A claimant must be a 'workman' under the Industrial Relations Act to seek relief; invalid directorship voids any associated employment contract.

Introduction

[1] The appellants claim at the Industrial Court is that he considered himself constructively dismissed by the respondent as at 18 January 2002 and that the respondent had breached the fundamental terms and conditions of his employment contract by not paying his claims and salaries from October 2000 until January 2002. The appellant applied for reinstatement under s 20 of the Industrial Relations Act 1967 (the IRA) of his position with the respondent as Executive Chairman cum Managing Director.

[2] The respondent on the other hand disputed the appellants claim and contended the appellant was never a "workman" in the first place as the alleged service agreement between the appellant and the respondent was null and void and thus unenforceable.

[3] The Industrial Court had on 26 July 2004 dismissed the appellants application on the ground that the appellant was not a "workman" under s 2 of the IRA. The appellant then applied for an order of certiorari under O 53 of the Rules of the High 1980 (the RHC) to quash the said Industrial Court order. The said application was also dismissed by the High Court on 12 June 2011. Dissatisfied with the decision of the learned High Court judge, the appellant filed an appeal to the Court of Appeal.

Factual Background

[4] The appellant was appointed as a director of the respondent on 3 June 1998 to fill a casual vacancy. Article 109 of the Articles of Association of the respondent provides that the appellant would hold office only until the date when the next Annual General Meeting (AGM) of the respondent would be held. After the 1997 AGM, it is not in dispute that no AGM was held within a year or even within 15 months from the 1997 AGM. The respondent applied for an extension of time to hold its AGM under s 143 of the Companies Act 1965 . It was granted until 31 December 1998. It was also not in dispute that no AGM was held until that date (31 December 1998), not even until 2001 when Special Administrators had been appointed by Pengurusan Danaharta Nasional Berhad to administer the respondent company. The AGM was finally held after the appointment of the Special Administrator.

[5] The appellant was first appointed as a director of the respondent on 3 June 1998, to fill a casual vacancy. Under a service agreement entered into by the appellant and the respondent on 31 March 2000 (the Service Agreement) the appellant was appointed as Executive Chairman cum Managing Director for a period of three years from 1 February 2000. The said Service Agreement was signed on behalf of the respondent by one Chong Kee Ling, who was also a director of the respondent at that time.

[6] Under the Service Agreement, the appellant was entitled to a gross salary of RM20,000 per month, a housing allowance of RM5,000 per month, a driver and a company car together with all expenses in connection with the said car and driver. In addition he was entitled to be reimbursed for general expenses and dental and specialist consultation for himself and his immediate family up to RM100,000 per year; one overseas leave passage and three domestic leave packages covering air fare, hotel accommodation, food and other related travelling expenses; the entrance