IN THE INDUSTRIAL COURT OF MALAYSIA CASE NO.: 22/4-132/21 BETWEEN SUN KEE SIONG AND FLOOR DEPOT RETAIL SDN BHD AWARD NO. 1165 OF 2022 BEFORE : Y.A. TUAN PARAMALINGAM A/L J. DORAISAMY - Chairman (Sitting Alone)

VENUE : Industrial Court of Malaysia, Kuala Lumpur DATE OF REFERENCE : 06.01.2021 DATES OF MENTION : 23.02.2021; 29.03.2021; 19.04.2021; 04.10.2021 &

29.04.2022 DATES OF HEARING : 17.05.2022 REPRESENTATION : Claimant appears in person En. Mohd. Suhairin Bin Sulaiman Siew Messrs. Aimi Farhana & Partners Counsel for the Company REFERENCE :

This is a reference made under Section 20 (3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Sun Kee Siong (hereinafter referred to as “the Claimant”) by Floor Depot Retail Sdn Bhd (hereinafter referred to as “the Company”)

on 10 June 2020.

AWARD [1] The Ministerial reference in this case required the Court to hear and determine the Claimant’s complaint of dismissal by the Company on 10 June 2020.

I. Procedural History [2] The Industrial Court received the letter pertaining to the Ministerial reference under Section 20(3) of the Industrial Relations Act 1967 on 18 January 2021.

[3] The matter was fixed for mention on 23 February 2021, 29 March 2021, 19 April

2021, 4 October 2021 and 29 April 2022.

[4] The trial proceeded on 17 May 2022.

II. Factual Background [5] The Claimant commenced his employment with the Company on 10 June 2019 vide a Fixed Term Employment Contract (at pp. 3-9 of COB-1) as a Finance and Accounts Manager with a basic salary of RM7,500.00 per month.

[6] There was a dispute as to the period of the fixed term employment contract. The Company contends that it was for only 1 year whereas the Claimant’s stand is that the employment contract was for 3 years and that it ought to be renewed yearly, with a maximum of 2 extensions.

[7] The Company contends that barely few days before reaching the 1 year period of the employment contract, the Claimant had vide letter dated 27 May 2020 (at p. 12 of COB-1) informed the Company, inter alia, that he does not wish to continue working with the Company and therefore is serving the Company a 3 months’ notice. The Company had responded vide letter dated 28 May 2020 (at p. 13 of COB-1) informing the Claimant that he was not required to serve the notice period as the said Fixed Term Employment Contract will expire on 10 June 2020. The Claimant however contends that the Company’s letter of 28 May 2020 was in fact a termination letter.

[8] The Claimant further contends that he was terminated from his employment without notice on 10 June 2020 and that the termination was done by the Company without just cause or excuse. Thus, the Claimant prays for a reinstatement to his former position in the Company.

III. The Role Of The Industrial Court [9] In a case involving fixed term contracts, the Industrial Court has to determine:-

(i) whether or not the employment contract is a genuine fixed term contract;

(ii) if the employment contract is not a genuine fixed term contract, the Court would have to determine whether there was a dismissal or not and, if so, whether it was with just cause or excuse;

(iii) if, however, the employment contract is a genuine fixed term contract, then there would be no issue of dismissal to begin with.

[10] The principle pertaining to fixed term employment contracts was laid down in the case of M Vasagam Muthusamy v. Kesatuan Pekerja-Pekerja Resorts World, Pahang & Anor [2003] 5 CLJ 448 where Faiza Tamby Chik J held:-

“The applicant contended that the Industrial Court had not applied the correct test in making its decision by first asking itself whether there was a dismissal and secondly that if there was a dismissal, whether the dismissal was with just cause or excuse. I am of the opinion that the Industrial Court had correctly addressed the issue in this case by determining first whether or not the contract in question was a genuine fixed term contract (see pp. 3 and 4 of the said award). If the Industrial