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2023 MarsdenLR 18
INDUSTRIAL COURT IPOH
CHAI SIN FAH – Appellant
Versus
ATLANTIS ENGINEERING & CONSTRUCTION SDN BHD – Respondent
Award No: 1405 Of 2023 [Case No: 10/4-884/21]
The absence of a formal employment contract and the nature of a Director's role preclude classification as a workman under the Industrial Relations Act, rendering dismissal claims invalid.
Headnote:(A) Industrial Relations Act 1967 - Section 20(1) - Claimant's dismissal from employment - Claimant, a founding Director and alleged Project Director, claimed unlawful dismissal without just cause - Company contended Claimant was removed as Director, not dismissed as employee - No service contract established between Claimant and Company - Court found Claimant not to be a workman under the Act due to lack of employment contract - Claimant's allegations of misconduct not substantiated - Claim dismissed. (Paras 1-88)
Facts of the case:
Claimant was a founding Director of the Company and alleged he was unlawfully dismissed from his position as Project Director without just cause. He claimed reinstatement and back wages, while the Company argued he was removed as a Director under its constitution. (Paras 2-6)
Findings of Court:
The Claimant was found not to be an employee under the Industrial Relations Act as there was no contract of service. The Court determined that the Claimant's role was as a Director, not as a workman, and therefore his dismissal claim was not valid. (Paras 84-88)
Issues: The main issues were whether the Claimant was dismissed and whether such dismissal was with or without just cause. (Paras 49)
Ratio Decidendi: The Court ruled that the absence of a formal employment contract and the nature of the Claimant's role as a Director meant that he did not qualify as a workman under the Industrial Relations Act. Claims of misconduct by the Company were not proven. (Paras 86-87)
Result: Claim dismissed.
| Table of Content |
|---|
| 1. reference and factual background of dismissal case (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. company's arguments against claimant's employment status (Para 7 , 8 , 9 , 10 , 11 , 12) |
| 3. claimant's defense and counterarguments (Para 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23) |
| 4. court's jurisdiction and nature of the case (Para 30 , 31 , 32) |
| 5. legal definitions and implications of workman status (Para 39 , 40 , 41 , 42 , 43 , 44 , 45 , 48 , 49) |
| 6. court's evaluation of evidence and findings (Para 51 , 52 , 53 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67) |
| 7. consideration of minimum retirement age in reinstatement (Para 68 , 69 , 70) |
| 8. final conclusion on claimant's employment status and dismissal (Para 84 , 85 , 86) |
Reference
[1] This is a reference by the Honourable Minister of Human Resources Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 dated 17 March 2021 which was received by the Industrial Court on 12 April 2021 arising out of the alleged dismissal of Chai Sin Fah (hereinafter referred to as "the Claimant") by Atlantis Engineering & Construction Sdn Bhd (hereinafter referred to as "the Company") on 31 August 2020.
Factual Backgrounds
[2] The Claimant was a founding Director of the Company which was established on 28 December 1984 with the Company's core business in engineering and construction. Apart from being a Director and shareholder in the Company, the Claimant allegedly was appointed as a Project Manager in June 2002 with a last drawn salary of RM24,000.00 per month with RM1,000.00 as fixed allowances. The dispute herein is over the unlawful dismissal of the Claimant from the employment by the Company with effect from 31 August 2020 without just cause and excuse.
[3] There was no service of contract issued nor prepared by the Company to the Claimant for his appointment as a Project Manager of the Company. Although there was no contract of employment given specifying the Claimant's duties and job scope, the Company had contributed to the Claimant's EPF and SOCSO accordingly.
[4] The Claimant has failed a civil suit for derivative action against the Company pertaining to minority oppression, injunction to dilute his shareholdings and to prevent his removal as a Director in the Company. This ministerial reference in this Industrial Court is to challenge his alleged unlawful dismissal as an employee from his employment with the Company as a Project Director. Whereby, the Company had removed the Claimant from being a Director in the Company as the Company treated the Claimant as cannot be construed as being a regular employment with the Company.
[5] There was no domestic inquiry conducted by the Company except the Company summarily dismissed the Claimant from his employment as per a letter of termination services as Project Director dated 15 August 2020 (at p 19 of CLB-1), as the Claimant alleged that the Company had relied on five (5) reasons to the Claimant's dismissal which he denied as the following:
(i) That the Claimant allegedly had withdrawn RM310,630.00 from the Company as guise to pay salary to his wife, one Tan Ooi Kam without authorization from the Company;
(ii) That the Claimant had instructed his son and daughter-in-law to remove the Company's accounts and documents between November to December 2019;
(iii) That the Claimant had revealed the Company's accounts and other documents to unauthorised third party or any unauthorised persons;
(iv) That the Claimant had failed to or neglect of refused to carry out his duties as a Director; and
(v) That the Claimant's civil suit at the High Court had caused anguish and damages to the Company and other Directors and cannot be countenanced whereof the Company has no choice but to terminate his services after due consideration and the decision is not reversible.
[6] The Claimant upon his dismissal made a representative under s 20(1) of the Industrial Relations Act 1967, whereof he prays for reinstatement of his former positio
