Facts of the Case

Claimant joined the Respondent as a Card Sales Executive selling petrol fleet cards through a contract of service dated 2.7.2001 for a period of 2 years from 6.7.2001 to 5.7.2003 at a monthly salary of RM1,000.00 with monthly handphone allowance and transport allowance and was also eligible for commission in accordance with the Respondent's Fleet Card Commission Scheme. Vide letter dated 4.6.2003, the Respondent extended the Claimant's contract for another 2 years from 6.7.2003 to 5.7.2005 on the same terms and conditions of employment.

Sometime in December 2004, the Respondent took back the laptop computer provided for use by the Claimant and the Claimant contended by such act, it was difficult for him to perform his job function.

Claimant alleged that the Respondent's Card Marketing Executive then (COW3) had informed him that Claimant's contract of employment would end by 18.12.2004 when it was supposed to end on 5.7.2005. However, on 10.1.2005 Claimant was informed that his contract would only end on 5.7.2005 in accordance with the term of his contract. Hence when Claimant's contract of employment expired on 5.7.2005, it was not renewed. Claimant contended that there was no reason why his contract of service was not extended and why he was not absorbed into permanent position. He alleged that Tan Sri Wok Lodin, the representative from Boustead Bhd. which took over the Respondent had towards the end of 2004 given assurance that all employees of the Respondent would continue to work under the new management. In addition, the fleet cards sale was a continuous activity of the Respondent. He also contended that there was not much of difference in the terms and conditions of service between him and other permanent staff except on the facilities such as hospitalization, car and housing loans which permanent staff enjoyed and hence his contract was camouflaged as a fixed term contract. Claimant pleaded inter alia that the termination of his contract was a victimization on him and that it was not justified.

The Issues

The Respondent had raised the 1st issue that since the Claimant during cross-examination expressed that reinstatement in paragraph 15 (b) of his Statement of Case was not his claim, Claimant shall fail in his claim under section 20 of the Industrial Relations Act, 1967 (IRA 1967). The other 2 common issues are whether the Claimant's contract was a genuine fixed term contract and secondly, if the Claimant's contract was not a genuine fixed term contract but a permanent employment, whether the Claimant's termination was with or without just cause or excuse.

The Law

The case of Wiltshire Country Council v. National Association of Teachers in Further and Higher Education and Guy [1980] I.C.R 455 provides a distinction between contracts to perform a particular task or carry out a particular purpose (which are held not to be fixed - term contracts) and contracts for a particular period (which are). The case involved a part-time teacher at a college of further education. She entered into a new contract each year to teach specified subjects on specified occasions for each academic session, which ran from September to around the end of June. The classes were subject to there being sufficient enrolments and did not necessarily continue until the end of the session but could end earlier. She was paid for the hours she taught. She was not offered a new contract at the end of the 1976 - 77 sessions and complained of unfair dismissal. The English Court of Appeal held that, since her contract obliged her to work for the period of the academic session if so required, it was a fixed-term contract. Lord Denning M.R. draws a distinction between a contract for the duration of a voyage or a contract to cut down trees and said at p. 460:

"In neither of these instances is there a contract for a fixed term. It is a contract which is discharged by performance. There is no 'dismissal'. A contract for a particular purpose