The court ruled that the claimant's dismissal was unjustified, affirming that continuous contract renewals indicated permanent employment, not a genuine fixed-term contract.

AWARD

Syed Noh Said Nazir @ Syed Nadzir:

Reference

[1] This is a reference by the Director General of Industrial Relations Malaysia under s 20(3) of the Industrial Relations Act 1967 over a dispute of dismissal of RAJA KANNAN SENGODEN ("the Claimant") by GMA TECH CONSULTING SDN BHD ("the Company") to this Court for adjudication and handing down of an award.

Introduction Of Parties

Company

[2] The Company was incorporated in 28 April 2008 and is in the business of providing software consulting services by Information Technology (IT) experts to other companies that require the services of experts to manage IT-related managements services.

Claimant

[3] Pursuant to a letter dated 1 April 2016, the Claimant, a foreign workman of an India national, commenced employment on 25 April 2016 as a Senior Software Engineer. The Employment Pass sought and obtained by the company for the Claimant was issued with validity until 27 April 2017 after receiving a No Objection Certificate (NOC) from the Claimant's previous employer. The Claimant's service with the Company was terminated with a one (1) month notice communicated via email on 30 November 2020 from the Company's sole witness, David GAN: (COW-1) [COB-1 p 11]. The Claimant was subsequently informed that his last working date would be on 7 December 2020 (after the deduction of his Annual Leave) [CLB-1 p 30].

Salient Background Facts

[4] The Company pleaded at para 5 in the Statement in Reply (SIR) that, on or about November 2020, the Company has ceased all business dealing with AIA that resulted in the Claimant's position being identified as redundant.

Factual Background Summarised In Chronological Order

1 April 2016: The Claimant received and accepted the job offer from the Company as the Senior Software Engineer on a 1 year term, subject to extension by the Company. The salient terms of the contract included that the Company may terminate the Claimant's employment by serving a one (1) month written notice, but when the Claimant intended to resign, he was required to serve a two (2) months' notice period. The Claimant was transferable between projects and/or eams in Malaysia as the Company deemed necessary. The Company also reserved the right to transfer/depute the Claimant to any branch, subsidiary, associate company, or client's office, either in Malaysia or overseas. [COB-1 p 1-2]

25 April 2016: The Claimant commenced his job position in the Company and an Agreement was signed between the Claimant and COW-1, whereby the Dependent Pass for the Claimant's wife and child will be covered by the Company.

6 June 2016: The Company confirmed the Claimant's employment status and his position in the Company and received RM600.00 as salary increment effective from December 2016 onwards, and the Claimant's employment in the company was extended until 27 April 2018 [CLB-1 p 8]. The Company issued a letter dated 29 November 2017 [CLB-1 p 9]. The Claimant was offered based on his yearly work performance, salary increment of RM620.00, effective 1 December 2017.

April 2018: The Claimant's employment Visa was expiring in April 2018 and the Company sent an email to the Claimant to request the documents for renewal of his visa. The Company had changed the policy informing that the Company will bear only for one dependent visa, whereby previously, the Company had a policy to bear the cost for all the dependents' visa. [CLB-1 p 14]

17 April 2018: The Claimant issued a Letter of Appointment for a (2) two-year period, tentatively date commencing 30 April 2018 [CLB-1 p 16-20].

16 January 2020: The Claimant's contract was renewed until 31 December 2020 [CLB-1 p 26].

4 February 2020: The Company offered the extension for the Claimant's employment up to April 2022 via Letter of Appointment [CLB-1 p 21-25], but the Visa renewal was only done until April 2021.

30 November 2020: The Company, by an email, on 30 November 2020, terminated the Claimant's employment with 1 month notice and the Claimant was requested to clear his balance