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2021 MarsdenLR 2994
HIGH COURT MALAYA MUAR
TEKUN CONCRETE (M) SDN BHD – Appellant
Versus
ZULKAFAH NORAZRI – Respondent
[Civil Appeal No: JB-16-2-04/2021]
The court affirmed that an employee's status under the Employment Act is determined by the nature of the work relationship, reflected in contractual documentation.
Headnote:(A) Employment Act 1955 – Contract of Service – Appeal against Director-General of Labour's ruling on unpaid salaries – Respondent confirmed as employee, entitled to basic salary – Factors considered include confirmation letter, payment slips, control over work, and statutory obligations – Court upheld Director-General's decision. (Paras 1-78)
Facts of the case: The Respondent worked as a Crane Lorry Driver from 4 July 2017, with a confirmation letter indicating unchanged basic salary. Complaints regarding salary structure led to a Labour Department intervention.
Findings of Court: The court found substantial evidence showing an employer-employee relationship contrary to the Appellant's claims.
Issues: Employment status of the Respondent and obligation of the Appellant to pay basic salary.
Ratio Decidendi: The court emphasized the importance of documentary evidence over witness testimony in contractual disputes, interpreting contracts based on the intention implied by documented terms.
Result: Appeal dismissed with costs.
JUDGMENT
Introduction
[1] This is an appeal against the decision of the Director-General of Labour in Muar given on 31 March 2021 whereby the Director- General of Labour (through the Deputy Director of Labour in Muar) ordered that the Appellant / Defendant to pay the sum of RM18,266- 95 being the balance of salaries for the period between July 2017 until September 2020.
[2] The cause papers are as follows:
i. Notice of Appeal.
ii. Appeal Records.
iii. Supplementary Appeal Records.
Background Facts
[3] The Respondent began working as a Crane Lorry Driver on 4 July 2017 and was given an offer letter dated the same. On 9 October 2017 the Respondent was confirmed in his position as a Crane Lorry Driver. In the confirmation letter, it was written that the "Basic salary remains unchanged". He worked for 8 hours a day from Monday to Saturday. He has a family with his family and 3 children.
[4] The Respondent had for many years, complained to the management of the Appellant (a company) but it was said to have fallen on deaf eyes. The Appellant was said to have taken from the trips allowance to pay the basic salary and the Respondent's view was that this tantamount to oppression while the Appellant was of the view that the Respondent is not an employee and hence not entitled to a basic salary. Hence the complaint to the Labour Department and this appeal.
The Issues In This Appeal
i. Whether the Respondent is an employee of the Appellant
ii. Whether the Appellant is legal obliged to pay a basic salary to the Respondent
I shall deal with the issues accordingly.
i. Whether The Respondent Is An Employee Of The Appellant
[5] It is not in dispute that the Respondent began working as a Crane Lorry Driver on 4 July 2017 and was given an offer letter dated the same. On 9 October 2017, the Respondent was confirmed in his position as a Crane Lorry Driver. In the confirmation letter, it was written that the "Basic salary remains unchanged". He worked for 8 hours a day from Monday to Saturday.
[6] It was submitted by the Learned Counsel for the Appellant that the Respondent is not an employee of the Appellant for the following reasons:
a. The confirmation letter as found in encl 4 p 90-96. In the basic salary is left blank and hence there is no basic salary.
b. The Respondent is only paid per trip basis and not bound by the Appellant (as a company or employer).
[7] I have perused over the said confirmation letter which is not disputed by any parties. I found a few matters which is of significance:
i. The letter is intituled "appointment letter".
ii. It has a Worker ID which is 8274.
iii. The letter head bears the name "Tekun Concrete (M) Sdn Bhd"
iv. The opening of the letter is "The management is pleased to inform you that following your interview, we are pleased to offer you the position as Driver Crane in Logistic department under the following term and conditions...".
v. There is a cl 2 entitled "Job Title" and cl 2 February states "Your appointment shall commence on 3 July 2017 and you are to report duty on this date. The scope of work shall be not limited to the terms and conditions specified herein...".
vi. Clause 3 is on Remuneration.
vii. Clause 4 is on Hours of employment.
viii. Clause 5 is on Holidays.
ix. Clause 6 is on leave of absence.
x. Clause 7 is on pension, There is no pension scheme applicable but cl 7.2 states that the "Letter of Appointment is valid only until age 60s".
xi. Clause 8 is on probation period which is specified at 3 months.
xii. Clause 9 is on EPF, SOCSO and Income Tax.
xiii. Clause 10 is termination of employment clause.
xiv. Clause 11 is on confidentiality.
xv. Clause 12 is non solicitation of customers.
xvi. Clause 13 is on Disciplinary Rules and Company Policies.
xvii. Clause 15 on the return of company's documents. xviii. Clause 16 is on absolute assignment of design right.
[8] I shall found that the payment slip of the respondent (which is not in dispute) which as an example at p 241 encl 4, clearly states EPF c
