INDUSTRIAL COURT OF MALAYSIA CASE NO: 4/4-2575/18 BETWEEN DANIEL WAELCHLI AND JEKS ENGINEERING SDN. BHD.

AWARD NO: 2509 OF 2019 BEFORE : Y.A. TUAN AUGUSTINE ANTHONY CHAIRMAN VENUE : Industrial Court, Kuala Lumpur.

DATE OF REFERENCE : 01.08.2018.

DATE OF RECEIPT OF ORDER OF REFERENCE : 07.08.2018.

DATES OF MENTION : 07.09.2018, 26.09.2018, 16.10.2018, 13.11.2018, 11.02.2019, 04.03.2019, 18.03.2019, 28.03.2019, 17.06.2019.

DATESOF HEARING : 10.04.2019, 11.04.2019 & 19.04.2019. REPRESENTATION : Mr. T. Siva Subramaniam and Mr. Poh Kuang Horng of Messrs T. Siva & Co., Counsel for the Claimant.

Mr. Ten Yee Phor & Cik Norsuhaila binti Mat Nudin of Messrs Ten & Colin, Counsel for the Company.

THE REFERENCE:

This is an order of reference dated 01.08.2018 by the Honourable Minister of Human Resources pursuant to section 20(3) of the Industrial Relations Act 1967 arising out of the alleged dismissal of Daniel Waelchli (“Claimant”) by Jeks Engineering Sdn. Bhd. (“Company”) on

31.08.2018.

AWARD [1] The parties in this matter filed their respective written submissions on the 21.05.2019 (Claimant’s Submissions), 01.07.2019 (Company’s Submissions), 08.07.2019 (Company’s Written Submission in Reply) and

08.07.2019 (Claimant’s Written Submission in Reply).

[2] This Court considered all the notes of proceedings in this matter, documents and the cause papers in handing down this Award namely:-

(i) The Claimant’s Statement of Case dated 24.09.2018;

(ii) The Company’s Statement in Reply dated 01.11.2018;

(iii) The Claimant’s Rejoinder dated 13.11.2018;

(iv) The Claimant’s Bundle of Documents – CLB1, CLB2, CLB3(1), CLB3(2), CLB3(3), CLB3(4) & CLB3(5);

(v) The Company’s Bundle of Documents – COB1 & COB2;

(vi) Claimant’s Witness Statement – CLW1-WS; and (vii) Company’s Witness Statement – COW1-WS(1) & COW1-

WS(2) (Jari Silventoinen).

INTRODUCTION [3] Daniel Waelchli, the Claimant in this case commenced employment with Jeks Engineering Sdn. Bhd. (the Company) as Technical / Design Advisor for a contract term of 2 years commencing from the 01.07.2008 to 30.06.2010. At the date of employment in 2008 the Claimant was 59 years old. Thereafter the Claimant continued to serve the Company on a further contract period for another year commencing the 01.07.2010 to 30.07.2011 (1 year contract). The Company extended this contract of employment for a further period commencing from the 30.07.2011 to 30.06.2014 (3 year contract). By another contract of employment dated 30.10.2014, the Company offered employment to the Claimant for another 2 years with the contract period commencing from 01.09.2014 to 31.08.2016 and again this contract was further extended on a yearly basis for another 2 years ending

31.08.2018.

[4] On the 23.04.2018, the Company issued a letter to the Claimant informing him that his employment contract with the Company will expire on the 31.08.2018 and that the Claimant’s employment contract would be subjected to a review by the 29.06.2018.

[5] By a letter dated 29.06.2018, the Company informed the Claimant that his contract of employment will not be renewed upon its expiry on the 31.08.2018, which letter was in effect a letter notifying the Claimant that he is now given a 2 months’ notice as part of the handing over process of his duties of his employment with the Company and his last day of employment will be on the 31.08.2018. Upon receipt of the letter dated 29.06.2018 from the Company on the 10.07.2018, the Claimant on the next date of 11.07.2018 made a representation under Section 20 of the Industrial Relations Act 1967 (The Act) that he was dismissed from employment with the Company. However despite having made representation of his dismissal on the 11.07.2018, the Claimant continued to work for the Company and received salary for work done until the 31.08.2018.

[6] The Claimant now claims that his contract of employment with the Company was not a genuine fixed term contract and the Claimant had a legitimate expectation to have continued employment with the Compan