A constructive dismissal claim requires proof of a contract of service, which was not established by the claimant in this case.

[1] The Ministerial reference in this case required the court to hear and determine the claimants complaint of dismissal by the company on 19 March 2015 and was received by the Industrial court on 10 February 2016.

Factual Matrix

[2] The claimants claim was that he had been constructively dismissed from his employment by the company on 19 March 2015 after having worked there on a purported contract of service for a period of five months commencing 1 October 2014 as a Project Director. At that time, the claimant was about 64 years of age. Prior to working with the company, the claimant was a property broker with another company in Kuala Lumpur called Carey Real Estate Sdn Bhd ("CRESS").

[3] The claimant claimed to have resigned from CRESS on 26 September 2014 in order to take up the employment offer from the company. During the period of the employment, the claimant had been given a room at the companys premises as well as keys to the office and access card to the parking. He claimed to have attended some meetings on prospective land/property purchases. His last drawn salary was RM10,000 plus expenses. Therefore, he contended that based on these facts, he was an employee of the company.

[4] The claimant was paid part of his salary for the months of October to December 2014 and January 2015. He claimed that the company failed to pay his February and March 2015 salary and he tried on many occasions to speak to the companys Director but he was unsuccessful. The claimant sent a letter dated 2 April 2015 to the company claiming that the company was in breach of its contractual terms and he considered himself to be constructively dismissed because of non-payment of his salary.

[5] The company contended that there was no contract of employment between it and the claimant and that he was only a consultant that it had engaged on some prospective land/property purchase. Was there then a contract of employment between the claimant and the company?

Fact Of Dismissal

[6] The claimant prays that this court holds that his dismissal as being without any justifiable reasons and is in breach of the principles of natural justice, an unfair labour practice and/or unlawful. He pleads to be reinstated without any loss of wages, allowances, service, seniority, privileges or benefits of any kind and any other reliefs that the court deems fit. The claimant has made "his representation under s 20 of Act 177 and where such representations have been made and are referred to the Industrial court for inquiry, it is the duty of the court as stated by the Federal court in the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal, 1995 MarsdenLR 1088 to determine whether the termination or dismissal is with or without just cause or excuse. In Hotel Malaya Sdn Bhd & Anor v. National Union Of Hotel Bar & Restaurant Workers & Anor; 1982 MarsdenLR 13 ; , it was stated that in exercising this quasi judicial function, the courts functions comprise an investigation of the facts, an analysis of the facts, findings of facts and lastly the application of the law to those findings. Hence, the role of the court is to determine whet