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2024 MarsdenLR 3430
INDUSTRIAL COURT KUALA LUMPUR
KUMARAN R MUTHIAH – Appellant
Versus
PEMBINAAN MUTHIAH @ SONS (M) SDN BHD – Respondent
Award No: 1812 Of 2024 [Case No: 19/4-147/22]
The court determined that the Claimant, a director, was not an employee under the Industrial Relations Act 1967, thus lacking the status of a workman for unfair dismissal claims.
Headnote:(A) Industrial Relations Act 1967 - Section 2 - Definition of 'workman' - Claimant claimed unfair dismissal as Project Manager - Court found Claimant was a director, not an employee - Evidence showed no contract of employment existed - Claim dismissed. (Paras 51, 116)
(B) Employment Status - Determination of whether an individual is a workman requires examination of the nature of control and duties - Claimant failed to prove employment relationship - Court followed precedent from Inchcape Malaysia Holdings Bhd v. Rb Gray & Anor. (Paras 52, 80)
Facts of the case:
The Claimant was a director of the Company, claiming he was dismissed as Project Manager without just cause. The Company argued he was never employed as a Project Manager but was a director. The Claimant attended a General Meeting where he was removed as a director. (Paras 10, 12, 34)
Findings of Court:
The Claimant was not a workman as defined under the Act due to lack of employment contract and evidence of director status. (Paras 116, 117)
Issues: Whether the Claimant was a workman under the Industrial Relations Act 1967 and if he was unlawfully dismissed. (Paras 55, 75)
Ratio Decidendi: The court ruled that the Claimant's role as a director precluded him from being classified as a workman under the Act, emphasizing the need for a clear employment relationship supported by documentation. (Paras 56, 116)
Result: Claim dismissed.
AWARD
Reference
[1] This is a reference made under s 20(3) of the Industrial Relation Act 1967 ("the Act") arising out of the dismissal of KUMARAN A/L R. MUTHIAH (hereinafter referred to as "the Claimant") PEMBINAAN MUTHIAH @ SONS (M) SDN. BHD. (hereinafter referred to as "the Company") on 28 February 2021.
Preface
[2] The hearing of this case proceeded over two (2) days on 14 December 2023 and 1 April 2024, during which the Company produced a total of two (2) witnesses as follows:
i. Gunalan A/L Muthiah ("COW-1"); and
ii. Muthiah A/L Ramasamy ("COW-2");
[3] The Claimant produce one (1) witness as follows:
i. Kumaran A/L Muthiah ("CLWS-1")
[4] The documents which have been marked during the hearing are as follows:
i. Statement Of Claim dated 18 May 2021
ii. Statement In Reply dated 24.06/2021
iii. Rejoinder dated 12 July 2021
iv. Claimant's Bundle of Documents "CLB1"
v. Claimant's Additional Bundle of Documents "CLB2"
vi. EPF Form A for 07/2018 "CL3"
vii. EPF Form A for 07/2019 "CL4"
viii. EPF Form A for 05/2020 "CL5"
ix. EPF Form A 06/2020 "CL6"
x. Company's Bundle of Documents "COB1"
xi. Company's Additional Bundle of Documents "COB2"
Factual Matrix
Chronology Of Events-The Company's Case
[5] The Claimant was a Director of the Company alongside two (2) other directors,Mr Gunalan A/L Muthiah, the Claimant's brother, and Mr Muthiah A/L Ramasamy, the Claimant's father.
[6] The Company, a family-owned business, was founded by Mr Muthiah A/L Ramasamy in 2005 together with the Claimant, focusing on the business of civil and engineering works, specifically roadworks.
[7] Prior to establishing the Company, Mr Muthiah A/L Ramasamy started his business through Shanmuga Enterprise in the year 1975 and upon the incorporation of the Company, he channeled the clientele that he established in the roadworks industry from Shanmuga Enterprise to the Company.
[8] Thereafter, Mr Muthiah A/L Ramasamy expanded the clientele in the Company through advertising via the Company website, https://pmsroadworks.com/.
[As at Company's Bundle of Documents, CO-2, p 3-10]
[9] All three directors had roles to play in the Company. Since the Claimant and MrGunalan A/L Muthiah are the younger directors in the Company, they oversee and manage the projects in the Company.
[10] On or around February 2021, Mr Muthiah A/L Ramasamy proposed for the removal of the Claimant as a director in the Company due to the Claimant's unbecoming and unfitting behaviour which was not consonant as a director of the Company.
[11] A Notice for the General Meeting dated 10 February 2021 was then issued to the Claimant by the Company Secretary. Subsequently, a General Meeting was held on 1 March 2021 with the attendance of the Claimant, Mr Muthiah A/L Ramasamy and Mr Gunalan A/L Muthiah.
[12] A motion was proposed and passed to remove the Claimant as a director in the Company. Subsequently, the Claimant was removed as a director on the same day.
[13] The Claimant, unsatisfied with the decision of the Company to remove him from the Company as a director, file an action before this Honourable Court claiming that he was dismissed as a Project Manager of the Company without any warning, just cause or excuse by the Company.
The Issues To Be Determined
First Issue
The Claimant Was The Director Of The Company And Not An Employee
[14] The Company's counsel submits that submit that at all material times, the Claimant was the director of the Company as he was appointed as the director and never appointed and acted as an employee at the Company.
The Claimant At All Material Time Held The Position Of The Director And Subsequently Removed As The Director Of The Company
[15] The Claimant has never been appointed as an employee of the Company in the capacity of Project Manager. From the time of the Company's incorporation, the Claimant has consistently held the position of director.
[16] During the incorporation of the Company, there were three (3) directors including the Claimant where the designation of the Claiman
