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2012 MarsdenLR 212
INDUSTRIAL COURT, KUALA LUMPUR
MOHD FIRDAUS ABDULLAH – Appellant
Versus
HUP AIK WOOD PRODUCTS SDN BHD – Respondent
Award No: 1220 of 2012 [Case No: 26/4-217/2008]
The determination of employment status as a 'workman' under the Industrial Relations Act hinges on the examination of control and work arrangement details, affirming that the absence of an employment contract negates entitlement to protection.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Definition of 'workman' and 'contract of employment' - Dispute regarding the employment status as employee or sub-contractor - The claimant was purportedly dismissed without cause - The court determined that the claimant was a sub-contractor and not a workman, citing evidence of invoices and payment structures, leading to the conclusion that no employment contract existed. (Paras 1, 3, 20, 21)
(B) Employment Status - Determining whether an individual is a workman requires a case-by-case analysis of the degree of control exerted by the alleged employer and other functional aspects of the relationship, emphasizing that lack of a written contract necessitates thorough evaluation of roles and remuneration practices. (Paras 5, 10, 18)
Facts of the case:
The claimant alleged wrongful dismissal by the company, having worked since 1986 without a formal employment contract, while the company claimed he was a sub-contractor. Evidence included disputed invoices and cash payments with no formal employment records. (Paras 2, 11, 12)
Findings of Court:
The court found that the claimant was a sub-contractor, having no evidence of an employment contract, and that the method of payment indicated a contractor's arrangement rather than an employee-employer relationship. Thus, the claimant did not qualify as a workman under the Act. (Paras 20, 22)
Issues: The primary issue was whether the claimant could be classified as a workman entitled to protection under the Act, given the nature of his work arrangement with the company. (Paras 3, 10)
Ratio Decidendi: The court held that determining workman status involves assessing various factors including control, nature of work, and evidence of remuneration arrangements, ultimately finding the absence of an employment contract led to the dismissal of the claimant's claim. (Paras 20, 21)
Result: Claimant's claim is dismissed.
| Table of Content |
|---|
| 1. definition of 'workman' under act (Para 4) |
| 2. flexibility in the definition of 'workman' (Para 5 , 6 , 8 , 10) |
| 3. contentions of the parties (Para 11) |
[4] Section 2 of the Act has defined "workman" and "contract of employment" as follows:
"Workman" means any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purpose of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute; and
"contract of employment" means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as a "workman" and that other agrees to serve his employer as a "workman".
[5] In Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia & Anor, [1996] 4 CLJ 687 , Federal Court decided that the guiding principle and the test to be applied in determining whether a claimant is or is not a workman within the definition of "workman" under s 2 of the Act. His Lordship Gopal Sri Ram JCA in delivering the judgment of the Federal Court held, inter alia, as follows:
"Held: [2] The Act ( Industrial Relations Act 1967 ) is a piece of beneficent social legislation by which Parliament intends the prevention and speedy resolution of disputes between employers and their workmen. In accordance with well-settled canons of construction such legislation must receive a liberal interpretation.
The definition of the term "workman" is flexible, and is to be worked out on a case by case basis.
[3] The definition of "workman" applies to all contracts of service but not to independent contractors who are engaged under contract for services.
In all cases where it becomes necessary to determine whether a contract is one of the service or for services, the degree of control which an employer exercises over a claimant is an important factor but may not be the sole criterion.
It is a question of fact.
The capacity in which one is employed or the purpose of the employment does not answer the question of the definition of a "workman". It is the function of and the duty actually discharged by the particular claimant that is important and not merely the label that is attached to the particular employment or indeed the purpose of the engagement".
[6] From the above case, it is clear that the degree of control an employer exercises over a claimant which is an important factor but it is not the only criteria for the Court to decide whether the claimant is or is not a "workman".
[7] In Stevenson, Jordan & Harrison Ltd v. Macdonald [1952] 1 TLR 101 @ 111, Lord Denning LJ had propounded the following principle and test:
"It is often easy to recognise a contract service when you see it, but difficult to say wherein the distinction lies. A ship's master, a chauffeur and a reporter or a staff of a newspaper are all employed under a contract of service; but a ship's pilot, a taxi man and a newspaper contributor are employed under a contract of services. One feature which seems to run through the instances is that under a contract of services, a man is employed as part of the business, and his work is done as an integral part of the business, whereas under a contract for services, his works although done for the business, is not integrated into it but is only accessory to it".
[8] This test enunciated by Lord Denning LJ was termed as 'organisation test' and was applied by Salleh Abas FJ (as His Lordship then was) in Mat Jusoh Daud v. Sykt Jaya Seberang Tahir Sdn Bhd ; , .
[9] In Montreal v. Montreal Locomotive Works Ltd [1947] 1 DLR 161, Lord Wright had suggested the test known as the 'composite test' which involved the elements of (1) control, (2) ownership of tools, (3) chance of profits and (4) risk of loss: see Mat Jusoh Daud (supra).
[10] In light of the above definition and quoted
