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2024 MarsdenLR 794
INDUSTRIAL COURT KUALA LUMPUR
NG WENG KANG – Appellant
Versus
MAXCOMPONENTS SDN BHD – Respondent
Award No: 1378 Of 2024 [Case No: 19/4-707/21]
The Claimant, as a Director and shareholder, was not a 'workman' under the Industrial Relations Act 1967, and his claim of constructive dismissal was without merit.
Headnote:(A) Industrial Relations Act 1967 - Section 2 - Definition of 'workman' - Claimant was a Director and shareholder of the Company, thus not a 'workman' under the Act - Claimant's claim of constructive dismissal as a 'Sales Manager' was devoid of merit as he was never employed as such. (Paras 18, 24, 36, 76)
(B) Claimant's role and authority - The Claimant acted independently in determining the Company's business direction and financial matters, demonstrating he was the controlling mind of the Company. (Paras 44, 50, 56)
Facts of the case:
The Claimant, as a Director and shareholder, alleged constructive dismissal from his role as a 'Sales Manager'. The Company contended he was never employed as such and acted independently in management decisions. (Paras 4-10)
Findings of Court:
The Claimant was not a workman under the Industrial Relations Act 1967 as he held the position of Director and had full control over Company affairs. (Paras 145-149)
Issues: Whether the Claimant was an employee under the Act and the validity of his constructive dismissal claim. (Paras 76-80)
Ratio Decidendi: The court determined that the Claimant's title of 'Sales Manager' was merely for external marketing purposes and that he acted as a Director, thus not qualifying as a 'workman'. (Paras 76-80)
Result: Claimant's case dismissed.
AWARD
Reference
[1] This is a reference made under s 20(3) of the Industrial Relation Act 1967 ("the Act") arising out of the dismissal of Ng Weng Kang (hereinafter referred to as "the Claimant") Maxcomponents Sdn Bhd (hereinafter referred to as "the Company") on 9 July 2020.
Preface
[2] The hearing took place on 15 May 2023, 16 May 2023, 3 August 2023 and 30 January 2024 respectively. The Company called Mr Tiew Chern Wee (COW1) and Ms Lee Shu Shyan (COW2) to testify on behalf of the Company. The Claimant, Ng Weng Kang (CLW1) was the sole witness for the Claimant himself.
[3] The documents which have been marked during the hearing are as follows:
i. Statement Of Claim dated 18 May 2021
ii. Statement In Reply dated 24 June 2021
iii. Rejoinder dated 12 July 2021
iv. Claimant's Bundle of Documents - "CLB1"
v. Claimant's Additional Bundle of Documents - "CLB2"
vi. EPF Form A for 07/2018 - "CL3"
vii. EPF Form A for 07/2019 - "CL4"
viii. EPF Form A for 05/2020 - "CL5"
ix. EPF Form A 06/2020 - "CL6"
x. Company's Bundle of Documents - "COB1"
xi. Company's Additional Bundle of Documents - "COB2"
Factual Matrix
[4] On or around 30 September 2008, the Claimant joined the Company as a Director and shareholder being a business venture with COW1 Mr Tiew Chern Wee ("Mr Steven Tiew"), who is also a Director and shareholder of the Company.
[5] At all material times, the Claimant was a Director and shareholder of the Company holding 25,000 ordinary shares in the Company.
[6] As part of their business venture, the Claimant also formed several companies with Mr Steven Tiew, wherein the Claimant was at all material times a Director and the shareholder of the following companies:
(i) Imagetron Technology Sdn Bhd (Company No 868108-A);
(ii) Maxcomponents (JB) Sdn Bhd (Company No 9333177-U);
(iii) Maxcomponents (Melaka) Sdn Bhd (Company No 935870-V); and
(iv) Max Cuppi Sdn Bhd (Company No 68554-T), formerly known as Katrij Selamat Sdn Bhd (Company No 0968544-T).
[7] The Claimant was at all material times representing the Company and was the mind and will of the Company.
[8] The Claimant had in his role as a Director of the Company determined the business direction of the Company, involved himself in the management of the Company's finance and the management of the employees of the Company.
[9] On 8 July 2020, the Claimant issued his letter of resignation as a Director by forwarding his letter dated 8 July 2020 to the Company's Secretary, SMI Corporate Services Sdn Bhd.
[10] Prior to the Claimant's resignation as a Director of the Company via his letter dated 8 July 2020, the Claimant had informed many of the Company's suppliers and customers that he had resigned.
[11] Immediately, the Company and Mr Steven Tiew, via Ms Winnie's email dated 8 July 2020 denied all allegations made by the Claimant in his letter dated 8 July 2020.
[12] The Claimant also issued a letter dated 9 July 2020 to the Company on his alleged constructive dismissal from the post as a Sales Manager, to which the Company denied and responded accordingly on 17 July 2020.
[13] On 8 July 2020 and 9 July 2020, Mr Steven Tiew had expressed his disappointment over the Claimant's actions and had messaged the Claimant to discuss as to how to settle their Directors and/or shareholders dispute amicably. However, the Claimant was not amenable to discuss it and requested Mr Steven Tiew to speak to his solicitors instead.
[14] The Claimant had also agreed with Mr Steven Tiew and asked the Company to issue an official notice about his resignation when Mr Steven Tiew called him on 9 July 2020 to enquire if he had informed the Company's suppliers and customers about his resignation.
[15] In view of the Claimant's resignation, the Company had no choice but to inform their suppliers and customers officially that the Claimant had resigned from the Company.
[16] On 10 July 2020, the Claimant came back to the Company's office allegedly to clear and pack up his belongings. However, the Company subsequently found out
