- 原告与公司在16.03.2020 签署一份offer letter, 被录取为Recruitment Relationship Manager。他原本应该在20.04.2020开始工作。
- 之后由于新冠肺炎的疫情，马来西亚政府在同年3月开始实施行动管制令。因此双方同意将offer letter 的生效日期延迟至04.05.2020。
- 然而公司在27.04.2020撤回之前签署的offer letter。公司表示由于疫情导致经济不景气，他们不再需要录取新员工。原告到劳资关系部做出投诉。
- 法庭表示在1967年劳资关系法第20条文下，若想在工业法庭提出诉讼，原告必须以“工人/员工workman ”的身份来做出诉求。如果原告还没开始工作，他就不属于“员工”。
- 所以，如果雇主在雇用合同里提到的雇用日期之前终止或撤销雇用合同，由于员工还没有成为该雇主的员工，工业法庭没有权利审非员工的提告 (Borneo Pulp & Paper Sdn Bhd v Raja Chellaiah  3 ILR 1227 and Elizabeth Voo Sook Ling v Kuala Lumpur City Securities Sdn Bhd  2 ILR 570)。
- By a Letter of Offer dated 16.03.2020, the Company offered the Claimant a position as Recruitment Relationship Manager with a salary of RM8,250.00 per month with commencement date on 20.04.2020. The Claimant accepted the Company’s offer of employment on 19.03.2020.
- Before the Claimant’s commenced his employment with the Company, Malaysia was affected by the COVID-19 pandemic and Movement Control Order was imposed by the government. The Claimant and the Company mutually agreed that the Claimant would commence his employment with the Company on 04.05.2020, rather then the original commencement date of 20.04.2020.
- However, on 24.04.2020 the Claimant received a call from Mr. Jonathan Hunt – Head of HR APAC Allegis Global Group that the Company was not able to offer the positon to the Claimant due to the economy downturn caused by the COVID-19. The Company informed the Claimant of its decision to retract the offer of employment and formally issued a letter dated 27.04.2020 to rescind the Letter of Offer dated 16.03.2020.
- The Claimant had earlier resigned form his position in Korn Ferry by giving one month notices to enable him to resume the position as Recruitment Relationship Manger offered by the Company.
- Dissatisfied with the Company’s decision, the Claimant filed a representative on dismissals under section 20 of the IRA. The representative was subsequently referred to the court pursuant to section 20 (3) of the IRA.
- The Company raises preliminary issues before the court and submits that the court does not have jurisdiction to hear this matter on the following grounds:-
(a) The Claimant failed to plead for reinstatement in his Statement of Case dated 12.04.2021; and
(b) The Claimant is not a ‘workman’ under section 2 of the IRA.
Evaluation And Findings
- It is trite law that a party is bound by its pleadings. The Industrial Court must scrutinize the pleadings and identify the issues, take evidence, hear the parties’ arguments and finally pronounce its judgement having strict regard to the issues ( Rama Chandran v The Industrial Court of Malaysia & Anor (1997) 1 CLJ 147 (FC). Ranjit Kaur S Gopal Singh v Hotel Excelsior (M) Sdn. Bhd.  8 CLJ 629 (FC)). 原告的控状和被告的抗辩文件里面的内容，都是限制双方在法庭的论点。双方不能提出自己文件以外的论点、理由、抗辩点。
- In the Statement of Case, the Claimant is seeking for compensation from the court for loss of income.
- Since the Claimant failed to plead for reinstatement, the court shall cease to have jurisdiction to adjudicate on the matter (Holiday Inn, Kuching v Lee Chai Sok Elizabeth  2 CLJ Rep 521, Chin Yoke Foon v Seimens Malaysia Sdn. Bhd.  4 ILR 312)
- In Felaco Aluminium Berhad v Razali Mohamed & Ors  1 ILR 375, it was held that since the Claimants did not plead for reinstatement but asked for compensation, the case was not within the purview of the Industrial Court. 如果你想让工业法庭审讯你的案件，要求复制赔偿(最高赔偿24个月)，你必须在你的控状里注明，你要求复职。如果你的控状，只要求赔偿，没有要求复职，工业法庭就不能审你的的案件，也因此会直接被推翻。
Whether the Claimant is a ‘workman’ under the IRA
- The Claimant had not commenced his employment with the Company. The letter of recession was issued on 27.04.2020, which is before the commencement date of the Claimant’s employment with the Company on 04.05.2020.
- In Borneo Pulp & Paper Sdn. Bhd. v Raja Chellaiah  3 ILR 1227, the Industrial Court held:- “After full consideration, the court finds that although these exists a contract of employment between the parties, the claimant in this case cannot be considered to be a workman within the context of s. 20(1) of the Industrial Relations Act 1967. Had he commenced work on 01.03.1997 as per the letter of offer he would have been a workman. Since the contract was terminated on 19.02.1997 before he could commence employment, the company was at best only a prospective employer of the claimant. In conclusion, the court is satisfied and finds that whilst a contract of employment had existed between the parties, the company had expressed an intention not to honour that contract. Since the termination of the contract on 19.02.1997 was before the stated date of commencement of employment, i.e. 01.03.1997, the claimant is not a workman within the contract of s. 20(1) of the Industrial Relations Act, 1967.” 工业法庭是审讯雇主和员工的案件。如果雇主和员工签署了雇佣协议书，员工在还没有上班前，雇主决定撤回/取消雇佣协议书，不聘请员工，由于员工还没有开始上班，他不是雇主的正式员工。由于不是正式员工，工业法庭不能审讯非正式员工的提控。
- In Elizabeth Voo Sook Ling v. Kuala Lumpur City Securities Sdn. Bhd.  2 ILR 570, the Industrial Court held: “Since this was an Industrial Court, in order for the claimant to succeed, the claimant must have been employed by the company. Here, the claimant had not commenced employment with the company. The terms ‘workman’ and ‘contract of employment’ are defined in s. 2 of the Industrial Relation Act 1967. The court held that the burden of proof was on the claimant to prove that she was employed by the company but since she had not commenced employment with the company, she was therefore not a workman of the company.”
- The courts finds that the Claimant herein is not a workman under the definition of IRA as he had not commenced employment with the Company on 27.04.2020.
- If the Claimant finds that there is a breach of contract on the part of the Company and claims for compensation, it is for the Claimant to bring the matter before the civil court for determination. 员工可以以雇主毁约，在民事法庭提告雇主，索取自己蒙受的损失/赔偿。
- Premised on the aforesaid, the court is satisfied that it has no jurisdiction to decide or determine the Claimant’s claim in this matter.
- The Court hereby allows the Company’s preliminary objection and dismissed the Claimant’s claim.
Source: Mohammad Ulfa bin Usamah v. Allegis Group Malaysia Sdn Bhd-Future Employee. Industrial Court Kuala Lumpur. YA Tuan Teoh Chin Chong. Decision on 19.04.2021.
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