The determination of employment status under the Industrial Relations Act hinges on the existence of a contract of service, which the Claimant failed to establish.

AWARD

Zulhemy Hassan:

Reference

[1] This is a reference by the Director General of Industrial Relations of Malaysia dated 19 December 2022 pursuant to s 20(3) of the Industrial Relations Act 1967 which was received by the Industrial Court of Malaysia on 23 December 2022 arising out of the alleged unlawful dismissal of MOHD MOOSA BIN MOHD ARIF (hereinafter referred to as the "Claimant") by ELIZON CONSTRUCTION SDN BHD (hereinafter referred to as the "Company") on 27 April 2022.

Factual Backgrounds

[2] The dispute before this Court is the purported unlawful dismissal of the Claimant by the Company on 27 April 2022. On 28 February 2018, the Company as a sub-contractor secured a project for upgrading Kuala Kangsar - Manong road through Syarikat Pembinaan Caj Maju Sdn Bhd as the main contractor. It is a term of the contract that the main contractor through the Company must provide a Safety and Health Officer (hereinafter to be referred as "SHO") for the said project. The Company then received information that Syarikat Work Safe Training & Consult is a Company that provides administrative, training and SHO consultancy services.

[3] The Claimant, as a partner in Syarikat Work Safe Training & Consult (pp 1-4 of COB-1) was appointed verbally by the Company as a Safety & Health Officer (SHO) effective from 24 April 2018 specially for the project "Menaiktaraf Jalan Kuala Kangsar - Manong (A03) Fasa 2, Kuala Kangsar, Perak". In this project, the Claimant was placed and registered with Department of Occupational Safety & Health, Perak for Syarikat Pembinaan Caj Maju Sdn Bhd as the main contractor using the Claimant's license whereas his salary was paid by Elizon Construction Sdn Bhd (the Company) as the sub-contractor of the project.

[4] The Claimant's salary was credited to him directly into his personal Hong Leong Bank account as requested by him since he had stated that his company did not have a bank account yet. The Company credited the Claimant's salary into his personal bank account on every 7th day of every month. The Claimant was paid RM5,000.00 for eight (8) days' work per month. Thereafter when he was asked to work full-time at the worksite, he was paid RM7,500.00 per month as consultancy fees. The Claimant's last drawn salary was RM7,500.00 per month before the alleged unlawful dismissal by the Company. The final payment of the Claimant's consultancy fee of RM7,500.00 was paid by the Company in October 2021.

[5] The Claimant's attendance as the SHO at the worksite was monitored by the Company through the utilization of attendance card referred colloquially as "kongkad" (pp 50-62 of COB-2) although the Company gave him some leeway by not closely monitoring his daily attendance. The Claimant alleged that he was appointed by the Company for full time SHO registered for the Kuala Kangsar project under his SHO license as an employee of the Company at the material time.

[6] The Company did not issue any contract of employment despite having been asked by the Claimant on several occasions, but no action taken by the Company upon his repeated request. The reason being that the Claimant was not an employee of the Company but only appointed him as a consultant of SHO specifically for the period of the said Kuala Kangsar project only.

[7] During the period of the Movement Control Order (MCO), all employees and staff contracted to a specific project will be issued Letters of Approval to travel to their respective work site and they are also subjected to employee health screening during MCO as required by the Ministry of Health during the pandemic Covid-19 throughout the nation.

[8] Sometimes in September 2021, there was a site coordination meeting to discuss preparation for the new project to be taken by the Company (Elizon Construction Sdn Bhd) at Kota Bharu, Kelantan for "Project Persimpangan Hor" regarding assignment of staff and other administrative matters for the new project. The Claimant alleged that the Project Director one Danion a/l Lewis