An employment relationship requires a formal contract and employer control; the absence of these elements dismisses claims of alleged wrongful termination.

[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 arising out of the alleged dismissal of Encik Mahenthiraraja a/l Thangaiah (hereinafter referred to as "The Claimant") by AP Training Sdn Bhd (hereinafter referred to as "The Company") on 5 November 2007.

Introduction

[2] This is one of the case where parties refuse to talk to each other and to make the matter worse they choose to rely on a third party who were not part of the Company. Both the Claimant and the Managing Director (MD) of the Company are friend, sit in the same office but did not talk to each other for eight months. If only they could sit down and compromise, this matter should have been resolved amicably and friend would not became enemy.

Facts Of The Case

[3] The Claimant's case is that he was offered by the MD of the Company, Peter Terence D'Cruz (COW1) the post of Manager in the Company. The offer was accepted and the Claimant started employment as Manager in September 2002 with a monthly salary of RM3,000.00 per month.

[4] According to the Claimant on 5 November 2007 at 4.30 p.m. the Company accountant Mr. Selva told him that COW1 wanted the Claimant to stop work forthwith and no reason was given by the Company.

[5] The Claimant was not given a letter of warning before the termination. The Claimant claimed that when he was told to stop work he ask for the remaining salaries which amounted to RM15,243.00 and EPF RM15,870.00. The Company refused to pay him and also refused to give a letter of dismissal.

[6] The Claimant testified that, COW1 wanted to form a Limited Company which required two shareholders. COW1 asked him to became one of the Director and signed the Form. The Claimant contended at that time he is still remain the Manager of the Company AP Training Sdn Bhd (APT).

[7] It is the Company's contention that the Claimant was not an employee of the Company but a Director and shareholder. Therefore there is no issue of dismissal.

[8] According to COW1, it was the Claimant who came and asked him for a place in his Company's office for him to came and sit down every morning so that his family will not know of his failed business. At that point in time the Company (APT) was not in existence. COW1 obliged to the request because they were friends since 1990's. According to COW1 he has open his own Company Allied Physics Sdn Bhd in the year 2000. When the Claimant was around in the year 2002 they eventually decided to open AP Trading Sdn Bhd with the Claimant and he himself as the Director. The Claimant did not contribute any money for the setting up or for the paid up capital of APT. All expenses were paid by COW1. They agreed that they will work together and pay up for the Claimant's 5% share. The Claimant was given money in varying amounts as allowance in goodwill and friendship out of COW1's pocket. These fact is not disputed by the Claimant.

[9] COW1 testified that 7 to 8 months prior to the alleged dismissal, the Claimant has demanded that the MD transferred 25% of his shares to him. COW1 was taken aback as the original verbal agreement was for 5% only. COW1 asked the Claimant to justify his demands and from that day the Claimant stop talking to him.

[10] Regarding the EPF for Directors COW1 states that it was optional and the Claimant may have contributed on his own instructions. The Company did not have any outstanding payments due to EPF as claimed by the Claimant.

[11] COW1 states that, the Claimant as Director of the Company had willingly signed a Company document to include another Director soon after he was allegedly aske