Back
2022 MarsdenLR 2951
INDUSTRIAL COURT KUALA LUMPUR
MOHAMAD FADI GHRAWI – Appellant
Versus
ASSA ABLOY OPENING SOLUTIONS MALAYSIA SDN BHD – Respondent
Award No: 1468 Of 2022 [Case No: 5(3)/4-765/20]
A person under a Contract for Services does not qualify as a 'workman' under the Industrial Relations Act 1967.
Headnote:(A) Industrial Relations Act 1967 – Sections 2 and 20 – Definition of 'workman' – The Claimant, not falling under the definition of 'workman' as per IRA, sought claim against the Company following termination of Contract for Services. The Court emphasized reliance on specific evidence to categorize nature of employment. (Paras 11-20)
(B)
The Court referenced established precedents to differentiate between 'Contract of Service' and 'Contract for Services'. The decisions noted include Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia & Anor and Tekun Concrete (M) Sdn Bhd v. ZulKafah Norazri. (Paras 13-18)
Facts of the case:
The Claimant was engaged as an independent Contractor through Ghrawi & Farra Group Sdn Bhd due to issues with a work permit and was dismissed for poor performance.
Findings of Court:
The Claimant was determined not to be a 'workman' under IRA, resulting in case dismissal.
Issues
: The determination of employee status under the IRA was central.
Ratio Decidendi:
The Court found no employment relationship existed, confirming Claimant's status as an independent Contractor.
Result:
Claim dismissed in limine.
AWARD
A. Reference
[1] This is a reference from The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 ("the IRA ") in respect of the dismissal of Mohamad Fadi Al Ghrawi ("the Claimant") by Assa Abloy Opening Solutions Malaysia Sdn Bhd ("the Company") on 25 October 2019.
B. Background Facts
[2] For ease of reference and understanding, this Court reproduces the Company Group Structure as supplied by the Company's Counsel - ASSA ABLOY AB Group of International Companies:
(a) ASSA ABLOY AB is a public listed company incorporated in Sweden that wholly own a group of multinational companies around the world including:
(i) ASSA ABLOY Asia Holding AB incorporated in Sweden("ASSA ABLOY Asia"); and
(ii) WHAIG Limited incorporated in Hong Kong("WHAIG Limited")
(b) ASSA Abloy Asia wholly owns the Company @ ASSA ABLOY Opening Solutions Malaysia Sdn Bhd, incorporated in Malaysia.
(c) The Company and WHAIG Limited are part of a division known as APAC Division.
[3] By Letter of Offer dated 11 October 2018 -Ms Meggy Chiu @ COW 1 offered to the Claimant the position of Dynamic AX Senior Business Consultant to serve the APAC Division in general.
[4] An Employment Contract was drafted and prepared - for the employing of the Claimant and to support the Claimant's Work Permit application in Malaysia.
[5] The employment of the Claimant by the Company did not materialize due to a work permit issue on the part of the Claimant. The Company did not proceed to finalise or execute the draft Employment Contract with the Claimant.
[6] Consequently, WHAIG Limited engaged the Claimant as an outsourced and/or external Consultant, being an independent Contractor under a Contract For Service to serve the APAC Decision in general.
[7] The Contract for Service was a Verbal Arrangement and/or Invoices between WHAIG Limited and Ghrawi & Farra Group Sdn Bhd, a Third Party company that provides information technology outsourcing and other IT related services, for the consideration of RM15,000.00 per month.
[8] On 15 November 2018, Ghrawi & Farra through the Claimant commenced providing his consultancy services to WHAIG Limited and/or APAC Division in general. Ghrawi & Farra's monthly invoices were issued to and paid by WHAIG Limited.
[9] On 25 October 2019, Mr Sridhar Srinivasan @ COW 2 and Ms Janise Szeto verbally informed the Claimant being the representative of Ghrawi & Farra, the Contract for Services for the Consultancy services was terminated with immediate effect due to the following reasons:
(a) The Claimant failed and/or refused to perform his duties and work as instructed by WHAIG Limited;
(b) The Claimant's performance of his duties and work was poor and unsatisfactory;
(c) Despite WHAIG Limited's offer to support and coach the Claimant in his duties and work, the Claimant refused, expressed his reluctance and failed to improve in his performance; and
(d) The Claimant as a representative of Ghrawi & Farra had breached the fundamental terms of the Contract for Services.
[10] Even though it was WHAIG Limited who terminated the Contract for Services with Ghrawi & Farra, the Claimant filed the representation against the Company at the Industrial Relations Department which was later referred to this Court for determination.
C. Evaluation And Findings Of The Court
[11] Based on the documentary and oral evidence adduced in ths Court, this Court found that since the Claimant was under a Contract for Services, he doesn't fall under the definition of "workman" under the Industrial Relations Act (' IRA ") 1967.
[12] This Court refers to s 20 and s 2 of the IRA 1967 for the meaning and definition of "workman" which doesn't fit the Claimant in this case.
[13] This Court stand guided and in agreement to the decided strings of authorities namely:
(a) The Federal Court decision in the case of Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia & Anor, which define and compare "Contract of Servic
