AWARD

The parties in this case are Ooi Hock Huat (hereinafter referred to as "claimant") and Nova Charm Sdn Bhd (hereinafter referred to as "the company") on the 14 October 1998. The claimant contends that he was employed by the company as its van driver cum deliveryman on 1 February 1997 and was summarily dismissed without just cause or excuse on 4 October 1998. The company contends that the claimant was never employed as a workman or that there was a dismissal of a workman within the meaning of the Industrial Relations Act 1967. In the alternative, the company contends that if the claimant was a workman and had been dismissed, the said dismissal was with just cause or excuse. The burden of proof on the first issue and second issue lies with the claimant and the company respectively.

Section 2 of the Industrial Relations Act 1967 defines "workman" as "any person, including an apprentice employed by an employer under a contract of employment to work for hire or reward, and for the purpose of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute". The Act defines "contract of employment" as "any agreement whether oral or in writing and whether express or implied, whereby the person agrees to employ another as a workman and that other agrees to serve his employer as a workman."

In the exercise of its statutory functions of auditing the justness or otherwise of the decision to terminate the services of a workman the court should always be careful that it does not vest itself with jurisdiction to inquire into the termination of contractual arrangements for the performance of work or supply of services other than those which are contracts of service. Business entities and charitable or non-governmental organisations have the freedom to structure arrangements for the work or services requirements in the manner consistent with their organisations' need and according to their financial standing. In this regard, small enterprises or those which are making a tentative start up in their operations should not be forced ex post facto into employment relationships when the attendant facts and circumstances clearly show that in contracting for such work or services it was never intended that they were engaging workmen to be in th