- 1至3个案例：RM 350.00 + 基本工资
- 4至7个案例：RM 1050.00
- 第8个案例：RM 1200.00
- 高庭认为 E1中并没有明确说明员工的薪资会完全被一项新的计划(既是员工的收入是根据所获得的销售或案例而抽成) 所取代。如果在特定月份中，员工获得了4至7个案例，她显然不能只期望获得每月RM1050.00，这少于她的基本工资。按照这种逻辑，对员工来说，每月只获得一个案例更好，因为这样她就能得到RM2400.00的基本工资。这显然不可能是双方的意图。
- 对于雇主提出抗辩点，员工不应在两年后才向劳动部门提起申诉； 高庭不接受‘未坚持要求薪水，意味着她已放弃权利’的论点。法律上不能这么认定。根据首份录用信和其他随后的文件，薪水是她的合同权利。在劳工部审讯时，雇主并没有出示其他当时文件， 来表明她已放弃了这项权利。
- This is an appeal against the decision of the Assistant Director of Labour, Subang Jaya, dated 7 September 2020, who dismissed the claim for the balance of the appellant’s salary but allowed the claim for commission for the sum of RM9,070.
- The respondent is in the business of sourcing and supplying domestic maids. The appellant started her employment with the respondent company in 2016. By the letter dated 15 March 2016 (‘the first letter of appointment’), the appellant was appointed as the sales and marketing executive with a probation salary of RM2,000. The appellant was also to be paid a commission based on the sales, ie, the number of cases that she could secure for the respondent.
- In her evidence at the labour court, the appellant testified that her scope of work was to find customers who need the services of domestic maids, secure a contract with them, send the maids to the respective customers, collect payment from the customers and make arrangements for the renewal of the work permits of the said maids.
- On 15 June 2016, the appellant was confirmed in her job (‘the letter of confirmation’). The letter of confirmation, which was dated on the same day, reads, inter alia, as follows:
“After careful evaluation of your performance this is to inform you that with effect from 15th June 2016, you have been moved to Confirmation with our agency. You will now be Sales Executive and will report to Ng Jing Hao as the Sales Director.
Upon the said confirmation, the appellant’s basic salary was increased to RM2,200. On 15 December 2017, both parties executed a contract of appointment (‘contract of appointment’) confirming the ‘first tier sales salary’ of the appellant for RM2,200.”
- Subsequently, by a letter dated 20 December 2018 (‘exh E1’), the appellant’s basic salary was increased to RM2,400.
- However, from January 2018, the basic salary of the appellant, which was RM2,400, was deducted from the commission that the appellant was entitled through her monthly sales. The appellant also alleged her commissions for the sales she closed in December 2019, February, March, May and June 2020.
- At the labour court, the appellant’s claim against the respondent was for a sum of RM67,550 being the balance of unpaid salaries and commissions in 2018, 2019 and 2020. Particulars of the claim are as follows:
(a) unpaid salaries for 2018 – RM22,000;
(b) unpaid salaries for 2019 – RM28,800;
(c) unpaid commission for December 2019 – RM1,050;
(d) unpaid commission for February 2020 – RM9,910;
(e) unpaid commission for March 2020 – RM4,770; and
(f) unpaid commission for May and June 2020 – RM1,020.
AT THE LABOUR COURT
- At the time of filing her claim, the appellant was no longer an employee of the respondent, having tendered her resignation by giving a one month notice on 18 february 2020.
- After having heard the evidence, the learned Assistant Director of Labour (‘ADL’) concluded that the appellant was an employee under Section 69B of the Employment Act 1955. Section 69B(1) provides that:
“Notwithstanding the provisions of this Act, the powers of the Director General under paragraph 69(1)(a) shall extend to employees whose wages per month exceed two thousand ringgit but does not exceed five thousand ringgit.”
In the circumstances according to the learned ADL, the Employment Act does not apply to the appellant. Instead, in the determination of the dispute, the labour court had relied on the contract of employment between the parties. 由于员工的薪水超过2000，劳工法令并不能用于员工。在解决争议，劳工法庭只能依赖于双方的雇佣合同。
- The learned ADL in her finding held that:
(a) the letter in exh E1, which according to him, should be read to mean that the appellant is only entitled to the basic salary if she secured one to three cases only. There is nothing in the said letter that entitles the appellant to a basic salary if she secures more than three cases.
(b) the appellant had every opportunity to challenge the alleged non-payment of her salary when she was in the respondent’s employment. The fact that there was no evidence of this means that the appellant had condoned the non-payment of her basic salary for the relevant period.
(c) on the issue of the unpaid commissions, the learned ADL, in her grounds of judgment, held that such payments could only be made upon verification from the respondent’s account manager thus the verified claim in respect of the unpaid commissions was only RM9,070.
AT THE HIGH COURT
- At the High Court, the respondent did not deny that the respondent did not pay the appellant’s salary in 2018 and 2019. However, and in support of the decision of the learned ADL, the respondent argued that the appellant did not object during the material time.
- The claim for the unpaid salaries only arose after the appellant resigned from the respondent company.
- Therefore, it is the contention of learned counsel for the respondent that allowing the claim under this head at this stage would be tantamount to unjust enrichment. The respondent argued that the appellant should have informed the respondent company in 2018 and should not have waited for two years.
ANALYSIS: ON THE UNPAID SALARIES
- I agree with the learned ADL that since the appellant’s salary exceeds RM2,000, her rights if at all, are governed by the terms of the contract of service between the parties as provided for under s 69B of the Employment Act. 员工的薪水超过了RM2000，她的权利（如果有的话）是根据劳工协议书里的条款所支配。
What are the terms of the contract of service between the appellant and the respondent?
- The learned ADL seemed to be preoccupied with the letter in exh E1. But exh E1 specifically stated that the salary increment of the appellant was RM2,400 per month. It did not indicate that the appellant’s salary would be replaced in lieu of the proposed commission rate. It says, inter alia:
1 to 3 case: RM350.00 + basic salary
4 to 7 case: RM1050.00
8 case: RM1200.00
The learned ADL was of the view that the appellant was only entitled to the basic salary of RM2,400 if her sales were only between one to three cases.
1至3个案例：RM 350.00 + 基本工资
- I think the aforesaid finding is misplaced. Surely the appellant could not be expected only to earn the monthly commission of RM1,050, which was less than her basic salary if she secured between four to seven cases in one particular month. If we go by that logic, it is better for the appellant to secure one case a month since she would get her basic salary of RM2,400. This could not have been the intention of the parties.
- In my view, the document in exh E1 should not be read in isolation with other contemporaneous documents relating to the employment of the appellant. In short, the first letter of appointment, the letter of confirmation, the contract of employment and the document in exh E1 must be read together in order to ascertain the intention of the parties.
- The law can be found in the case Sri Kelangkota-Rakan Engineering JV Sdn Bhd & Ors v ArabMalaysian Prima Realty Sdn Bhd & Ors  1 MLJ 324. In that case, the first four documents were executed on an even date but the three other agreements were executed on different dates. In delivering the judgment of the Court of Appeal quoted the judgment of Raja Azlan Shah J (as the former LP then was) in Mohamed Isa & Ors v Abdul Karim & Ors  2 MLJ 165:
“It is a settled rule of construction that where several documents forming part of one transaction are executed contemporaneously, all the documents must be read together as if they are one (see Manks v Whiteley  1 Ch 735).”
What would then be the effect of reading together the first letter of appointment, the letter of confirmation, the contract of employment and the document in exh E1?
There is nothing in exh E1 that says that the appellant’s salary would be replaced completely by a new scheme of things — in the form of commissions based on the sales or cases secured by the plaintiff. E1中并没有明确说明员工的薪资会完全被一项新的计划(既是员工的收入是根据所获得的销售或案例而抽成) 所取代。
- In particular, the letter in exh E1 does not alter the term in the letter of confirmation dated 15 June 2016. The letter of confirmation reads, inter alia, as follows:
“The terms and conditions of your employment will remain the same as on the Offer Letter earlier except for the notice period. Your basic salary from now is RM2,200.00”
If indeed the parties intended to remove the salary clause in the previous documents, it would have been reflected in no uncertain terms in the letter in exh E1. 如果双方真的打算移除以前文件中的薪资条款，这本应在E1中毫不含糊地反映出来。
- Until and unless the previous terms were varied with consensus ad idem, they shall remain enforceable. 除非经过双方共识，而变动；不然，以前的条款是仍然有效的。
- The learned ADL had erred in concluding that the letter in exh E1 should have been read in isolation from other documents. This calls for appellate intervention.
Failure to Oppose
- The respondent argued that the appellant should not have waited for two years before filing her claim at the labour department. If that is the respondent’s position, it should have confronted the appellant at the hearing at the court below. I have gone through the notes of evidence from the record of appeal, and the respondent did not cross-examine the appellant on this issue. 雇主提出抗辩点说，员工不应在两年后才向劳动部门提起申诉。如果雇主没有在盘问证人环节，与员工对质。
- I do not accept the argument that the failure to insist on her salary means that she had waived her rights. That cannot be the position in law. The salary is her contractual right according to the first letter of appointment and other subsequent documents. There is no other contemporary document adduced at the hearing to suggest that she had waived this right. 高庭不接受‘未坚持要求薪水，意味着她已放弃权利’的论点。法律上不能这么认定。根据首份录用信和其他随后的文件，薪水是她的合同权利。在劳工部审讯时，雇主并没有出示其他当时文件， 来表明她已放弃了这项权利。
- All the documents that govern the relationship between the parties are in writing. It is my considered view that any form of the waiver on the part of the appellant must also be writing and unequivocal. A mere delay in the assertion of the appellant’s right does not constitute a waiver: see Deepak Jaikishan a/l Jaikishhan Rewachand & Anor v Intrared Sdn Bhd (previously known as Reetaj City Centre Sdn Bhd and formerly known as KFH Reetaj Sdn Bhd) & Anor  7 MLJ 437. 双方关系的所有文件都是书面形式。法庭认为，员工放弃权利的任何形式也必须是书面和明确的。仅仅是员工权利主张的延迟并不能构成放弃。
- On the issue of unjust enrichment, the claim is a cause of action in itself separate from an action in contract or tort. Before the cause of action based on unjust enrichment can be established, the respondent has to show that:
(a) the appellant must have been enriched;
(b) the enrichment must be gained at the respondent’s expense;
(c) that the retention of the benefit by the appellant was unjust; and
(d) there must be no defence available to extinguish or reduce the appellant’s liability to make restitution.
The above four conditions were stated by Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd  2 MLJ 441.
- Applying the law to the facts of the appeal, I do not with respect think that the appellant could be said to be unjustly enriched in insisting that the arrears in her salaries ought to be paid by the respondent. She did not ask for more than RM2,400 per month that she was entitled to under the contract of employment. On this ground alone, the claim for unjust enrichment must fail.
ON THE UNPAID COMMISSIONS
- On the issue of unpaid commissions, I have gone through the record of appeal and am in complete agreement with the learned ADL in her findings.
- The learned ADL had made a factual finding that was based on the verified claim, which I do not intend to interfere with.
- For the reasons aforesaid, this appeal is partly allowed.
- The order of the learned ADL in respect of unpaid salaries in 2018 and 2019 is hereby reversed and substituted with an order for the respondent to pay the appellant a sum of RM50,800.
- As to the unpaid commissions, the order of the learned ADL is affirmed.
- Costs is fixed at RM5,000 subject to allocatur. Appeal partly allowed.
Source: Joanne Sim Lean Khim v Agensi Pekerjaan Ng Bersatu Sdn Bhd  8 MLJ 356. High Court Shah Alam. Wan Ahmad Farid J.
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