Introduction
A recent decision of the Industrial Court in Fatin Hamamah Binti Jamaluddin v COMM-IT Consultancy Services Sdn Bhd (Award No. 428 of 2026) provides important guidance on the evidential burden in poor performance dismissals and addresses the increasingly relevant issue of after-hours workplace communication.
While Malaysia currently does not recognise a statutory “right to disconnect”, the Court’s reasoning reflects an emerging judicial sensitivity toward maintaining reasonable boundaries between work obligations and personal time in an era of constant digital connectivity.
The case also serves as a useful reminder of the Industrial Court’s scrutiny of poor performance dismissals, particularly where such allegations are premised on vague expectations rather than clearly defined duties.
Facts of the Case
The claimant was employed by the respondent company as a Project Manager beginning January 2018 and was confirmed in her position following completion of her probationary period. In October 2019, she received a show cause letter alleging several instances of poor performance. These allegations related to project management responsibilities, staff communication issues, reporting obligations, and an alleged unwillingness to respond to urgent official matters after office hours.
Following an internal meeting with management on 14 October 2019, the company terminated the claimant’s employment on the basis of poor performance. The claimant subsequently lodged a representation under section 20 of the Industrial Relations Act 1967, contending that her dismissal was without just cause or excuse.
Employer’s Allegations
The employer relied on seven allegations of poor performance. However, after evaluating the evidence, the Industrial Court found that the allegations were largely unsupported by particulars and were not substantiated through documentary or testimonial evidence.
Several of the charges were framed in vague and general terms without specifying the precise conduct complained of. In other instances, the alleged failures appeared to arise from unclear instructions or the absence of clearly defined procedures within the organisation.
The claimant was able to provide explanations for many of the issues raised, including documentary evidence demonstrating that she had carried out the tasks assigned to her. The Court noted that these explanations were largely unrefuted by the employer.
Significantly, the Court observed that the employer’s dissatisfaction with the claimant appeared to arise primarily from a breakdown in communication and interpersonal friction between the claimant and her superior, rather than any demonstrable deficiency in her work performance.
In this regard, the Court cautioned against attempts to characterise subjective dissatisfaction or workplace tensions as “poor performance” where there is no objective evidence of incompetence.
After-Hours Communication and the “Right to Disconnect”
One of the allegations against the claimant was that she had been unwilling to respond to urgent official matters after office hours. The Court rejected this allegation on two principal grounds.
First, the employer failed to identify any specific incidents in which the claimant had refused to respond to urgent work matters outside normal working hours. The absence of concrete incidents or examples rendered the allegation inherently speculative.
Second, and more fundamentally, the Court held that the employer had not established that responding to communications after office hours formed part of the claimant’s contractual duties or job scope.
In this context, the Court observed that employees are generally entitled to maintain a reasonable boundary between their work obligations and personal time. This concept, increasingly referred to as the “right to disconnect,” reflects the growing recognition that modern communication technologies have blurred the boundaries between working hours and personal time.
Absent evidence that after-hours availability was a defined requirement of the claimant’s role, the Court concluded that the claimant could not be faulted for failing to respond to communications outside normal working hours.
Framing of Charges
The Court also highlighted a recurring issue in disciplinary proceedings, the mischaracterisation of alleged misconduct.
In several instances, the employer attempted to frame alleged non-compliance with instructions as poor performance. The Court noted that such conduct, if proven, may more appropriately fall within the category of insubordination or refusal to follow instructions, rather than poor performance.
This distinction is legally significant because the nature of the charge determines the evidential burden placed on the employer and the manner in which the employee must be afforded an opportunity to respond.
Where an allegation is improperly framed, the employer risks undermining its own disciplinary case.
Decision of the Industrial Court
Having examined the totality of the evidence, the Industrial Court concluded that the employer had failed to establish the alleged poor performance on a balance of probabilities.
The Industrial Court therefore held that the claimant’s dismissal was without just cause or excuse.
Given the lapse of time and the fact that the claimant had since secured alternative employment, reinstatement was considered inappropriate. Instead, the Court awarded the claimant back wages and compensation in lieu of reinstatement amounting to RM259,900.
Implications for Employers
This decision highlights the importance of clearly defining performance expectations and job responsibilities when managing employee performance issues.
Employers should ensure that allegations of poor performance are specific and supported by clear particulars, including concrete evidence demonstrating failure to perform duties within the employee’s defined role. Vague complaints or subjective dissatisfaction are unlikely to withstand scrutiny before the Industrial Court.
Poor performance is distinct from insubordination, attitude issues, or personality conflicts. If the underlying issue relates to attitude or a refusal to follow instructions, it should be addressed and charged accordingly, rather than being mischaracterised as poor performance. Instructions must be clear, and employees cannot be held accountable for failing to follow instructions that are unclear or informal. To avoid misunderstandings, oral instructions should ideally be documented in meeting minutes or confirmed via email.
The decision also underscores the importance of clearly documenting expectations relating to after-hours availability. In the absence of contractual provisions, workplace policies or justification requiring employees to remain contactable outside working hours, employers may face difficulty relying on such expectations as a basis for disciplinary action.
Conclusion and Key Takeaways
Although Malaysian employment law does not yet recognise a statutory right to disconnect, the Industrial Court’s observations in this case suggest that the judiciary is mindful of the need to balance organisational expectations with employees’ legitimate interest in maintaining boundaries between work and personal time.
As digital communication continues to extend the reach of the workplace beyond traditional office hours, employers may wish to review their internal policies and employment contracts to ensure that expectations regarding after-hours work-related communication are clearly articulated and consistently applied.
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For further information, please contact:
Janice Wong Heu Fun, Partner, ZUL RAFIQUE & partners
janice.wong@zulrafique.com.my
