The determination of employee status under the Employees Social Security Act hinges on established tests and the application of statutory obligations, which necessitates judicial interpretation despite statutory ouster provisions.

Awang Armadajaya Awang Mahmud JC:

(Enclosure 1 And 8)

1. Introduction

[1] This is an application vide the Originating Summons (encl 1) seeking the following reliefs:

i. A declaration that the Agreement executed between the Mandong Transport and Trading Sdn Bhd ("the Applicant") and Hussein bin Wih as per annexure A is a Contract for Service

ii. A declaration that the said Hussain bin Wih is an independent contractor who executed an agreement to provide services on a commission basis and hence was not an employee under the meaning of s 2(5) Employees Social Security Act 1969 (Act 4)

iii. A declaration that the outstanding contributions and the late payment interest claimed by the Respondent in relation to the said Hussain bin Wih is null and void

iv. No order as to cost

v. Futher and other reliefs deemed appropriate by this Honourable Court.

2. The Cause Papers

[2] The cause papers in the 2 applications (encl 1 and encl 8) are as follows:

Enclosure 1

a. The Originating Summons dated 26 March 2019 (encl 1)

b. Applicants Affidavit-in-Support affirmed 31 May 2019

c. Respondents Affidavit-in-Opposition affirmed on 31 May 2019

d. Applicants Affidavit-in-Reply affirmed on 24 June 2019

Enclosure 8

a. Notice of Application to strike out the Originating Summons (encl 8)

b. Respondents Affidavit-in-Support affirmed on 31 May 2019

c. Applicants Affidavit-in-Opposition affirmed on 24 June 2019

d. Respondents Affidavit-in Reply affirmed on 11 July 2019

3. The Background Facts

[3] The Applicant is a transport company which provides lorry transport to its customers. According to the Applicant, the drivers are free lancers (of whom Hussain bin Wih is one of them) to drive the lorries when requested by customers. In ensuring the work is done properly, there is an agreement between the Applicant and the drivers. Hussain bin Wih was in this contract from 1 November 1996 until 30 November 2003 (6 years). This agreement is found in exh "W-1" in encl 2 ("Affidavit-in-Support").

[4] On 15 June 2015, the Respondents officer visited the Applicants premises after the son of the former driver (Hussain bin Wih) made a Social Security Organisation (SOCSO) claim with the Respondent. The Respondent was informed that Hussain was an employee of the Applicant (a company) and therefore the Applicant was liable to make the contribution for the said period of the employment of the former driver (November 1996 until November 2003).

[5] On the same day, a Notice of Compliance was duly issued by the Respondent. The Applicant paid the amount of RM3,160.80 as contribution on 9 January 2017.

[6] On 25 September 2017, a further inspection was made by officers from the Respondents organisation and a further Notice of Compliance was issued to the Applicant to settle the late Payment Interest amounting to RM69,300.00. The Applicant filed an appeal against the said amount for a reduction of the sum to be paid to the Respondent. Vide a letter dated 14 December 2017, the Respondent informed the Applicant that the appeal was rejected. A 2nd appeal letter was sent to the Respondent which was replied by the Respondent vide a letter informing the Applicant that the Applicant is liable for a criminal prosecution in the event that the late payment interest are not paid in full.

[7] An email was sent by an Employment Consultant to the Respondent. The Respondent sent reminder letters on the settlement of the late payment interest. The Respondent then applied for a summons against the Applicant in the Kota Tinggi Magistrates Court (Case No: J87-239-12-2018) and the Summons issued by the Magistrates Court was served on the Applicant.

[8] The Applicant pleaded not guilty to the charge before the Learned Magistrates in Kota Tinggi Magistrates Court and the case has been scheduled for hearing on 29 August 2019. (after the delivery of this decision on 17 May 2020, I was informed by the Learned Counsel for the Applicant that the Applicant was convicted by the Magistrates Court in Kota Tinggi and a fine of RM20