Hj. Mohd. Eusoffe Chin J:

The two issues before the Industrial Court for determination are:

(1) whether the 35 teachers (claimants) were dismissed or not by the Han Chiang High School.

(2) If they had been so dismissed whether the dismissals were with just cause and excuse.

For the school, it was argued that the teachers were given 2 years fixed term contracts, and for the purpose of this application, the contracts were from 1 January 1985 to 31 December 1986 and that by effluxion of time the contracts expired on 31 December 1986. The school also said that before the expiry of the contracts, it had given notice to each teacher that his service agreement with each teacher would expire on 31 December 1986. The school then on 10 December 1986 published a notification in Kwong Wah Jit Poh that it was recruiting teachers for 1987 and invited those interested, to apply. It claimed that the 35 teachers did not apply and therefore they were not taken in. The school claimed that these 35 teachers were not taken back by the school not because they were union members, since the school in fact took back 12 teachers who were union members.

For the 35 teachers, it was argued that the school had from its establishment in 1951 been employing teachers on fixed term basis. Some of the teachers have taught at the school for more than 20 years and have had their contracts renewed unfailingly during those years without the need to reapply whenever their fixed term contracts expired. The teachers therefore claimed that they had the right to automatic renewals of their contracts upon their expiry because all along that had been the practice of the school in the past. They claimed that other teachers who were not members of the Union of Teachers in Independent School, West Malaysia had been taken in. But because the 35 teachers were union members, their contracts were not renewed. 12 other union members who had renounced their union memberships had been taken back by the school. The 35 teachers therefore claimed that they had been dismissed without just cause and excuse by the school.

recruitments of teachers depended to a large extent on the number of student intake, and the subjects to be taught. It would be foolish, in fact, a burden on the school, to maintain a large number of permanent teachers proficient in a subject matter when the number of students requiring teaching in that subject matter is very small.

The records shows that in the past the school was carrying on with a steady number of students each year and the teachers on the 2 year contracts were given automatic renewals of their contracts. In other words, although under the law, i.e. section 11 Employment Act , the 2 year contracts expire automatically, there had been no requirement from the school that teachers willing to continue teaching there, must reapply to have their contracts renewed for another 2 year period.

The school maintained, and the record showed that it suffered losses or deficit in 1986, mainly due to the lesser number of students and the economic recession. The Industrial Court rejected this argument by the school because it found that the school had fixed deposits and cash assets in the bank of about 1 million ringgit. By 1986 about half the number of the teachers had joined the Union. The board of directors did not want