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2022 MarsdenLR 438
INDUSTRIAL COURT JOHOR
WOON KIM CHOY – Appellant
Versus
ACEXIDE TECHNOLOGY SDN BHD – Respondent
Award No: 1755 Of 2022 [Case No: 18(16)/4-584/20]
A director cannot be classified as a workman under the Industrial Relations Act, 1967, due to their role in decision-making and lack of employment status.
Headnote:(A) Industrial Relations Act, 1967 – Section 2 and 20(1) – Claimant's dismissal by Company – Claimant contended he was an employee and was unfairly dismissed – Company argued Claimant was a director and not a workman – Court found Claimant was a director, not an employee, and dismissed the claim. (Paras 1, 76, 79)
(B) Employment Status – Court must determine if a claimant was a workman based on the nature of the relationship and degree of control exercised by the employer. (Paras 35, 66)
Facts of the case: Claimant was a founding director of the Company, removed at an EGM without formal termination – Alleged unfair dismissal due to lack of proper inquiry into claims against him and purported oppression as minority shareholder. (Paras 7, 76)
Findings of Court: The Claimant was not a workman per definition due to his role and responsibilities within the Company – There was no dismissal to examine. (Paras 78, 80)
Issues: Whether the Claimant was a workman under the Industrial Relations Act – Was the process of his removal from the directorial position valid? (Paras 24, 76)
Ratio Decidendi: A director cannot typically be considered a workman under the Act due to their decision-making authority and control within the Company. (Paras 72, 76)
Result: Claim dismissed.
AWARD
[1] This is a reference by the Honourable Minister of Human Resources pursuant to s 20(3) of the Industrial Relations Act, 1967 ("the Act") in respect of the dismissal of Woon Kim Choy ("the Claimant") by Acexide Technology Sdn Bhd ("the Company") on 7 November 2019.
Background Of The Case
[2] This instant case was heard together with another claimant's case, no: 18(16)/4-583/2020 between Chang Heng Keong v. Acexide Technology Sdn Bhd at the request of the parties, as the dismissal of both the Claimant and Chang Heng Keong (CHK) arose from identical facts and sequence of events. The Company's sole witness, Lim Boon Huat (COW1), who is the managing director of the Company gave his evidence in all aspects of the case in one single appearance as a witness as it has been agreed that COW1's evidence will be adopted in the other case as well. The Claimant adopts the evidence given by CHK in CHK's case and vice-versa. As both these cases had not been consolidated but only heard together, this Court will hand down separate Award for each case.
[3] The trial of the case proceeded via remote hearing on 9 February 2022 and completed on 28 February 2022.
[4] The following documents were filed:
i. Statement of Case dated 27 July 2020
ii. Statement In Reply dated 8 September 2020
iii. Rejoinder dated 23 September 2020
iv. Company's Bundle of Documents dated 17 September 2020
v. Company's Additional Bundle of Documents dated 11 November 2020
vi. Claimant's Bundle of Documents
[5] Witnesses for the Claimant are as follows:
i. CLW1a for Woon Wei Fan
ii. CLW2a for Woon Kim Choy
iii. CLW3a for Chang Heng Keong
[6] Company's witness was Lim Boon Huat COW1.
Brief Facts Of The Case
[7] The Company, a private limited entity is involved in the business of installation and maintenance of fire fighting systems, trenchless technology and transportation and was established on or about 15 October 1996. At the time of its establishment, the Claimant, Lim Boon Huat who is the Managing Director (COW1), and Chang Heng Keong (CHK) were the founding members of the Company, its directors and were the shareholders. Prior to the Claimant's removal as the director of the Company, as at 31 December 2018, the number of ordinary shares of RM1.00 each held by the Claimant, COW 1 and CHK are as follows: COW 1 held 100,000 shares, the Claimant held 90,000 shares and WKC held 25,000 shares. By 6 November 2019, the Company had an issued share capital of 250,000 ordinary shares wherein 25,000 of the shares were held by the Claimant, CHK held 90,000 shares, 100,000 shares were owned by COW 1 and COW1's son Jovi Lim Zhi Wei (Jovi Lim) held 35,000 shares.
[8] The Company maintained the register of employees for all its employees which included the names of all the three directors of the Company. By the inclusion of all the directors' names in the Register of Employees, the Company had contributed towards EPF, paid SOCSO contributions and PCB deductions. In the Register of Employees, the monthly earnings of the Claimant, CHK and COW 1 without doubt was listed as their monthly salaries a copy of which is exhibited at p 18 CLB 1.
[9] By a notice dated 14 October 2019, COW 1 had requisitioned for an Extra General Meeting, resolve to remove the Claimant and CHK as the directors of the Company with immediate effect and to appoint Jovi Lim as the new director of the Company.
[10] The EGM was convened at approximately 3.00 pm on 6 November 2019 wherein the Claimant attended the meeting earlier with his proxy, CLW 1 and shorty after it was convened, the Claimant walked out of the meeting. The Claimant and CHK were removed as Directors of the Company on that day. The details of the minutes of the EGM were exhibited in p 244 CLB1 but is suffice to say that in the EGM, the Claimant and CHK were removed as directors of the Company and the Company appointed Jovi Lim in their stead.
[11] At the time of his dismissal, the Claimant held the position of Director and in addition, held the position o
