Fixed-term employment contracts cannot be terminated without just cause or excuse under Malaysian law, and the employer bears the burden of proof in dismissal cases.

AWARD

Zulhelmy Hasan:

Reference

[1] This is a reference made by the Director General of Industrial Relations Malaysia dated 6 September 2021 pursuant to s 20(3) of the Industrial Relations Act 1967 which was received by the industrial Court on 28 September 2021 arising out of the alleged unfair dismissal of Azman Bin Isa (hereinafter referred to as "the Claimant") by Technip Geoproduction (M) Sdn Bhd (hereinafter referred to as "the Company") on 12 December 2020.

Factual Background

[2] The hearing of this matter was conducted and heard before YA Puan Azwarnida binti Affandi, the Chairperson at the Industrial Court of Malaysia, Johore Branch on 16 November 2022 and 6 March 2023. However, due to unforeseen circumstances and transfer of the previous presiding Chairperson to another government agency, and to expedite the disposal of this matter in due course, the President of the Industrial Court of Malaysia on 27 November 2024 had transferred this matter to the Industrial Court of Malaysia, Perak Branch for the Chairman of the said division to adjudicate and handed down the Awards pursuant to s 22(2) and 22(3), and s 29(g) of the Industrial Relations Act 1967 .

[3] The Claimant was once employed by the Company for RAPID project in Penggerang, Johor. He left the Company after the expiry of his fixed-term contract. Thereafter, sometime around May 2020, the Company received an email from the Claimant applying for a Structural Supervisor position wherein that was around the time, the project site requires such manpower (pp 5-6 of CLB-1). The Company then conducted an internal review of the Claimant's application and was satisfied that the Claimant fitted into the budget and specifications requirement at the project site. Thereafter, the Company processed the Claimant's application by forwarding it to TPSK site office for the site's approval. In the meantime, the Company also set out the essential terms and conditions of the said position to the Claimant to obtain confirmation of his interest in the said position (pp 3-4 of CLB-1). The Company was informed that TPSK site office accepted the Claimant's application and requested for the Claimant's placement at the site project.

[4] The Claimant in this representation was offered a position as a Structural Supervisor on a project managed by the Company in Long Son Ward, Vung Tau City, Ba Ria-Vung Tau in Vietnam until 31 July 2022. Due to working permit requirements and the labour law in Vietnam, the Company appointed a Vietnamese human resources provider company, Minh Viet Co Ltd as an agent to supply manpower from Malaysia to the Company's project located in Vietnam.

[5] The Claimant accepted the offer with the Company and was hired by the Company with Minh Viet Co Ltd as their agent vide a fixed-term employment contract dated 7 August 2020. The Claimant's fixed-term employment begins from 7 August 2020 until 31 July 2022 with net basic salary is fixed at USD 2,857 per month. Other allowances such as meals, accommodation and transportation will be provided by the Company, as per the practice at Long Son site. Mobilization, demobilization and rotation tickets shall also be provided by the Company. The Claimant's working hours are would be 8 hours a day for 6 days per week as the Claimant works for 11 weeks and rest for 2 weeks including travelling days with fully paid leave. The Claimant subsequently was mobilized to Vietnam to begin his contract as a Structural Supervisor, and began working on 22 August 2020, reporting to Mr Astin Choi, his superior at the site, and to the Company, as well.

[6] On 15 October 2020, the Claimant applied for leave for a total of seven (7) days from 26 October 2020 to 1 November 2020 which was approved by the Company's headquarters at Kuala Lumpur. However, the Claimant received an e-mail from the Company informing him of a complaint reported to the Company's site Management by his immediate superior, Mr Astin Choi vide an email dated 24 October 2020 whic