The judicial review confirmed that the applicants, bound by fixed-term contracts, could not claim a legitimate expectation of permanent employment.

[1] The applicants in this case were musicians formerly employed by the Malaysian Philharmonic Orchestra (the MPO), the second respondent. The applicants sought an order of certiorari to quash an award of the Industrial Court [reported at [2016] 1 MELR 180; [2015] 2 LNS 1034], which ruled that the applicants were not permanent employees and which rejected the claim by the applicants that they had been unfairly dismissed.

[2] This Court dismissed the application for certiorari for the reasons set out here.

Background Facts

[3] The material background facts of this case are as follows.

[4] Each of the applicants had been employed by the MPO pursuant to a series of employment contracts. Some of the applicants had been employed since 1998. Each of these employment contracts were expressed to be for a fixed term. These contracts were renewed upon the expiry of their tenure. In the case of the fifth applicant, for example, his employment contract had been renewed six times.

[5] In 2010, each of the employment contracts in respect of each applicant was renewed. These 2010 contracts contained certain provisions that were not contained in their predecessor contracts. Among others, the 2010 contracts contained a clause that specifically acknowledged that the employment relationship between each applicant and the MPO was not in the nature of a long-term relationship (Clause 3.3), as well as an entire agreement clause (Clause 22.1), both of which were not present in the predecessor contracts.

[6] Both of these new clauses are reproduced below.

3.3 The Musician acknowledges and agrees that there is no agreement, express or implied, between the Employer and the Musician, for continuing or long- term employment beyond the Term of this Agreement, unless mutually agreed. The employment relationship between the Employer and the Musician is completely, and in all respects, at will. Therefore, subject to Clause 16 below, the Employer and the Musician, each have the absolute right to terminate this Agreement at any time.

22.1 This Agreement and the documents expressly referred herein contain the entire agreement between the parties with respect to the subject matter hereof, supersede all previous agreements and understandings between the parties, including and previous Contract of Employment between the parties, and may not be modified except in the manner described therein or by an instrument in writing signed by the duly authorized representatives of the parties. Any existing Agreement shall terminate on 15th August 2010 (without prejudice to the rights and obligation accrued to the parties).

[7] The applicants contended that at the time these clauses were proposed in connection with the contract renewal in 2010, they had raised their concerns to the then chief executive of the MPO, Karina Ridzuan, regarding the impact of these clauses on their continued employment. The applicants further contended that Karina Ridzuan had provided an assurance to the applicants that these clauses would not be used arbitrarily against the employees and that they would not be used to vitiate the applicants' right and expectation to continuous employment.

[8] The MPO offered an incentive known as a Senior Service Increment to its musicians who have completed 4 years of service. In addition, the MPO also awarded a one-off payment of USD5,000 as a Long Service Bonus to those who have worked for more than 10 years. The first, second, fourth and fifth applicants were recipients of the Senior Service Increment and the Long Service Bonus.