Permanent Employment Or Fixed Term Contract？

此案例是一名电台DJ，她投诉被电台无故解雇。

1. 员工因在Media Prima Berhad(MPB)的电视节目中得到第一名，因此被Synchrosound Studio (MPB的子公司/公司)雇用，当任Hot FM的广播员。之后公司于2014年4月1日向员工提供了一份为期一年的雇用合同。随后，该合同被延长至2016年3月31日。
2. 而在2016年3月31日的合同到期前，公司于同年的3月8日再提供了另一份日期为2016年4月1日至2019年3月31日的雇用合同。员工当时被指派为Kool FM（由Synchrosound拥有）的广播员。
3. 2017年时公司的节目组负责人告诉员工，她必须成立一家公司才能继续担任广播员。员工只好成立了名为LKD Empire 的公司。随后Kool FM与员工的公司签署了一份日期为2017年12月1日至2019年3月31日雇用合同。
4. 公司在2018年8月1日时，以合同的第7.3条款，给予员工七天的通知终止了服务。同时在此条款下公司可无需给予任何理由就终止双方的服务。员工在劳资关系局投诉本身被公司无理解雇。
5. 公司在法庭上辩称，LKD Empire本身是一名承包公司，而员工是通过LKD Empire提供服务的独立员工，而并非公司的正式员工。她主要的工作是在下午3时至7时之间担任节目主持人。因此公司的解说是，他们终止的是与LKD Empire之间的服务，并非雇主与雇员之间的关系。。
6. 员工则表示她自2014年起便持续的为公司服务，她的服务也从未被中断。她表示本身并非公司所说的的独立员工，而是正式员工。
7. 全职员工的合约是 CONTRACT OF SERVICE ，而独立员工的合同为CONTRACT FOR SERVICES。法庭表示如何分辨两者的区别，其中一个关键标准在于公司对有关员工的控制程度。公司对员工在工作上的控制程度越高，法庭定义有关员工为全职员工的可能性就越大。对此法庭依据的是员工与公司之间的真实关系，而并非只是依靠合同来决定员工是否公司的正式员工。
8. 法庭发现尽管公司声称员工主要的工作是在下午3时至7时之间担任节目主持人，然而员工实际的工作时间为每天8到10个小时，同时薪水是固定每个月7000令吉。此外公司对她有完全的控制权，比如她必须按照公司所提供的格式和政策来提供服务。这显示员工实际上是公司正式的员工。
9. 而且公司也无法解释为何会在2017年时突然要求员工更换合约，签署一份新的Contract for Service 的合同。因为员工之后所提供的服务和工作性质，与新合约前的服务是一样的。法庭认为公司将员工合同转换为Contract for Service的服务合同，是一种欺骗的手段，其目的是为了剥夺员工的雇员身份和福利。
10. 而且员工的服务自2014年以来从未被间断，因此员工的合约也并非固定期限合同，而是一份正式的雇用合同，因为固定期限合同是暂时性的。
11. 法庭最终裁决员工被公司无理解雇，这是因为即使双方所签署的合同第7.3条款提到公司可以无需给予任何理由，只需给员工七天的通知就终止双方的服务；然而由于员工是公司的正式雇员，因此雇主有责任证明员工的解雇是基于正当的理由based on just cause and excuse，；而上述公司无法证明辞退员工时是基于正当的理由。
12. 对此公司需赔偿员工：

• 追薪(back wages) :RM7,000.00 x 15个月= RM105,000.00, 以及
• 代替复职的赔偿(Compensation in lieu of Reinstatement) ：RM7,000.00 x 4个月= RM28,000.00。
• 总额：RM133,000.00

*详细的案情和判决，请阅读以下的英文版文章。

Introduction

1. The dispute before this Court is the claim by the Claimant that she was dismissed without just cause or excuse by Kool FM Radio Sdn Bhd (the Company) on the 8 August 2018.
2. On the 22 December 2013 the Claimant became the first prize winner in a TV reality show organized by an entity known as Media Prima Berhad. Arising out of this achievement, the Claimant was offered employment as Radio Announcer in a programme known as Radio Hot FM by an entity known as Synchrosound Studio Sdn Bhd (wholly owned subsidiary of Media Prima Berhad). The Claimant commenced employment with Radio Hot FM commencing January 2014. The Claimant was then offered a written contract of employment for a period of one year beginning 1 April 2014 to 31 March 2015. by Synchrosound Studio Sdn Bhd with a further extension of this contract until 31 March 2016. Before the expiry of this contract of employment, the Claimant was offered another contract of employment by the same entity on the 8 March 2016 with the commencement date of the contract from the 1 April 2016 to 31 March 2019 wherein in this contract of employment (prepared by Media Prima Berhad) the Claimant was assigned to work as Radio Announcer by Synchrosound Studio Sdn Bhd for an entity known as Radio Kool FM (owned by Synchrosound). The Claimant commenced employment with Radio Kool FM on the 3 March 2016 notwithstanding the contract of employment dated 8 March 2016 which was never terminated.
3. Sometime in mid year 2017, the Claimant alleged that one Puan Nik Nor Azura Nik Mahmood had told the Claimant that the Claimant must now set up a company in order to continue her employment as Radio Announcer with Radio Kool FM wherein the Claimant would also be required to enter a new contract. Left with no choice in order to continue her employment with Radio Kool FM, the Claimant complied with what she was directed to do in that the Claimant had now set up a company known as LKD Empire Sdn Bhd. On the 27 December 2017 Kool FM Radio Sdn Bhd (the Company) entered into an agreement with LKD Empire Sdn Bhd wholly owned by the Claimant for the service of Radio Announcer Performance Agreement (The Said Agreement) wherein the commencement period of this contract was from 1 December 2017 to 31 March 2019 being the same expiry time as stipulated in the agreement between the Claimant and Synchrosound Studio Sdn Bhd dated 8 March 2016 which agreement was never terminated nor brought to an end by the parties.
4. By a letter dated 1 August 2018, the Company invoked clause 7.3 of The Said Agreement between the Company and LKD Empire Sdn Bhd in order to terminate the Radio Announcer Performance service rendered by the Claimant. The said clause 7.3 under The Said Agreement stipulates that the Company may terminate The Said Agreement at any time by giving 7 days’ prior notice without giving any reasons and without any liability for compensation and/or damages for the termination. Under clause 6 of The Said Agreement the Radio Announcer is also deemed an independent contractor who is not to be construed as an employee of the Company. Under The Said Agreement between the Company and LKD Empire Sdn Bhd, the Claimant was paid a remuneration of RM7,000.00 per month which sum was paid directly and personally to the Claimant.
5. The Claimant now claims that she is a workman within the definition of s 2 of the Industrial Relations Act 1967 (The Act) and was employed under a contract of service and that she had been dismissed without just cause or excuse. The Company on the other hand contends that the Claimant was an independent contractor under a contract for services and as such is not a workman falling within the definition under The Act.
6. The Claimant gave evidence under oath and remained the sole witness for her case. The Company’s evidence was led by COW1 (Anida Mohd Tahrim) who is the Group General Manager in charge of content, production and marketing of the Company and COW2 (Sathiaseelan Paul Thurai) who is the Chief Executive Officer who is responsible for the issuance of the termination letter to the Claimant.

The Claimant’s Case

7. The Claimant’s case can be summarised as follows:-

• (x) Despite the Company entering into an agreement with LKD Empire Sdn Bhd the Claimant was the person specifically selected by the Company from LKD Empire Sdn Bhd as the one and only person to provide her exclusive service as the Radio Announcer of the Company.
• (xi) The Claimant continued with her service/employment as Radio Announcer for the Company performing the same duties and responsibilities throughout the whole period commencing from the first day she commenced her employment in January 2014 with no break in her service as Radio Announcer.
• (xiii) The Claimant claims that she is a workman for the Company within the meaning of s 2 of The Act and the termination of the Claimant from her employment with the Company without any reasons whatsoever is a dismissal without just cause or excuse.
• (xiv) The Claimant further claims that the Company’s action of converting the Claimant’s employment contract into a purported contract for services agreement was a sham device designed purely for the purpose of eliminating the Claimant’s status as an employee in order to deprive the Claimant’s basic and fundamental rights and entitlement as an employee that enjoins amongst other the right to security of tenure under The Act.
• (xv) The Claimant now prays that she be reinstated to her former position in the Company.

The Company’s Case

8. The Company’s case can be summarised as follows:-

• The Claimant is an independent contractor pursuant to The Said Agreement between a company known as LKD Empire Sdn Bhd (which is wholly owned by the Claimant) and the Company.
• The Said Agreement between the Claimant’s company and the Company is one of contract for services as opposed to a contract of service and therefore the Claimant is not a workman within the meaning of s 2 of The Act.
• The Claimant’s services to the Company through her company was as an independent contractor pursuant to cl 6 of The Said Agreement.
• The Claimant was mainly engaged to host the Petang Kool segment between the hours of 3.00 pm to 7.00 pm.
• The Claimant’s relationship with the Company was none other than a business relationship wherein the Claimant assumed the role of an independent contractor by virtue of the incorporation of her company known as LKD Empire Sdn Bhd through which she carried out services for the Company.
• The Said Agreement signed by the Company was with LKD Empire Sdn Bhd which is a business entity and not with the Claimant. Thus it was LKD Empire Sdn Bhd’s services that was terminated and as such there was no termination or dismissal of the Claimant under an employer – employee or master and servant relationship.

The Law Preliminary Issue: Whether The Claimant Is A Workman As Defined Under Section 2 Of The Industrial Relations Act 1967 (The Act)

9. Before this Court proceeds to deal with the issues and make a finding whether the Claimant was dismissed with or without just cause or excuse, it is incumbent upon this Court to first determine the argument put forth by the Company on the preliminary issue that the Claimant is not a workman within the definition of s 2 of the Industrial Relations Act 1967 (The Act).
10. Section 2 of The Act defines a contract of employment to mean any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as a workman and that other agrees to serve his employer as a workman.
11. Section 2 of The Act further states that a workman means any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute.

12. The Federal Court in the case of Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia & Anor [1995] 3 MLJ 369 laid down the determining factor between the contract of service and contract for services in the following manner: “In our judgment, the correct test to be applied in determining whether a claimant is a workman under The Act is that enunciated by Chang Min Tat FJ in Dr A Dutt v. Assunta Hospital [1981] 1 MLJ 304. We accordingly hold that a workman under The Act is one who is engaged under a contract of service. An independent contractor who is engaged under a contract for services is not a workman under The Act. We take this view because it provides, as earlier observed, for a flexible approach to the determination of the question. In all cases where it becomes necessary to determine whether a contract is one of service or for services, the degree of control which an employer exercises over a claimant is an important factor, although it may not be the sole criterion. These include, but are not confined to, the conduct of the parties at all relevant times. Their determination is a question of fact.”
13. This Court will now revert to the relationship between the Claimant and the Company. In doing so this Court is not limited to the terms contained therein in The Said Agreement signed by the Claimant through the company known as LKD Empire Sdn Bhd in order to ascertain the relationship between the parties. The nature of the Claimant’s duties and functions in the Company are very important factors for this Court to consider too in order to determine the true nature of the relationship between the Claimant and the Company. This Court in the course of interpreting the terms of The Said Agreement, will also take into account the conduct of the contracting parties in this case from the very day the Claimant commenced employment as a Radio Announcer with Media Prima Berhad.
14. There is also no dispute that Synchrosound Studio Sdn Bhd owned Radio Hot FM and Radio Kool FM and the Radio Announcer Performance Agreement was prepared by the Media Prima Berhad. The previous agreement dated 8 March 2016 between the Claimant and Synchrosound Studio Sdn Bhd which is wholly owned by Media Prima Berhad remains without any termination.

15. There were no reasons given by the witnesses who appeared for the Company who are also the same people connected with other entity under Media Prima Berhad as to why there is even a need for the Claimant to enter into a new agreement with the Company by forming a separate legal entity when the Claimant was already doing the same duties and function before signing The Said Agreement with the Company using the entity known as LKD Empire Sdn Bhd.
16. Even despite forming the company knowns as LKD Empire Sdn Bhd it was not disputed that the Claimant was still the person who was specifically chosen to provide her exclusive service as the Radio Announcer for the Company resulting the Claimant or LKD Empire Sdn Bhd having no option to choose who should be working for the Company selected from within LKD Empire Sdn Bhd. If the Company had entered into the agreement with LKD Empire Sdn Bhd and if the Company claims that LKD Empire Sdn Bhd is an independent contractor, then the Company ought not to have dictated that the service must and only be done by the Claimant and nobody else.

17. Having said that, this Court having perused The Said Agreement namely clauses 2A & 5 read together with schedule 1 and 2 cannot but agree with the submission of the learned counsel for the Claimant that the extent and degree of control the Company had over the Claimant can only be construed as one that creates an employer – employee/workman relationship. If not, how else would one construe the tasks of the Claimant for a period of 8 to 10 hours a day and on a daily basis which places the Claimant under absolute control of the Company for which she was paid a fix income of RM7,000.00 per month. Item 1 Schedule 1 under the scope of services include but not limited to the following in which the Claimant must cause daily execution of the on-air product of any of the Company’s radio station as assigned.
18. Further the Claimant must execute the formats, music and promotional policies as directed by the Company. Looking at the schedule of The Said Agreement in light of the surrounding circumstances of the case makes it abundantly clear to this Court that the Claimant is nothing but a person employed by an employer under a contract of employment to work for hire or reward in that it is clearly intended to be a contract of service as opposed to a contract for services.
19. This Court also took notice of the facts and circumstances of this case where the Claimant apart from the work as a Radio Announcer as stipulated in The Said Agreement also undertook office work and this can be seen from the Company’s own documents where the Claimant is shown to have undertaken office work on behalf of the Company. Further the Company’s own Statement In Reply in paragraph 1(f) clearly shows that the Claimant was mainly engaged to host the Petang Kool segment between the hours of 3.00 pm to 7.00 pm although her work is for 8 to 10 hours a day. What the Claimant does in the remainder period of time in the office of the Company is also not adequately explained by the Company since by The Said Agreement signed between the parties, the Claimant is to work for the Company for 8 to 10 hours a day. Surely she has office work to do as the Company’s own documents shows. In any event if the position taken by the Company that the Claimant is an independent contractor is to be acceptable then the question arises as to why this independent contractor is now doing office work for the Company during the duration of the contract especially between Monday to Friday which is commonly known as the period an employee of a Company would work in any given entity. There are also other features and facts of this case that suggest that the Claimant cannot be regarded as an independent contractor. The Company although insisting that it signed the agreement with LKD Empire Sdn Bhd was however remitting payments directly to the Claimant and not to LKD Empire Sdn Bhd for the Claimant’s remuneration. Does a Company that is transacting with third parties not aware that such act on part of the Company is improper even if the Claimant insisted that the payment was to be paid directly to her if the assertion of the Company that the Company at all times was only dealing with LKD Empire Sdn Bhd and not the Claimant in her personal capacity is to be believed. In any event it was the evidence of the Claimant that the tax invoice under LKD Empire Sdn Bhd was prepared and issued on the Company’s instruction and despite of this tax invoice under the name of LKD Empire Sdn Bhd the Company proceeded to make payment to the Claimant in her personal capacity. Further regardless of the extent of work done by the Claimant, her remuneration is fixed at RM7,000.00 per month clearly indicating that this Claimant was in fact earning a fixed monthly salary of RM7,000.00 per month and that she was not paid remuneration according to the work or services render by an independent contractor.
20. The wording contained in clause 6 of The Said Agreement is also unusual and inconsistent with what the Company now alleges in its case against the Claimant. It is unusual for the Company to define LKD Empire Sdn Bhd as The Radio Announcer in the introduction of The Said Agreement but at clause 6 breath life into this artificial legal personality/body corporate and turning it into a natural person (human being). This is evident when reading clause 6 as a whole and in particular the line which states that It is not the intention of the Company or the Radio Announcer………….. creating between them a relationship of employer – employee. The Act only defines a natural person (human being) as a workman and excludes any artificial legal person or personality/body corporate. Thus if the Company was truly transacting with LKD Empire Sdn Bhd then it would be totally unnecessary to include as its terms the so called exclusion of employer – employee relationship and the obligations. It is without a doubt that the true and actual person being referred to in clause 6 of The Said Agreement is not LKD Empire Sdn Bhd but the Claimant herself consistent with the definition of the workman as defined under s 2 of The Act.
21. This Court will now refer to the case of Lian Ann Lorry Transport & Forwarding Sdn Bhd v. Govindasamy Palanimuthu [1982] 1 MELR 1 wherein the Federal held that: “In our view, the duration and nature of an employment, be it temporary or permanent, is immaterial for the purpose of determining the existence of a contract of service. As long as there exists a relationship of a master and servant or that of an employer and employee, the law will infer a contract of service existing between them, notwithstanding the fact that the service or the employment is intended by the person in the position of master to be temporary or of a short duration only. And the law will imply the existence of such relationship where a person is hired by another as an integral part of the latter’s business.”
22. This Court having perused The Said Agreement and further taking into account the fact that apart from the functions of Radio Announcer, the Claimant also carried out office work for the Company, would therefore arrive at the inevitable conclusion that the Claimant by the nature of the work and duties performed, formed as an integral part of the Company’s business. (See also the case of Aminah Zaiton Amir & Anor v. Star RFM Sdn Bhd [2008] 1 MELR 209 which also involves a radio Announcer/Presenter).
23. Regardless of how the Company had coined the words in clause 6 of The Said Agreement suggesting that the Claimant/LKD Empire Sdn Bhd is an independent contractor. The business registration of the LKD Empire Sdn Bhd was done at the insistence of the Company before the Claimant’s employment with the Company could be continued. The Claimant too was placed in a position where she had to sign the agreement in order to continue her employment with the Company. It was very clear that the Claimant had a very weak bargaining power at that time when The Said Agreement was signed and the Company had taken advantage of the Claimant’s weak position to cause the signing of The Said Agreement.
24. Accordingly, this Court now makes a finding that the Claimant is a workman pursuant to s 2 of The Act and employed by the Company under a contract of employment/service.

Whether The Dismissal Is With Just Cause Or Excuse

25. The Court issued letter of termination dated 01.08.2018 to the Claimant exercising Clause 7.3 of The Said Agreement. This Court now rules that the termination of the purported services by LKD Empire Sdn Bhd in effect is a termination directed to the Claimant personally. In view of the position taken by the Company pursuant to clause 7.3 wherein no reason for the termination of the Claimant was given by the Company, this Court holds that the dismissal of the Claimant from her employment was effected by the Company without just cause or excuse. It is also too late now for the Company to advance any other reasons apart from the pleaded grounds and the contents as contained in the letter dated 01.08.2018 to suggest that there are other reasons for the termination of the contract of service of the Claimant.
26. In the case of Omar Bin Othman v. Kulim Advanced Technologies Sdn Bhd [2019] 1 MLJ 625, the Court of Appeal:

“[4] …Section 20 of IRA 1967 which reads as follows: 20(1) Where a workman…considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment….

[9] In essence, the employer’s reason for termination was based on a contractual right to terminate pursuant to ‘art. 3’. The termination was not based on poor performance, misconduct, redundancy, etc so as to demonstrate a prima facie case to terminate on just cause and excuse pursuant to s 20 of IRA 1967.

[11] …Whether it is probationary period, fixed term contract, etc where termination takes place before the expiry of the term, etc; it was incumbent on the employer to demonstrate that the dismissal was based on just cause and excuse. Otherwise, the termination is unlawful and cannot stand.”

27. This Court finds that the Company had failed to prove to the satisfaction of this Court, on the balance of probabilities that the dismissal of the Claimant from her employment with the Company was with just cause or excuse.

Permanent Employment Or Fixed Term Contract

28. In the case of Han Chiang High School Penang Han Chiang Associated Chinese Schools Association and National Union Of Teachers In Independent Schools, W M’sia [1988] 2 MELR 637, the Industrial Court:

“10. The Court realises that such genuine fixed-term contracts for temporary, one-off jobs are an important part of the range of employment relationships. Some such jobs are found in seasonal work, work to fill gaps caused by temporary absence of permanent staff, training, and the performance of specific tasks such as research projects funded from outside the employer’s undertaking. These are the types of work envisaged in Section 11 of the Employment Act, 1955, which may be embodied in contracts of service for a specified period of time. This type of fixed-term contracts are therefore to be differentiated from the so-called fixed-term contracts which are in fact ongoing, permanent contracts of employment.

29. In determining whether a contract is a genuine fixed term contract, this Court is duty bound to enquire the circumstances of this case as to whether the Company was honest in wanting to employ the Claimant on a genuine fixed term contract or whether the contract of employment by its nature was permanent in nature. This of course will depend much on the facts of this case.
30. In the Industrial Court case of Malaysia Airlines Bhd v. Michael Ng Liang Kok [2000] 2 MELR 302: “The question before the court is whether the claimant’s employment was under a genuine fixed-term contract or not. The mere description of a contract as one for a fixed-term or a similar label attached to it is not determinative of the matter. The court must undertake an inquiry into the question whether an employer genuinely had a need for the services of an employee for a fixed duration and thereby employed the employee for the said term stipulated in the contract.”
31. This Court having examined the facts of this case concludes that the Claimant was not employed on a genuine fixed term contract of employment.
32. The contract of employment of the Claimant with the Company is certainly one which is permanent in nature giving rise to the Claimant enjoying the minimum retirement age of 60 years (See Wong Mei Yoke v. Tien Wah Press (Malaya) Sdn Bhd [2017] 3 MELR 709).
33. This Court having concluded that:

• • the agreement that was designed by the Company with Media Prima Berhad’s participation in preparing the agreement which entity wholly owns Synchrosound Studio Sdn Bhd is a sham device and was brought into existence purely to defeat the Claimant’s legitimate rights as a permanent employee of the Company and as employee of Synchrosound Studio Sdn Bhd with years of service rendered and entitlement simply because it is an undisputed fact that the Claimant’s service as a Radio announcer (same role and duties) was without any break in service since January 2014 under the first contract of employment and following through to the date when her service was terminated.
  • No explanation as to consequences of signing new agreement: on the continuation of the Claimant’s service because it is in the evidence that when the Claimant enquired from COW1, the head of the Radio Kool FM (owned by Synchrosound Studio Sdn Bhd) as to why she had to enter a new contract of employment without any benefits that she as an employee is entitled to, COW1 could only say that it was the instruction of COW2 who is the CEO of Radio Media Prima Chain known as Ripple. COW1 did not make it clear to the Claimant that her previous years of service will come to an end by virtue of this new agreement and offer the Claimant an option to decide before entering this new agreement by disregarding the previous years of service. As such when the Claimant was told that this new agreement is to ensure that the Claimant would have continuation of her employment it must therefore take into account the previous years of service since January 2014.
  • Not Temporary Purpose:
  • there was no evidence that these renewals of the agreement between the parties are a design intended for temporary purposes. The Company was constantly creating new programmes signifying expansion that required the Claimant’s role as the Radio Announcer consistently for a long period of time. The Radio broadcasting business of the Company is also one that is continuous in nature.
  • Doing Office Work: In any event the Claimant was also doing office work for the Company. Evidence in Court also reveals that the work of the Claimant was taken over by another Radio Announcer employed by the Company soon after the termination of the Claimant who was performing all the roles and duties of the Claimant and this work of the Claimant existed even whilst this case is ongoing in this Court.
  • Permanent Employment: the Claimant was not employed on a genuine fixed term contract of employment but the Claimant’s contract of employment with the Company is one of permanent employment and that the Claimant’s years of service commenced since January 2014 and the computation will be based along this line when considering the appropriate remedy for the Claimant.

Remedy

34. It is now an undisputed fact that the Claimant’s employment had been taken over by another Radio Announcer. Further the totality of the facts of this as stated above also makes reinstatement of the Claimant to her former position in the Company not a suitable remedy. As such the appropriate remedy in the circumstances of this case must be compensation in lieu of reinstatement. The Claimant is also entitled for back wages in line with Section 30(6A) of the Act and the factors specified in the Second Schedule therein which states: “1. In the event that backwages are to be given, such backwages shall not exceed twenty-four months’ backwages from the date of dismissal based on the last-drawn salary of the person who has been dismissed without just cause or excuse;”
35. In the case of Dr James Alfred (Sabah) v. Koperasi Serbaguna Sanya Bhd (Sabah) & Anor [2001] 3 MLJ 529, Federal Court: “In our view, it is in line with equity and good conscience that the Industrial Court, in assessing quantum of backwages, should take into account the fact that the workman has been gainfully employed elsewhere after his dismissal. Failure to do so constitutes a jurisdictional error of law. Certiorari will therefore lie to rectify it. Of course, taking into account of such employment after dismissal does not necessarily mean that the Industrial Court has to conduct a mathematical exercise in deduction. What is important is that the Industrial Court, in the exercise of its discretion in assessing the quantum of backwages, should take into account all relevant matters including the fact, where it exists, that the workman has been gainfully employed elsewhere after his dismissal. This discretion is in the nature of a decision-making process.”
36. This Court must take into account the post dismissal earnings of the Claimant in order to make an appropriate deduction from the back wages to be awarded. The Claimant had given unchallenged evidence that since her dismissal from employment with the Company, she had been unemployed from the date of her dismissal (01.08.2018) until the period of May 2019 and thereafter she was only working as a part-time host in Astro Go Shop and had since August 2019 secured a contract of employment earning RM800.00 per episode/programme which could vary from 8 to 12 episode a month. This Court will take into account this income of the Claimant when scaling down the back wages awarded to the Claimant.
37. Having considered all the facts of case on the appropriate sum to be awarded and after taking into account the Claimant’s post dismissal earnings, this Court now orders that the Claimant be paid 1-month salary of the last drawn salary of RM7,000.00 for every year of service completed totalling 4 years taken from January 2014 and back wages of the last drawn salary of RM7,000.00 for 15 months. This will amount to:-

• • Backwages ordered: RM7,000.00 x 15 months = RM105,000.00
  • Compensation in lieu of Reinstatement: RM7,000.00 x 4 months = RM28,000.00

Total amount ordered by this Court: RM133,000.00

38. Final Order Of This Court
39. It is this Court’s order that the Company pays the Claimant through the Claimant’s solicitor, a sum of Ringgit Malaysia One Hundred Thirty Three Thousand (RM133,000.00) only less statutory deduction (if any) within 30 days from the date of this Award.

Source: Khairu Norliza Khairudin v. Kool Fm Radio Sdn Bhd [2020] MELRU 396

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*我们的律师楼拥有超过15年的执业经验。我们处理民事纠纷 (打官司/法庭诉讼)、商业纠纷、追讨债务、遗产分配、立遗嘱、离婚、抚养权、赡养费、产业分配、领养小孩、拟商业合约、拟买卖合约、银行贷款、法律咨询、法律顾问、等法律事务。全马的案件，我们皆都处理。

*We have more than 15 years of experience in the legal profession. We handle matters such as commercial disputes, civil litigation, debt recovery, probate & letter of administration, will, divorce, children custody, maintenance/alimony, adoption, distribution of matrimonial assets, drafting commercial agreement, drafting sale and purchase agreement, process loan documentations, legal consultation, legal advisory, miscellaneous legal works.

*Wilson Kuek是“法律与你同行 Law & Justice”面子书群组的创办人。“法律与你同行”是马来西亚最大的法律平台。我们每天为无数的平民百姓免费解除各类的法律困扰。

*浏览我们律师楼的法律文章: www.kuekong.com

*浏览我们律师楼的法律文章: www.kuekongklg.com

*订阅我们的YouTube: http://bit.ly/lawnjustice

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*Kuek, Ong & Associates. Advocates & Solicitors. No.86-1, Jalan Mahagoni 1, Bandar Botanic, 41200 Klang, Selangor Darul Ehsan. Klang Lawyer. 巴生(吧生)律师楼。#Kuek, Ong & Associates #Kuek Ong & Associates #Kuek Ong Associates #郭汪律师事务所 #郭汪律师楼

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