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2021 MarsdenLR 3651
INDUSTRIAL COURT KUALA LUMPUR
MOHAMMAD ULFA USAMAH – Appellant
Versus
ALLEGIS GROUP MALAYSIA SDN BHD – Respondent
Award No: 784 Of 2021 [Case No: 14/4-2649/20]
Court lacks jurisdiction over claims when the claimant has not commenced employment, thus not qualifying as a 'workman' under the IRA.
Headnote:(A) Industrial Relations Act 1967 – Sections 2 and 20 – Contract of employment – Claimant offered a position, but employment not commenced due to company’s retraction amid pandemic – Court found it had no jurisdiction due to Claimant not being a 'workman' as per the Act – Case dismissed. (Paras 11, 14, 16)
(B) Jurisdiction – A party is bound by its pleadings – If reinstatement is not pleaded, the court lacks jurisdiction to adjudicate claims for compensation. (Paras 7, 9, 16)
Facts of the case: Claimant accepted job offer but did not start employment; the offer was rescinded before commencement due to economic downturn.
Findings of Court: Claimant not considered a 'workman' under the IRA, and therefore, jurisdiction to hear the case was lacking.
Issues: Whether the Claimant constituted a 'workman' under the IRA and whether the court had jurisdiction over the claim.
Ratio Decidendi: The Claimant, having not commenced employment, is not a 'workman', thus the Industrial Court had no jurisdiction over the claim for compensation.
Result: Claimant's claim dismissed.
AWARD
Factual Background
[1] By a Letter of Offer dated 16 March 2020, the Company offered the Claimant a position as Recruitment Relationship Manager with a salary of RM8,250.00 per month with commencement date on 20 April 2020. The Claimant accepted the Company's offer of employment on 19 March 2020.
[2] Before the Claimant's commenced his employment with the Company, Malaysia was affected by the COVID-19 pandemic and Movement Control Order was imposed by the government. The Claimant and the Company mutually agreed that the Claimant would commence his employment with the Company on 4 May 2020, rather then the original commencement date of 20 April 2020.
[3] However, on 24 April 2020 the Claimant received a call from Mr Jonathan Hunt - Head of HR APAC Allegis Global Group that the Company was not able to offer the positon to the Claimant due to the economy downturn caused by the COVID-19. The Company informed the Claimant of its decision to retract the offer of employment and formally issued a latter dated 27 April 2020 to rescind the Letter of Offer dated 16 March 2020.
[4] The Claimant had earlier resigned form his position in Korn Ferry by giving one month notices to enable him to resume the position as Recruitment Relationship Manger offered by the Company.
[5] Dissatisfied with the Company's decision, the Claimant filed a representative on dismissals under s 20 of the IRA . The representative was subsequently referred to the court pursuant to s 20(3) of the .
Preliminary Issues
[6] The Company raises preliminary issues before the court and submits that the court does not have jurisdiction to hear this matter on the following grounds:
(a) The Claimant failed to plead for reinstatement in his Statement of Case dated 12 April 2021; and
(b) The Claimant is not a 'workman' under s 2 of the IRA .
Evaluation And Findings
[7] It is trite law that a party is bound by its pleadings. The Industrial court must scrutinize the pleadings and identify the issues, take evidence, hear the parties' arguments and finally pronounce its judgment having strict regard to the issues (Federal court - R Rama Chandran v. The Industrial court of Malaysia & Anor, . Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd; [2010] 5 MLRA 696; [2011] 1 ILJ 479; [2010] 6 MLJ 1; [2010] 4 ILR 475; [2010] 8 CLJ 629; [2011] 3 AMR 38).
[8] In the Statement of Case, the Claimant is seeking for compensation from the court for loss of income.
[9] Since the Claimant failed to plead for reinstatement, the court shall cease to have jurisdiction to adjudicate on the matter ( Holiday Inn, Kuching v. Lee Chai Sok Elizabeth , , Chin Yoke Foon v. Seimens Malaysia Sdn Bhd; [2013] 4 ILR 312)
[10] In Selaco Aluminium Berhad v. Razali Mohamed & Ors; [1999] 1 ILR 375, it was held that since the Claimants did not plead for reinstatement but asked for compensation, the case was not within the purview of the Industrial court.
Whether The Claimant Is A 'Workman' Under The IRA
[11] The Claimant had not commenced his employment with the Company. The letter of recession was issued on 27 April 2020, which is before the commencement date of the Claimant's employment with the Company on 4 May 2020.
[12] In Borneo Pulp & Paper Sdn Bhd v. Raja Chellaiah; [2002] 3 ILR 1227, the Industrial court held:
"After full consideration, the court finds that although these exists a contract of employment between the parties, the claimant in this case cannot be considered to be a workman within the context of s 20(1) of the Industrial Relations Act 1967 . Had he commenced work on 1 March 1997 as per the letter of offer he would have been a workman. Since the contract was terminated on 19 February 1997 before he could commence employment, the company was at best only a prospective employer of the claimant.
in conclusion, the court is satisfied and finds that whilst a contract of employment had existed between the parties, the company had expressed an intention not to honour that contract. Since the term
