- 员工称由于原告未能让他晋升主管以及事务经理职位，导致他放弃履行雇用合約的条款，并被迫离职(Constructive Dismissal），他因此向工业法庭提出诉求。
- The Respondent (R) in this case alleged that he was employed by the Appellant (A) as a representative.
- 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.
- Therefore that A had wrongfully repudiated his contract of employment and contended that what had taken place was in law a constructive dismissal.
- 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.
- 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.
- 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.
- 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.
- 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 was a commission agent and not a workman.
- 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.
- 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.
- Appeal allowed.
Source: Kuala Lumpur Mutual Fund Berhad v. J.Bastian Leo & Anor  2 MLJ 526 Supreme Court
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