INDUSTRIAL COURT OF MALAYSIA CASE NO. 19/4-327/13 BETWEEN TOKO INOMOTO DAN 6 ORANG PERAYU LAIN ….. THE CLAIMANT AND MALAYSIAN PHILHARMONIC ORCHESTRA ….. THE COMPANY AWARD NO. 1034 OF 2015 Before : Y.A. PUAN HAPIPAH BINTI MONEL CHAIRMAN (Sitting Alone)

Venue : Industrial Court Malaysia, Kuala Lumpur.

Date Of Reference : 31.01.2013 Dates of Mention : 15.04.2013, 06.06.2013, 28.06.2013, 02.08.2013, 17.07.2014, 06.08.2014.

Dates of Hearing : 20.01.2014, 21.01.2014, 22.01.2014, 23.01.2014, 18.04.2014, 25.04.2014.

Representation : Mr. Rajinder Singh Messrs. Rajinder & Goh Counsel for the Claimant Mr. Vijayan Venugopal and Ms. Parvathy Messrs. Shearn Delamore & Co Counsel for the Company REFERENCE This is a reference under section 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of TOKO INOMOTO DAN 6 ORANG PERAYU LAIN (hereinafter referred to as “the Claimants”) by MALAYSIAN PHILHARMONIC ORCHESTRA (hereinafter referred to as “the Company”) on the 15^th August 2012 AWARD Facts The parties to this case are Malaysian Philharmonic Orchestra (the Company) and Toko Inomoto and 6 other (the Claimants). The proceeding before this Court arises out of Honourable Minister of Human Resources reference under Section 20(3) of the Industrial Relations Act 1967 on the alleged dismissal of the Claimants from the services of the Company.

It is the Company's contention that it did not dismiss the Claimants and their employment with the Company naturally came to an end when their respective fixed-term contracts expired on 15^th August 2012 due to the effluxion of time.

The Issue The primary issue to be determined is whether the Claimants' employment with the Company are under genuine fixed-term contracts or under contracts for permanent employment but disguised as a fixed-term contract as so found in Han Chiang High School/Penang Han Chiang Associated Chinese School Association v. National Union of Teachers In Independent Schools, W.Malaysia & Industrial Court of Malaysia (1990) 1 ILR 473 (Han Chiang's case).

In the case of M. Vasagam Muthusamy v. Kesatuan Pekerja-Pekerja Resort World, Pahang & Anor (2005) 5 CLJ 93, the Court of Appeal held that:

“...the primary issue to be resolved in this appeal is, whether the contract of employment of the appellant with the first respondent is a genuine fixed-term contract or a contract which was of a permanent nature but dressed up as a fixed term contract as so found in Han Chiang High/School/Penang Han Chiang Associated Chinese School Association v. National Union of Teachers in Independent School, W. Malaysia & Industrial Court of Malaysia (1990) 1 ILR 473.”

If the Court comes to the conclusion that the fixed-term contracts are genuine, then the issue of dismissal would no longer arise. This is because their services with the Company would come to a natural end due to effluxion of time. In such situations, the Company just has to notify the Claimants of the fact that their employment relationship will be coming to an end in accordance with their respective fixed-term contracts. There is no need to explain the non-

renewal.

In the High Court case of M. Vasagam Muthusamy v. Kesatuan Pekerja-Pekerja Resorts World, Pahang & Anor (2003) 5 CLJ 448, upon scrutinizing the facts of the case, Faiza Thamby Chik J opined at page 458 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 Court made a finding that it was not a genuine fixed-term contract but was really a contract of employment, then only would the Industrial Court be required to ask whether there was a dismissal or not and that if so whether it was with just cause or excuse. In the instant case, since a finding was reached that the contract concerned was indeed a genuine fixed-term contrac, the question of there being a dismissal or not does not arise. Once it was established tha