The definition of 'employee' under section 2(5) includes workers engaged under contracts of service, irrespective of contract nomenclature or duration, emphasizing the control exercised by the employer.

JUDGMENT

Noorin Badaruddin J:

[1] This is the Appellant's appeal against the decision of the Social Security Appellate Board ("the Board") dated 19 November 2019 affirming the decision of the Director General of the Social Security Organisation ("SOCSO/PERKESO") dated 3 November 2016 wherein the latter had determined that one Puan Khairunnisa binti Jalalludin ("Khairunnisa") was an employee of the Appellant within the meaning of s 2(5) of the Employees' Social Security Act 1969 ("the Act") and the Appellant was accordingly required to pay contributions on her behalf.

Background Facts

[2] Khairunnisa was hired by the Appellant on 1 April 2016 as their Direct Sales Agent to promote ASTRO TV packages to new subscribers (and upgrade packages to the existing subscribers) by conducting and/or participating in door-to-door activities, appointments, booth sales and promotional events.

[3] The Appellant and Khaiarunnisa had entered into a contract ("the contract") for service for the period of 1 April 2016 until 31 December 2016.

[4] Under the contract, Khairunnisa received a fixed Agent Fee of RM1,650.00 and earned a commission based upon sales performed by her. The fixed Agent Fee was paid notwithstanding her attendance and was paid in consideration of the Direct Sales Agent performing all of the obligations.

[5] On 12 April 2016, Khairunnisa was involved in a motorcycle accident when she was on her way to work. The accident happened around 9.30 am in Bukit Beruntung, Selangor. She suffered a fractured on her left shoulder and from permanent brain cell damaged which caused a reduction in her hearing, taste and smell sensory abilities. She was given medical leave from 12 April 2016 until 29 July 2016.

[6] On 26 August 2016, Khairunnisa tendered her resignation letter to the Appellant which was accepted by the Appellant on 8 September 2016.

[7] On 20 September 2016, the Director of SOCSO Selangor received a report lodged by Khairunnisa against the Appellant who refused to report the accident and their failure to make statutory contributions for her under the Act. In her report, Khairunnisa stated the followings:

"Saya ingin membuat aduan ini kerana selepas mengalami kemalangan semasa perjalanan ke tempat kerja, saya kini telahpun kekurangan keupayaan deria mendengar, menghidu dan rasa. Punca ini akibat saraf otak rosak kekal dan tidak boleh sembuh seperti asal, gara-gara kemalangan tersebut. Tujuan aduan saya ialah agar nasib saya terbela dan juga mampu menwakilkan aduan ini kepada bekas rakan-rakan sejawat dengan saya sebelum ini."

[8] On 20 September 2016, the Respondent took down Khairunnisa's statement and she had furnished supporting documents such as salary slips, medical leave certificate and employees pass.

[9] On 3 November 2016, the Director of SOCSO Selangor decided that Khairunnisa was the Appellant's employee under s 2(5) of the Act and ordered the Appellant to produce an accident report together with other requested documents to the Respondent. The Appellant was informed that they had until 17 November 2016 to file an appeal to the Board.

[10] On 28 August 2017, the Appellant filed an appeal to the Board against the decision of the "Ketua Pengarah PERKESO Negeri Selangor" dated 3 November 2016. The Appellant maintained that Khairunnisa was not their employee under s 2(5) of the Act.

[11] Mohamad Faizul Hadzri Bin Zakaria, the investigation officer of the Respondent ("IO") took down Khairunnisa's statement about her employment with the Appellant and on 26 July 2018, the IO completed his investigation and gave his opinion that Khairunnisa was not an employee of the Appellant.

[12] Upon receiving the investigation report and the opinion of the IO, the Director of SOCSO, Selangor maintained his decision that Khairunnisa was the Appellant's employee.

[13] On 19 November 2019, the Board affirmed the decision of the Director of SOCSO Selangor and ordered the Appellant to make a statutory contributions for Khairunnisa under the Act. Hence, the