Directors can qualify as 'workmen' under the Industrial Relations Act, allowing them to seek remedies for unlawful dismissal despite their corporate roles.

Lee Swee Seng JCA:

[1] The appellants, Woon Kim Choy ("Woon") and Chang Heng Keong ("Chang"), in the two appeals heard together, were the promoters of the company with Mr Lim BH ("Lim"). The company, Acexide Technology Sdn Bhd ("the Company"), the 1st respondent in this case, was incorporated and commenced business on 15 October 1996. Like most promoters, when the Company was incorporated, they each became shareholders as well as Directors of the Company. Lim, together with his son, Jovi, are currently the majority shareholders of the Company, holding 54% shares of the Company, whereas Woon has 10% and Chang has 36%.

[2] The Company is mainly involved in the field of installation and maintenance of fire lighting systems, trenchless technology and transportation. The business grew as the years went by and like all businesses, there were challenges to be confronted. However, Woon and Chang did not expect that Lim would one day, by sheer strength of his majority shareholding, convene an EGM to remove both of them as Directors of the Company.

[3] The EGM convened on 6 November 2019 to remove Woon and Chang as Directors of the Company was a foregone conclusion, as Lim and his son, Jovi, together, held a simple majority of the Company's shares. As a result, the resolutions to remove Woon and Chang as Directors of the Company were carried out. On the same day itself, the Company also appointed Jovi Lim as Director.

[4] The jurisprudence on the removal of Directors by the shareholders at an EGM requisitioned for that purpose is settled. A pertinent case illustrating this is Low Thiam Hoe & Anor v. Sri Serdang Sdn Bhd & Ors; [2020] 10 MLJ 137; [2020] 4 CLJ 618. In this case, the High Court dismissed the plaintiffs' challenge to the validity of Board meetings and Extraordinary General Meetings (EGMs) convened to remove them as Directors. The Court observed that shareholders possess an unfettered discretion to remove Directors, emphasising that as long as the removal process adheres to statutory requirements and the company's constitution, judicial intervention is unwarranted.

[5] After the appellants were unceremoniously removed as Directors, they commenced an action for minority oppression against Lim and his son. They also, within the time frame provided for in the Industrial Relations Act 1967 (" IRA "), filed a complaint under s 20 with the Director General of Industrial Relations for unlawful dismissal as a "workman" with the Company.

Before The Industrial Court

[6] When the Industrial Court first heard the dispute, the Company applied to strike out the claim of both Woon and Chang on the grounds that they were not a "workman" of the Company but rather, that they were Directors of the Company and hence, the Industrial Court has no jurisdiction to hear the dispute.

[7] The Industrial Court dismissed the said application and there was no appeal by the Company. The matter then proceeded for hearing in the Industrial Court with the Company calling Lim and an employee of the Company as witnesses. Woon and Chang gave evidence in the Industrial Court in support of their respective claims for unlawful dismissal.

[8] The Industrial Court found that Woon and Chang did not fall within the definition of a "workman" under s 2 of the IRA . Instead, as Directors, they were considered the 'directing mind and will' of the Company. The Court emphasised that individuals who are the 'directing mind and will' of a company, such as Directors, do not qualify as an employee or a "workman" of the company. The Industrial Court held as follows:

"[76] Having found that the Claimant had failed to prove that he had been a workman or was never a workman, the issue of whether the Claimant was dismissed with just cause or excuse is irrelevant because there was no issue of dismissal of a workman in the first place. It is this Court 's view that no further deliberation on whether he had been unfairly dismissed without just cause or excuse