The court established that a series of fixed-term contracts can constitute permanent employment if the employer's conduct and the nature of work indicate a lack of genuine necessity for fixed-term arrangements.

JUDGMENT

Amarjeet Singh Serjit Singh J:

Introduction

[1] On 22 January 2024, I allowed the appeal by the appellant, Azrell bin Mohamad, by setting aside the award of the Industrial Court which had dismissed his claim of constructive dismissal by his then employer, National Aerospace & Defence Industries Sdn Bhd The claim in the Industrial Court was made pursuant to s 20 of the Industrial Relations Act 1967 .

[2] This judgment contains the reasons for my decision. In this judgment, the appellant will be referred to as "the claimant" and his employer as "the company".

Background Facts

[3] The claimant commence employment on 19 November 2003 as Finance Manager with PJS Industries Sdn Bhd, which was the company's largest shareholder. In accordance with the clause on transfer and transferability contained in the employment contract, the claimant was transferred to the company effective 1 September 2006. In a letter dated 23 February 2011, the claimant resigned from the company and his resignation was accepted on 17 March 2011.

[4] Interestingly, the claimant was offered, vide letter dated 10 June 2013 the post of General Finance Manager on a contractual basis for the period 17 June 2013 to 31 December 2013. The offer was accepted by the claimant. Thereafter, his contract period was extended for the following periods:

(i) Appointment letter dated 27 November 2013 for the period 1 January 2014 to 31 December 2014;

(ii) Appointment letter date 16 December 2014 for the period 1 January 2015 to 31 December 2015;

(ii) Appointment letter date 21 December 2015 for the period 1 January 2016 to 31 December 2016;

(iii) Appointment letter date 16 December 2016 for the period 1 January 2017 to 31 December 2017;

(iv) Appointment letter date 20 December 2017 for the period 1 January 2018 to 31 December 2018;

(v) Appointment letter dated 9 January 2019 for the period 1 January 2019 to 31 December 2019; and

(vi) Appointment letter date 15 January 2020 for the period 1 February 2020 to 31 December 2020.

[5] In a letter dated 18 January 2021, the company informed the claimant that his services would only be extended only for one month, that is, from 2 January 2021 to 31 January 2021, and thereafter terminated. The claimant treated his termination by the company as a dismissal without just cause and excuse while the company's position was that the claimant was under a fixed-term contract whose services vide the contract had expired on 31 December 2021.

[6] It was the claimant's case that the company's actions of consistently renewing the claimant's contract every year is evidence that the claimant is in permanent employment with the company. The claimant made representations to the Industrial Relations Department under s 20 of the Industrial Relations Act 1967 that he was dismissed without just cause and excuse. The matter was referred by way of reference to the Industrial Court for adjudication. The Industrial Court adjudicated the matter and ultimately dismissed the claim.

The Award Of The Industrial Court

[7] The learned Chairman of the Industrial Court ("the learned Chairman"), applied the established law on the function of the Industrial Court which was to determine whether the claimant was dismissed and secondly that his dismissal was with just cause and excuse. In this regard, it is recognised that any act which has the effect of bringing the employment contract to an end and the means resorted to by an employer is of little significance. This is because the law recognises that any contractual termination, constructive dismissal, non-renewal of contract, forced resignation, or retrenchment are all species of the same genre, which is, "dismissal" (see Goon Kwee Phoy v. J & P Coats (M) Bhd, 1981 MarsdenLR 319 ; Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd; [1987] 1 MLRA 346; [1988] 1 MLJ 92; [1988] 1 CLJ (Rep) 298; and Colgate Palmolive (M) Sdn Bhd v. Yap Kok Foong; [1998] 2 MELR 815; [1998] 3 ILR 843; [1998] 2 ILR 965).

[8] The learned Chairman said