Employees' rights under an employment contract prevail over claims of unjust enrichment when claiming unpaid salaries.

[1] This is an appeal against the decision of the Assistant Director of Labour, Subang Jaya, dated 7 September 2020, who dismissed the claim for the balance of the appellant's salary but allowed the claim for commission for the sum of RM9,070.

The Brief Facts

[2] The respondent is in the business of sourcing and supplying domestic maids. The appellant started her employment with the respondent company in 2016. By the letter dated 15 March 2016 ("the first letter of appointment"), the appellant was appointed as the sales and marketing executive with a probation salary of RM2,000. The appellant was also to be paid a commission based on the sales, ie, the number of cases that she could secure for the respondent.

[3] In her evidence at the Labour Court, the appellant testified that her scope of work was to find customers who need the services of domestic maids, secure a contract with them, send the maids to the respective customers, collect payment from the customers and make arrangements for the renewal of the work permits of the said maids.

[4] On 15 June 2016, the appellant was confirmed in her job ("the letter of confirmation"). The letter of confirmation, which was dated on the same day, reads inter alia as follows:

After careful evaluation of your performance this is to inform you that with effect from 15 June 2016, you have been moved to Confirmation with our agency. You will now be Sales Executive and will report to Ng Jing Hao as the Sales Director.

Upon the said confirmation, the appellant's basic salary was increased to RM2,200. On 15 December 2017, both parties executed a contract of appointment ("contract of appointment") confirming the "first tier sales salary" of the appellant for RM2,200.

[5] Subsequently, by a letter dated 20 December 2018 [Exh E-1], the appellant's basic salary was increased to RM2,400.

[6] However, from January 2018, the basic salary of the appellant, which was RM2,400, was deducted from the commission that the appellant was entitled through her monthly sales. The appellant also alleged her commissions for the sales she closed in December 2019, February, March, May and June 2020.

[7] At the Labour Court, the appellant's claim against the respondent was for a sum of RM67,550 being the balance of unpaid salaries and commissions in 2018, 2019 and 2020. Particulars of the claim are as follows:

(a) Unpaid salaries for 2018 - RM22,000;

(b) Unpaid salaries for 2019 - RM28,800;

(c) Unpaid commission for December 2019 - RM1,050;

(d) Unpaid commission for February 2020 - RM9,910;

(e) Unpaid commission for March 2020 - RM4,770; and

(f) Unpaid commission for May and June 2020 - RM1,020.

At The Labour Court

[8] At the time of filing her claim, the appellant was no longer an employee of the respondent, having tendered her resignation by giving a one-month notice on 18 February 2020.

[9] After having heard the evidence, the learned Assistant Director of Labour ("ADL") concluded that the appellant was an employee under s 69B of the Employment Act 1955 . Section 69B (1) provides that:

Notwithstanding the provisions of this Act, the powers of the Director General under para 69(1)(a) shall extend to employees whose wages per month exceed two thousand ringgit but does not exceed five thousand ringgit.

In the circumstances according to the learned ADL, the Employment Act does not apply to the appellant. Instead, in the determination of the dispute, the Labour Court had relied on the contract of employment between the parties.

[10] The learned ADL then referred to the letter in Exh E-1, which according to him, should be read to mean that t