit by Covid-19. As such, the bank was obliged to be transparent with branch managers on ways to improve their performances to meet the targets in the light of the pandemic.
“The targets were also not revised. It was an unprecedented event and everyone needed to think outside-the-box,” she said.
Mohd Fadil Mohd Yusof and Suhaidi Zakaria appeared for the claimant while Khor Wan Yin and Ho Yin Qi represented MBSB. - FMT

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