A company director can also be classified as a workman depending on the nature of their engagement, but the removal from the board does not constitute dismissal from employment without an employment contract.

AWARD

Zulhelmy Hasan:

Reference:

[1] This is a reference by the Honourable Minister of Human Resources Malaysia dated 29 October 2018 pursuant to s 20(3) of the Industrial Relations Act 1967 which was received by the Industrial Court of Malaysia on 1 November 2018 arising out of the alleged unfair dismissal of Tan Wee Ching (hereinafter referred to as "the Claimant") by Da Tong Shi Je Supplies & Services Sdn Bhd (hereinafter referred to as "the Company") on 29 June 2018.

Factual Background:

[2] The Company was incorporated on 26 August 2004 under the Companies Act 1965, and carries out a business of providing columbarium services. By 2012, the Company had only two (2) Directors namely Cheng Tong Choy and Fang Yi-Wen, a Taiwanese national. The Claimant and his father; Tan Tiew Bock became interested in investing in the Company and later part of 2012, both of them bought substantial amount of shares in the Company whereby in the same year, the Claimant was appointed as a Director with effect from 10 August 2012 to sit on the Board of the Company.

[3] Around 2011 when the Claimant was courting Cheng Tong Choy's daughter, he showed a keen interest in the Company, which at that time could do better with some additional funding and he offered to invest in the Company with his father's financial backing. In the process, the Claimant wanted to have an active role in the Company's affairs and business to take care of their investment and a new structure of the shareholdings in the Company was changed in August 2012 whereby the Claimant and his father holds 200,000 shares, and Cheng Tong Choy and Feng Yi-Wen, each of them holds 150,000 shares respectively.

[4] The Claimant's father one Tan Tiew Bock, and the Claimant himself insisted that the Claimant should sit on the board of the Company as Director as his father's nominated representative as a result some of management powers were in hands of the Claimant in order to fulfill the desire of the father and son as shareholders to hay a say in the management of the Company to protect their investment in the Company. Resolution of the board and the Company's secretary announcement confirming that the Claimant was appointed to the Company' Board of Directors with effect from 10 August 2012 (pp 24-25 of COB).

[5] The Claimant alleged that he had been employed as a working Director of the Company since 10 August 2012 when he was appointed as the Director (p 25 of COB) wherein he and another Managing Director and also his father in law; Cheng Tong Choy were managing day to day matters and operations of the Company and were paid salaries and statutory deductions including EPF, SOSCO and income tax deduction (PCB) whereby other Directors who were not doing day to day work were paid allowances or consultant fee. Apart reporting to the Board of Directors, the Claimant had been given management tasks by the Board of Directors including marketing, giving commissions to agent, payments to suppliers, implementing policies, make and review accounts and many more. He was given salary since 1 May 2013 and EPF was also being contributed by the Company on his behalf as shown in the Income Statement (pp 27-28 of CLB) and also his EA Forms (pp 29-32 of CLB).

[6] The board of the Company in years leading up 13 June 2017 were just Cheng Tong Choy, Feng Yi-Wen (the Taiwanese shareholder) and the Claimant. Since Feng Yi-Wen who lives in Taiwan was not an active member of the board of the Company for its every day affairs, only the Claimant and Cheng Tong Choy who were remained to make management decisions in day to day affairs of the Company.

[7] By way of a notice dated 31 May 2018 (p 69 of COB) for a shareholders meeting was fixed on 29 June 2018 and subsequently, Feng Y-Wen indicating her approval in proxy form (p 70 of COB) indicating her approval for the resolution to remove the Claimant from the board of the Company. Evidence in the minutes of the Members' Meeting held on 29 June 2018 (p 71 of COB) whereby the r