1. 被告（D）是原告（P）的员工。 P提议经过‘固定期限雇用合同’方式（简称为’FTEC
6. D未能支付RM45,000.00。 P起诉D。
- This is an appeal by the Appellant/Defendant against the whole of the decision of the learned Magistrate allowing the Respondent/Plaintiff’s claim whereby the Appellant/Defendant is ordered to pay the Respondent/Plaintiff the sum of RM45,092.05 together with interest and costs as per scale.
- The Defendant was an employee with the Plaintiff who was offered to work with the Plaintiff as a ‘Management Trainee’ vide a Fixed Term Employment contract dated 18 December 2012 (‘the Fixed Term Employment Contract’) and was placed on the Affin Management Programme (‘AMP’) for a period of 12 months.
- The salient terms and conditions of the said Fixed Term Employment Contract are as follows:
(a) The AMP program is for a period of 12 months effectively from 1 January 2013 to 31 December 2013.
(b) The Defendant’s monthly salary is RM2,800.00 per month (clause 1).
(c) Clause 3 provides:-
“3 PERMANENT EMPLOYMENT AND BONDING
Upon completion of this Programme, Affin Bank reserves the right at its absolute discretion to offer you a permanent employment and, you will be bonded for a period of two (2) years (Bond), effective 1 January 2013 to 31 December 2014. If you fail to fulfill this condition, you shall then be required to pay Affin Bank an amount of RM45,000.00 being expenses/fee incurred”.
(d) Clause 7 provides:-
“7 NOTICE OF TERMINATION
Notice of termination shall be 24 hours by either party during the Affin Management Programme. In the event if you wish to discontinue this Programme, you are required to refund to Affin Bank all the expenses incurred (internship allowance, training fees, medical expenses, among others) during your participation in this Programme”.
- The Plaintiff acknowledged and accepted the terms and conditions of the Fixed Term Employment Contract after attending an interview on 6 December 2012 conducted by Mr Krishna Naidu s/o D Suppiah (SP1).
- The Plaintiff carried out a briefing session on 19 December 2012 with the Defendant and 18 other management trainees who commenced employment with the Bank via similar Fixed Term Employment Contracts on 19 December 2012 after receipt of their curricular vitae and an interview session with PW1.
- SP1 and SP2 were present during the time a formal session was conducted by the Human Resource Department whereby one Puan Rozita was present. Collectively, PW1, PW2 and Puan Rozita took the initiative to explain the terms and conditions of the management trainees’ individual Fixed Term Employment Contracts with specific references to the clauses stipulated in the same as detailed in paras (a) to (d) above.
- The Defendant thereafter conducted an induction session/ programme organised by the Recruitment Department of the Bank whereby all management trainees were informed of the potential liability to pay compensation in the amount of RM45,000.00 (‘Fixed Compensation Sum’) in the event of premature termination of the Fixed Term Employment Contract.
- The Plaintiff signed on every page of his Fixed Term Employment Contract.
- The Defendant resigned on 12 July 2013 (just after 6 months into the Fixed Term Employment Contract) vide letter dated the same by giving one week notice from 12 July 2013 without paying the Fixed Compensation Sum of RM45,000.00.
- The Plaintiff vide letter dated 17 July 2013 had informed the Defendant that the Plaintiff accepted the Defendant’s resignation with his last day of service being 18 July 2013 and that the Defendant had to pay the Fixed Compensation Sum of RM45,000.00 to reimburse or indemnify the Plaintiff for the premature termination of the Fixed Term Employment Contract and/or being the fee incurred for the training as stipulated in the Agreement and for the breach of the AMP Bond.
- The Defendant failed to pay RM45,000.00.
- The Plaintiff vide their previous solicitors sent Letters of Demand to the Defendant dated 6 August 2013 and 3 September 2013 claiming for RM45,092.50.
- The Defendant’s solicitors vide letter dated 10 October 2013 responded on the Defendant’s behalf by giving an interpretation to cl 3 and/or the said Fixed Term Contract of Employment and refused to pay the RM45,000.00.
- The Plaintiff then commenced the suit at the Magistrate’s Court that was decided in the Plaintiff’s favour (‘Magistrate’s Court Suit’).
- Having heard the appeal, I had dismissed the Defendant’s appeal on 30 July 2015 with costs of RM4,000.00. Hence the appeal by the Defendant after having obtained leave of the Court of Appeal to appeal on 4 December 2015.
- Essentially the Defendant contends the learned Magistrate erred in her decision as she failed to interpret the Fixed Term Employment Contract properly namely that the learned Magistrate erred in law and in fact:
- (i) “[D]alam menafsirkan maksud Klausa 3 di dalam Perjanjian Kontrak Perkhidmatan yang bertarikh 18 December 12 yang mana jelas menunjukkan Perayu tidak terikat kepada Klausa 3 tersebut kerana Klausa 3 itu terpakai setelah tamat program latihan.”
- (ii) “[K]erana memutuskan Klausa 7 Perjanjian Tersebut hendaklah dibaca bersama dengan Klausa 3”.
- The Defendant argues as follows:
- the Plaintiff’s pleaded case is the Defendant breached the Fixed Term Employment Contract when he tendered his resignation;
- the Plaintiff’s claim is for RM45,000.00 which is breach of clause 3 of the Fixed Term Employment contract;
- breach of clause 7 was not the Plaintiff’s pleaded case;
- the learned Magistrate correctly held that under cl 7 the Defendant’s notice of resignation was valid. However she erred when she went on to hold that the Defendant knew about cl 3, therefore the Defendant was bound to pay the sum referred to in cl 3 ie RM45,000.00;
- the learned Magistrate interprets the words “all expenses” in cl 7 as referring to RM45,000.00 in clause 3; this warrants appellate interference as she decided the case on a matter not pleaded by the Plaintiff;
- the learned Magistrate erred when she relied on clause 7 and misinterpreted clause 3;
- Clause 3 ought to be interpreted in this manner: “Clause 3 refers to “Upon Completion of this Programme, Affin Bank reserves the right at its absolute discretion to offer you permanent employment and you will be bonded for a period of two (2) years (Bond), effective 1 January 2013 to 31 December 2014. If you fail to fulfill this condition, you shall then be required to pay Affin Bank an amount of RM45,000.00 being expenses/fee incurred. ………….. The operative words in Cl 3 whereby the Defendant will be bonded only kicks-in upon “completion of the programme” and “this programme” in Cl 3 refers to the one (01) year Management Training period (1 January 13 to 31 December 13). It is only “upon completion of this programme” which is 31 December 13 that the Plaintiff has the absolute discretion to offer a permanent employment up to 31 December 14″.
- Clause 7 is the only relevant clause to the case in that: “It says “Notice of termination shall be 24 hours by either party during the Affin Management Programme”. This is the programme that runs from 1 January 13 to 31 December 13. The Defendant resigned on 12 July 13, during this programme”.
- under cl 7 the Plaintiff must prove the expenses incurred and no evidence was led on this;
- even if the Plaintiff had breached cl 3, the Plaintiff must still prove its loss: s 75 of the Contracts Act 1950 and Selva Kumar a/l Murugiah v. Thiagarajah a/l Retnasamy  1 MLJ 817 for the proposition that the party who seeks damages must prove it and the Plaintiff cannot rely on the sum named in the Fixed Term Employment Contract as such sum is a penalty and not recoverable; and
- if there is ambiguity in the Fixed Term Employment Contract between cl 3 and 7, the contra proferentum rule applies and it is to be construed against the Plaintiff.
- With respect I find there is no merit in the aforesaid arguments of the Defendant for 2 reasons.
- It is incorrect for the Defendant to say the learned Magistrate erred in her finding of the words “all expenses” as referring to the RM45,000.00 in cl 3 because it was never pleaded. From the pleadings, it is clear that the Plaintiff’s cause of action is the Defendant has breached the terms and conditions of the Fixed Term Employment Contract in that whilst the Defendant’s resignation was in accordance with cl 7 but he failed to pay compensation of RM45,000.00 as stipulated in cl 3 of the Fixed Term Employment Contract.
- I am of the view that one cannot approach this case by merely interpreting the material clauses of the Fixed Term Employment Contract, cls 3 and 7 inclusive in a vacuum without deliberating on the evidence of the witnesses.
- The learned Magistrate considered the issue of “Samada penamatan Defendan sebelum habis tempoh program/latihan tersebut adalah bertentangan dengan perjanjian tersebut menyebabkan Defendan bertanggungan untuk membayar balik Plaintif jumlah RM45,000 dan atau perbelanjaan lain yang dikeluarkan oleh Plaintif. Persoalan ini membawa kepada isu kedua iaitu samada Defendan mempunyai pengetahuan tentang bayaran balik berjumlah RM45,000 tersebut sekiranya Defendan menamatkan perkhidmatan beliau ketika program tersebut masih berjalan.” The learned Magistrate answered the question in the affirmative by saying “Ya’, maka isu berkenaan pengetahuan Defendan perlu ditentukan.”
- In determining whether the Defendant had the requisite knowledge that he was liable to pay compensation of RM45,000.00 if a Management Trainee leave prematurely before the AMP Bond period, I find the learned Magistrate has carefully considered and weighed:-
(a) the evidence of SP1, SP2 and SD1; and
(b) the supporting documentary evidence wherein the Defendant has signed and received the Fixed Term Employment Contract and also the ‘borang senarai semak’ dated 1 January 2013 which clearly showed that the briefing on terms and conditions was made to the Defendant on 19 December 2012.
- I find the learned Magistrate has taken into account 2 other critical factors in arriving at her decision that the Defendant has the knowledge that he is required pay compensation of RM45,000. One matter is the learned Magistrate took into account the fact that the Defendant failed to cross examine SP2 when she testified “Bahawa Defendan telah juga diterangkan berkenaan efek dan kesan klausa 3 dan7 berkenaan bayaran balik berjumlah RM45,000 tersebut apabila Defendan bertemu beliau selepas memberikan notis penamatan tersebut.” and resting on the authority of Wong Swee Chin v. Public Prosecutor  1 MLRA 125;  1 MLJ 212 (FC):- “…. On this point we need only say there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony …..”, the learned Magistrate made a correct finding “Maka ianya dianggap terima oleh Defendan.” In this regard, I noticed the Defendant appears to have abandoned this ground of appeal as the Defendant did not raise this issue any more in the Defendant’s Written Submission dated 20 April 2015 and neither was it pursued in oral submission. To reiterate the learned Counsel for the Plaintiff was zeroing only on the interpretation of the Fixed Term Employment Contract, particularly, cls 3 and 7.
- The other factor is when the learned Magistrate assessed the evidence of SD1:- “Sementara itu, keterangan SD1 yang mengakui bahawa terma-terma perjanjian tersebut telah diterangkan kepada beliau ketika sesi induksi kecuali klausa 3 sahaja adalah tidak munasabah. Saya berpendapat, adalah pelik sekiranya SP1 menerangkan klausa-klausa lain sahaja tanpa klausa 3 sedangkan klausa 3 adalah antara terma utama perjanjian tersebut. Oleh yang demikian, saya bersetuju dengan saksi-saksi Plaintif dan peguam Plaintif bahawa Defendan mempunyai pengetahuan penuh tentang bayaran balik sebanyak RM45,000 tersebut dari awal lagi”. For the reasons given above, the learned Magistrate has not erred in her findings that the Defendant was fully aware as to the intention of the Plaintiff and the meaning to be accorded to the salient clauses there in.
- Consequently it follows that there is no ambiguity between cls 3 and 7 of the Fixed Term Employment Contract as to warrant the Court to invoke the contra proferentum rule against the Plaintiff. In the circumstances it is my respectful view neither is it necessary for this Court to consider whether the Plaintiff must prove its loss or the question of cl 3 being a penalty clause.
- For all the foregoing reasons I dismiss the Defendant’s appeal.
Source: Darshan Ramakrishna v. Affin Bank Berhad  MLRHU 614. HC. Lau Bee Lan J
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