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2023 MarsdenLR 2694
INDUSTRIAL COURT IPOH
SUNDARAM ANNAMALAY – Appellant
Versus
PRINSIP ENGINEERING SDN BHD & ANOR – Respondent
Award No: 2270 Of 2023 [Case No: 10/4-1970/21]
The court established that both Respondent Companies were employers of the Claimant under a contract of service, and terminated his employment without just cause or excuse, violating principles of natural justice.
Headnote:(A) Industrial Relations Act 1967 - Section 2, Section 20 - Employment relationship - Claimant alleged wrongful dismissal by both Respondent Companies, claiming both were his employers. Court found both companies exercised control over Claimant's employment and were bound by his fixed-term contract. Court ruled dismissal was without just cause or excuse due to lack of investigation and failure to follow due process. (Paras 44, 89, 100)
(B) Employment Contracts - Nature of contract - Court determined that Claimant was engaged under a contract of service, not a contract for services, thus establishing an employer-employee relationship. (Paras 46, 52, 86)
(C) Burden of Proof - In dismissal cases, the burden lies with the employer to prove just cause for termination. Court found Respondent Companies failed to substantiate grounds for dismissal. (Paras 90, 92)
Facts of the case:
Claimant was employed as a Structural Lead Supervisor under a fixed-term contract with the Respondent Companies. He was dismissed without a proper inquiry or substantiated reasons, leading to his claim of wrongful dismissal. (Paras 3, 10, 100)
Findings of Court:
Court found that both Respondent Companies were the Claimant's employers and that the dismissal was unlawful due to lack of just cause or excuse, ordering payment for the remainder of the contract. (Paras 100, 109)
Issues: Whether the Claimant was a workman under the Act, whether both Respondent Companies were liable as employers, and whether the dismissal was with just cause or excuse. (Paras 44, 100)
Ratio Decidendi: The Court ruled that the Claimant's employment was governed by a contract of service, establishing a master-servant relationship, and that the dismissal lacked just cause due to procedural failings by the Respondent Companies. (Paras 46, 100)
Result: Claimant's dismissal deemed unlawful; Respondent ordered to pay remainder of fixed-term contract. (Paras 109)
| Table of Content |
|---|
| 1. factual background of the dismissal case (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 2. claimant's arguments regarding employment status (Para 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 3. prinsip's defense against being employer (Para 19 , 20 , 21 , 22 , 23 , 24 , 25) |
| 4. technip's defense against being employer (Para 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 5. witness testimonies and documents submitted (Para 35 , 36) |
| 6. role of the industrial court in dismissal cases (Para 37 , 38 , 39 , 40 , 41 , 42) |
| 7. burden of proof in dismissal cases (Para 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54) |
| 8. evaluation of evidence and findings (Para 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85 , 86 , 87 , 88 , 89 , 90 , 91 , 92 , 93 , 94 , 95 , 96 , 97 , 98 , 99 , 100 , 101 , 102 , 103 , 104 , 105 , 106 , 107) |
| 9. court's final decision and order (Para 108 , 109) |
[1] This is a reference by the Honourable Minister of Human Resources of Malaysia dated 20 May 2021 pursuant to s 20(3) of the Industrial Relations Act 1967 , which was received by the Industrial Court of Malaysia on 31 May 2021, arising out of the alleged dismissal of Sundaram A/L Annamalay (hereinafter referred to as "the Claimant") by Prinsip Engineering Sdn Bhd (hereinafter referred to as "the Company") on 22 December 2020.
Factual Background
[2]Vide an Interim Award No. 626 of 2022 [[2022] MELRU 626] dated 7 April 2022, this Court allowed the Claimant's Application vide encl 33 for Technip Geoproduction (M) Sdn Bhd (now known as Technip Energies (M) Sdn Bhd) be joined as a party as the 2nd Respondent Company in this claim pursuant to s 29(a) of the Industrial Relations Act 1967 , as the Claimant avers that, at all material times, Technip Energies (M) Sdn Bhd (hereinafter referred as "Technip") had appointed Prinsip Engineering Sdn Bhd (hereinafter referred as "Prinsip") as its sub-contractor and/or agency and, therefore, for all intends and purposes, the Claimant pleads that both 1st and 2nd Respondent Companies were the Claimant's employer.
[3] The Claimant was offered a position as a Structural Lead Supervisor to supervise Long Son Project in Ba Ria, Vung Tau Province in Vietnam until 30 June 2022. The 2nd Respondent Company; Technip, had approved his CV, offered the Claimant the said employment, oversaw his medical examination, COVID swab test, and made sure all the requisite documents were in order to his mobilisation to Vietnam.
[4] The Claimant accepted the offer with Technip and was hired by1st Respondent Company; Prinsip Engineering Sdn Bhd (as Technip's appointed agency) vide a fixed-term Employment Contract dated 17 July 2020 (at p 1 of CLB-1) signed by the Claimant and Prinsip's General Manager; one Chua Jong Ton. However, both 1st and 2nd Respondent Companies denied being the Claimant's employer, and further denied being the party that carried out the Claimant's dismissal from the project site in Vietnam. Therefore, the dismissal is in dispute.
[5] On 7 August 2020, the Claimant was mobilised to the site at Vietnam to begin his contract tasks as the Structural Lead Supervisor and officially reported to Mr Kong Kin Lai (SM Superintendent) as his immediate superior and to Antonio Luca Repole (Block B Construction Manager) at the site. As a Structural Lead Supervisor, the Claimant's duties and responsibilities are to supervise a project managed by Technip's Long Son Project in Ba Ria, Vung Tau Province, Vietnam, and began working on site on 20 August 2020. His job functions at the site includes, but not limited to, monitoring, coordinate, supervision, reporting and overseeing overall steel fabrication and erection at fabrication workshop and site, and to monitor work schedule to update his superiors at the site.
[6] On 20 October 2020, the Claimant received an email from Technip(at pp 50-51 of CLB-1) informing him that the Technip's site team had dec
