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2011 MarsdenLR 1687
INDUSTRIAL COURT KUALA LUMPUR
SZE THO KONG – Appellant
Versus
BEDFORD DAMANSARA HEIGHTS DEVELOPMENT SDN BHD & ORS – Respondent
Award No: 1119 Of 2011 [Case No: 3(19)/4-1566/07]
The determination of employment status under the Industrial Relations Act hinges on the nature of the contract, control, and the benefits received, with courts evaluating evidence of employment relationships.
Headnote:(A) Industrial Relations Act, 1967 - Section 20(1) - Dismissal of employee claim - Court must determine if the claimant was a 'workman' as defined under section 2 of the IRA, entitling him to seek redress for unfair dismissal - The claimant alleged unfair dismissal after more than 30 years with the respondents, who contended he was an independent contractor and not a workman under the IRA, so his dismissal was not subject to the provisions of the Act. (Paras 5, 26-30)
(B) Employment Status - Determining employment status involves examining control and contractual terms, as well as documentary evidence such as registered employees, benefits, and tax deductions - Cross-examination revealed that the claimant was aware of his independent contractor status and lacked employee benefits or statutory contributions, substantiated by the absence of his name in the employees’ register. (Paras 26-28)
Facts of the case:
The claimant was dismissed after 30 years and claimed to be an employee; the respondents argued he was a contractor with no employee rights, supported by contracts and absence of employee registration.
Findings of Court:
The court found no evidence to support the claimant's assertion of being an employee. The absence of registration and statutory contributions led to the conclusion that the claimant was not a 'workman' under the IRA.
Issues: Whether the claimant was a 'workman' under the IRA and entitled to seek remedy for dismissal.
Ratio Decidendi: The court emphasized the importance of contractual definitions in employment and the claimant's implicit acceptance of his status as a contractor, as shown by the absence of statutory employment benefits and records.
Result: The claim is dismissed.
| Table of Content |
|---|
| 1. judicial reference and joinder of parties. (Para 1 , 2 , 3) |
| 2. details of the claimant's employment history. (Para 4) |
| 3. respondents' preliminary objections regarding the claimant's status. (Para 5) |
| 4. legal definitions of 'workman' and 'contract of service'. (Para 6 , 7 , 8 , 9 , 10) |
| 5. testimonies of respondents regarding claimant's employment. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 6. human resource record verification. (Para 19 , 20 , 21 , 22) |
| 7. claimant's testimony and agreements. (Para 23 , 24 , 25) |
| 8. court's evaluation of evidence and findings. (Para 26 , 27) |
[1] This is a reference made under s 20(3) of the Industrial Relations Act, 1967 arising out of the dismissal of Sze Tho Kong (hereinafter referred to as "the Claimant") by Bedford Damansara Heights Developments Sdn Bhd (the original respondent) and (1) Guocoland (Malaysia) Berhad, (2) Hong Leong Property Management Co Sdn Bhd, and (3) Hong Leong Real Estate Management Sdn Bhd (the joined parties by order of court made on 15 August 2008) (hereinafter collectively referred to as "the Respondents") on 12 August 2005.
[2] This ministerial reference under s 20(3) of the Industrial Relations Act 1967 (the IRA) initially required the court to hear and determine the claimant's complaint of his dismissal by Bedford Damansara Heights Developments Sdn Bhd (the original respondent) on 12 August 2005. The reference was received on 23 July 2007.
[3] The claimant subsequently applied to join three other companies, namely, (1) Guocoland (Malaysia) Berhad, (2) Hong Leong Property Management Co Sdn Bhd, and (3) Hong Leong Real Estate Management Sdn Bhd (the joined parties). This application was opposed and after hearing argument the court on 15 August 2008 granted the joinder application vide Award No 1451 of 2008. The joined parties sought judicial review of the joinder order and, vide a consent High court Order made on 7 December 2009, the joined parties consented to remain joined but the said award was quashed insofar as it touched on the merits of the case. The respondent and the joined parties are hereinafter collectively referred to as "the respondents". The High court further ordered that the reference be heard by another chairman.
[4] The claimant's pleaded case as well as his presented case is as follows:
4.1. The claimant had very little formal education and had only attended Chin Woo Primary School in Jalan Pasar, Pudu. He had odd jobs for a few years. While he was working at the Regent Hotel (now, known as "Park Royal Hotel"), one Kenny Lee approached him and asked if he was interested to work for the Hong Leong Group. Kenny Lee then brought him to see the then General Manager of Hong Leong Property Management Co Sdn Bhd (hereinafter referred to as "Hong Leong Property Management"), Mr Roger Tan Kim Hock, now Dato' (hereinafter referred to as "Dato Roger Tan").
4.2. Dato' Roger Tan told the claimant that Hong Leong Group owned many buildings. Amongst them was a building called Wisma MPI, at Jalan Raja Chulan (now known as "Wisma MPL"). In this particular building, theft was rampant and members of triads were often found loitering in its vicinity due to the presence of a nightclub. Their in-house security guards were incapable of solving those problems Dato' Roger Tan asked if he could help resolve the theft related problems as a contractor. He told Dato' Roger Tan that he was unable to do so as he had no license to provide security services.
4.3. Dato' Roger Tan then invited the claimant to work under direct employment of Hong Leong Property Management Co Sdn Bhd as a "Special Service Officer". A letter of employment was prepared, the terms of which were explained to the claimant by Dato' Roger Tan's then secretary known to the claimant as "Kat". He accepted the employment by signing on the said letter of employment and an employment card was issued to him. His copy of the said letter of employment was kept by Kat at his (the Claimant's) request.
4.4. Within
