The employer-employee relationship can exist through conduct despite a lack of a written agreement, as evidenced by actions taken by the parties.

[1] The parties to the dispute are Syed Othman bin Abu Bakar, Mohd Yunus bin Solong, Ahmad Fuad bin Abd Wahab, Syed Hassan bin Syed Azmi, Mohd Rokis bin Mohd Ghulan and Munir bin Abu Bakar ("the Claimants") and Cekal Teguh Sdn Bhd/Kazakhstan Methanol Limited ("the Respondents"), in Case Nos: 4/4-1752/16, 4/4-1753/16, 4/4-1754/16, 4/4-1759/16, 4/4-1760/16 and 4/4-1761-16.

[2] This dispute which has been referred to the court by way of a Ministerial Reference under s 20(3) of the Industrial Relations Act 1967, is over the constructive dismissal of the Claimants on 30 March 2016.

[3] The six Claimants in the order of their testimonies are:

1. Ahmad Fuad Bin Abd Wahab (CLW-1)

2. Mohd Rokis Bin Mohd Ghulan (CLW-2)

3. Syed Hassan Bin Syed Azmi (CLW-3)

4. Syed Othman Bin Abu Bakar (CLW-4)

5. Munir Bin Abu Bakar (CLW-5)

6. Mohd Yunus Bin Solong (CLW-6)

[4] The sole witness who had testified for the 1st Respondent is:

Zulkefli bin Zaidi (COW1).

Background

[5] Cekal Teguh Sdn Bhd (The 1st Respondent) is a company incorporated and operating in Malaysia. Its nature of business is investment dealing, investment holding and providing management services to its group of companies. The total issued shares of the 1st Respondent is 100,000. Of these, 99,999 shares are held by one Tan Sri Halim Bin Saad ("TSH") and the remaining 1 share is held by one Meor Othman Bin Meor Lope.

[6] TSH had planned to construct a Methanol Plant in the Republic of Kazakhstan ("the Project"). For that, he incorporated Kazakhstan Methanol Limited (The 2nd Respondent) in Hong Kong on 17 April 2014. TSH held 25% of the ordinary shares of the 2nd Respondent. The rest of the shares in the 2nd Respondent was held by Markmore Energy (Hong Kong) Limited, which is also controlled by TSH. TSH was thus the founder, shareholder, director and Chairman of the 2nd Respondent.

[7] Whereas the 6 Claimants are engineers/Oil & Gas professionals with significant experience in petrochemical industry. One of the Claimants, Datuk Syed Othman Bin Abu Bakar ("CLW-4"), had been key personnel in construction of Petronas owned Methanol Plant in Labuan. As a result, TSH wanted to appoint CLW-4 as Project Director of his Kazakhstan Project. CLW-4 had invited the 5 Claimants to join as team members of the Project.

[8] Following negotiations on the terms of employment of the Project team with CLW-4, one James Chan from Sumatec Resources Berhad ("Sumatec") a company associated with TSH, had drawn up a one-page document dated 11 March 2014 ("CLB-3"). CLB-3 had been signed by TSH on 11 March 2014. It confirms the engagement of the Claimants in the Project and states inter-alia the position of each Claimant, their date(s) of commencement, duration, location, salary, working days, annual leave, medical insurance, travel claims and on-site benefits. More importantly, CLB-3 stated that CLW-4 and Syed Hassan Bin Syed Azmi (CLW-3) would commence their employment on 18 March 2014 whereas the other 4 Claimants would tender their resignation from their erstwhile employer based upon CLB-3.

[9] The 2nd Respondent was incorporated in Hong Kong on 17 April 2014 which is around the time that Markmore Energy (Hong Kong) Limited was also set up in Hong Kong. The fees for incorporation and the related expenses for setting-up these companies were paid for by the 1st Respondent. The 2nd Respondent's Head Office was located at #43-5 (fifth floor), The Boulevard, Mid Valley City, Lingkaran Syed Putra, 59200 Kuala Lumpur. The said building at No 43, The Boulevard, Mid Valley City is also where the 1st Respondent and a number of other group companies of TSH are located. Upon its incorporation, the 2nd Respondent had issued employment agreements ("Employment Agreement") to the Claimants, the key terms of which are as follows:

1. Datuk Syed Othman Bin Abu Bakar ("CLW-4") - was appointed as Project Director reporting to the Chairman (TSH)