The dismissal of an employee for minor misconduct requires substantial justification; proportionality is essential in employment terminations under employment law.

[1] This reference stems from he dismissal of Encik Warren Zawawi Hussein ("the claimant") by Wagner Global Services (M) Sdn Bhd ("the company") on 4 September 2007.

Factual Matrix

[2] The claimant was appointed effective 1 May 2007 for a period of one year by the company. He was dismissed from service on 4 September 2007. It is not the pleaded case of the claimant hat his contract of employment was in fact a contract of a permanent nature dressed up as a fixed term contract. The company contends that the claimant's said contract would have expired on 30 April 2008.

[3] The claimant's counsel orally applied and was allowed by the court to amend para 1 of the statement of case to include after the words "commercial manager" the words "chief financial officer" despite the objections raised by the company's counsel. The court's decision was based on s 29(g) of the Industrial Relations Act 1967 where the court is empowered generally to direct and to do all such things as are necessary or expedient for the expeditious determination of the matter before it and s 30(5) of the said Act 1967 which states that it is the duty of the court o act according to equity, good conscience and substantial merits of the case without regard to technicalities and legal form.

[4] The claimant contends that in the interest of the company he had formulated a proposal and had sent it by way of email to the chairman of the company as well as the Group Chief Financial Officer and other key personnel of the company. The claimant avers that when questioned by the chairman as to whether he had sent the said proposal to anyone else he denied having done so. The claimant states that he was then accused of having lied by the said chairman and was subsequently dismissed by the company for gross misconduct.

[5] The company pleads that the claimant was not in the first place a workman but functioned as an independent contractor for the company. The company avers that the claimant was its Commercial Manager and was entrusted with developing, implementing all financial and treasury systems, processes and controls and managing accounts for all the companies within the global group. The company further contends that the claimant was issued with a letter of appointment as its Chief Financial Officer for the purposes only of processing his work permit and was never intended to create any binding contract between the parties. The company avers that the claimant knew that his actual appointment was that of an independent contractor designated as Commercial Manager for the company and his purported appointment as Chief Financial Officer was an administrative expediency. It is their pleaded case that the claimant was not on the payroll and had been submitting monthly invoice for his services he rendered to the company as Chief Financial Officer.

[6] It is also the pleaded case in the alternative of the company that the claimant was dismissed for just cause or excuse. The company avers that vide his said email the claimant had made serious allegations against company officers in particular the General Manager, John Watts. The company viewed the claimant's lie that he had not copied the said email to other officers of the company as deceitful and mala fide. Having aken a very serious view of the lying by its senior and trusted officer the company dismissed the claimant. It avers that the claimant was given three opportunities to speak the truth but failed to do so. The company contends that he claimant had a fiduciary duty to uphold integrity but lied.

Issues Before The court

Independent Contractor Or Employee

[7] The first issue that the court is required to resolve is to the status of the claimant as a workman. The company contends that the claimant was a mere independent contractor. It led evidence through its witness, CW1 the chairman of the group who stated that the claimant had accepted his terms of employment contained in the letter of employment dated 13