Facts:

  1. The Respondent (R) in this case alleged that he was employed by the Appellant (A) as a representative.
  2. He complained that A failed to confirm his promotion to the post of supervisor and later failed to promote him to the position of acting agency manager and agency manager.
  3. Therefore that A had wrongfully repudiated his contract of employment and contended that what had taken place was in law a constructive dismissal.
  4. The matter was referred to the Industrial Court, which held that R was not a “workman” as defined in Section 2 of the Industrial Relations Act 1967. The claim by R was therefore dismissed.
  5. R applied for an order of certiorari and mandamus to the High Court. The High Court Judge quashed the award and directed it to hear the reference on the merits. A appealed.
  6. A gave four grounds to support their contention that R was not a “workman”:

(a) he was not paid a fixed remuneration but merely an allowance or minimum guarantee commission;

(b) no E.P.F. contributions were made by A;

(c) R had no fixed hours of work; and

(d) A had no control over R as to the manner in which R did his work.

 

Held:

  1. The fact that E.P.F. contributions were not made by the appellant company is inconclusive. Only the finding by a competent court of law that the appellant was or was not liable to make such contributions would bear any weight.
  2. The letter of appointment as A’s representative would naturally be the point at which to commence the Court’s enquiry. When read as a whole it would show that r-R was a commission agent and not a workman.
  3. There was no evidence in this case of the power of control over the manner of doing work, which still remains the most important indicia of a contract of service.
  4. Therefore the court agreed with the finding of the Industrial Court that R was not a “workman” within the meaning of the Industrial Relations Act.
  5. Appeal allowed.

 

Source: [1988] 2 MLJ 526 Supreme Court

 

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Contract for Service-Mutual Fund Representative