Back
2022 MarsdenLR 1817
INDUSTRIAL COURT KUALA LUMPUR
NOR ANIZA ZAINUDIN – Appellant
Versus
JAMBATAN KEDUA SDN BHD – Respondent
Award No: 2595 Of 2022 [Case No: 11(19)/4-1285/19]
Fixed-term contracts are subject to scrutiny to determine if they disguise ordinary employment, and dismissals must be justified to uphold employer rights while protecting employee job security.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Reference from the Minister of Human Resources regarding dismissal – The Claimant, employed on a fixed-term contract, was dismissed alleging rationalization of manpower. The court determined the distinction between genuine fixed-term contracts vs. ordinary employment, citing relevant case law. (Paras 1-10)
(B) Employment law principles – The court examined whether the dismissal was for just cause, considering the right to livelihood and statutory protections against unfair dismissal. (Paras 49-80)
Facts of the case: Claimant, employed as Senior Executive on a fixed-term contract, was dismissed on 1 April 2019 due to rationalization, which she contested, seeking reinstatement. (Paras 1-2)
Findings of Court: The court found no evidence of the Claimant being an ordinary employee, validating the fixed-term contract as genuine and ruling the dismissal reasonable. (Paras 47-80)
Issues: Whether the fixed-term contract was genuine or deceptive and whether dismissal was justified. (Paras 10-11)
Ratio Decidendi: The court established that fixed-term contracts must be scrutinized to prevent exploitation and confirmed the dismissal aligned with the principles of retrenchment and redundancy. (Paras 52-80)
Result: Dismissal of the Claimant's case; no reinstatement awarded.
A. Reference
[1] This is a reference from The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 in respect of the dismissal of Nor Aniza Binti Zainudin ("the Claimant") by her employer, Jambatan Kedua Sdn Bhd ("the Company") on 1 April 2019.
B. Background
[2] The case was initially tried by my fellow Chairman, Yang Arif Tuan Mohd Zulbahrin Bin Zainuddin. Subsequently, I have taken over the conduct of this matter as the new Chairman of this Court and continued with the trial of this matter until its conclusion. I rely on the authority of Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor,, where the Court held that s 23(6) of Industrial Relations Act 1967 (" IRA ") allows another Chairman to continue hearing a part-heard case and the new Chairman can hand down award in such cases.
[3] Therefore, this award is written based on my reading, perusal and evaluation of the facts and evidence contained in the notes of proceedings prepared by my fellow Chairman, Yang Arif Tuan Mohd Zulbahrin Bin Zainuddin and gleaned from the documents made available to me and the evidence adduced before me after I took over the conduct of this matter.
C. Facts
[4] Incorporated on 9 July 2008, the Company is wholly owned by the Minister of Finance Incorporated. It was appointed as the concessionaire to design, construct, manage, operate and maintain Jambatan Sultan Abdul Halim Mu'adzam Shah, also known as Jambatan Kedua Pulau Pinang ("the Second Penang Bridge").
[5] Pursuant to an offer of employment dated 20 December 2016, the Claimant commenced employment with the Company as Senior Executive-Finance on a fixed term contract basis for a period of two (2) years, commencing from 3 January 2017 to 2 January 2019 ("the Fixed Term Contract"). The relevant parts of the Fixed Term Contract are reproduced herein below as follows:
"Offer of Employment (On Contract Basis)
We are pleased to offer you a position in our Company as Deputy Manager under the following terms and conditions of service:
1. Grade: JE4 (Level 6)
2. Basic Salary: RM6,000.00 per month
....
4. Contract Period: From 3 January 2017 to 02 January 2019
12. Renewal of Contract
The Company reserves the right to renew the contract on similar or other terms subject to the mutual agreement of both parties."
[6] By a letter dated 21 December 2018, the Fixed Term Contract was extended by the Company for a further period of two (2) years, effective from 3 January 2019 to 2 January 2021 with all other terms of the Claimant's contract of employment remained unchanged ("the Extended Contract").
[7] The Claimant was also given annual salary increment effective from January 2019. This was informed to the Claimant via the Company's letter dated 14 February 2019.
[8] By a letter dated 6 March 2019 ("the Dismissal Letter"), the Company informed the Claimant that her employment with the Company would cease effective from 1 April 2019 due to rationalization of manpower. The relevant excerpts of the aforesaid letter are reproduced herein below as follows:
"Dear Aniza,
CEASE OF EMPLOYMENT CONTRACT
This is to advise you that your employment with Jambatan Kedua Sdn Bhd will be ceased effective from 1 April 2019 due to the rationalization of manpower.
Therefore, regret to inform that we have to cease the previous contract employment status with Jambatan Kedua Sdn Bhd by giving one month payment in lieu of the notice.
We would also like to take this opportunity to remind you that, notwithstanding the termination of your employment with the Company, certain of your obligations under your employment contract and other agreements that you may have signed during your employment with the Company continue. These obligations include, but may not be limited to, obligations of confidentiality and obligations relating to any intellectual property to which you may have contributed while employed by the Company.
You are requ
