Full Award 18/4-1191/22

IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO. 18/4-1191/22

BETWEEN

MOORTHI A/L RAJOO

AND

MIEGA AGENCY

AWARD NO.: 245 OF 2024

BEFORE : Y.A. TUAN JEYASEELEN A/L T. ANTHONY

Chairman (Sitting Alone)

VENUE : Industrial Court of Malaysia

Penang Branch

DATE OF REFERENCE : 21.07.2022

DATES OF MENTION : 18.08.2022, 29.09.2022, 12.10.2022, 16.12.2022,

30.01.2023, 24.02.2023, 23.03.2023, 19.05.2023,
30.11.2023

DATES OF HEARING : 11.09.2023, 12.09.2023

REPRESENTATION : Mr. Arafas bin Abdul Razak

Learned counsel from Messrs Arafas & Jannah
for the Claimant

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Claimant present

Mr. Syed Saifulizan bin Syed Abd Razak

Learned counsel from
Messrs Haffiz Zuhair Adawiah & Co
for the Respondent

AWARD

The Reference

[1] This is a reference made on 21.07.2022 by the Director General of

Industrial Relations Department to the Industrial Court of Malaysia under

Section 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as

‘the Act’) arising out of the dismissal of MOORTHI A/L RAJOO (hereinafter

referred to as ‘the Claimant’) by MIEGA AGENCY (hereinafter referred to as

‘the Company’). The Director General’s reference in this case before the

Court requires the Court to hear and determine the Claimant’s complaint of

dismissal by the Company on 31.12.2021.

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[2] Together with the Claimant there are two (2) other Claimants,

Mageswaree a/p Muniyandi v. Miega Agency in case no. 18/4-1192/22 and

Marimuthu a/l Karuppen v. Miega Agency in case no. 18/4-1193/22 who had

their employment terminated on the ground of non-renewal of their

employment contracts. As such all three (3) cases were heard together by

this Court and the Court will hand down separate awards for each of the

Claimant as each Claimant had given evidence separately.

Brief Background Facts of the Case

[3] In brief, the Claimant pleaded in his Statement of Case dated 5.9.2022,

that he was employed by the Company as a gardener with a salary of

RM1,200.00 per month from 1.1.2020 until 31.12.2021 and that the issue in

dispute is the non-renewal of his contract by the Company on 31.12.2021

vide latter dated 28.12.2021 (CLB -1(a) p.1).

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[4] The Claimant pleaded that throughout his employment from 1.1.2020

until 31.12.2020 he was never given any written contract and was only given

a confirmation letter by the Company dated 31.3.2020 (CLB-1(a) p.2).

[5] Further, the Claimant stated that only for the period of 1.1.2021 until

31.12.2021 a written contract was given to him by the Company (CLB-1(a)

p.3-8). In addition, the Claimant pleaded that his job performance was

satisfactory and stated that there was no genuine fixed term contract with

the Company and therefore his job was not temporary, piecemeal, or work

performed for a specified period of time.

[6] Hence, he pleaded that the non-renewal of his contract was in fact a

dismissal without just cause or excuse.

[7] The Claimant pleaded for reinstatement to his former position and with

all the other usual reliefs.

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[8] The Company on the other hand in their Statement in Reply dated

23.9.2022, pleaded that an employment contract was signed between the

Claimant and the Company for a period from 1.1.2021 until 31.12.2021 as a

gardener.

[9] The Company admitted the non-renewal of the Claimant’s contract

which they claimed ended on 31.12.2021 and also admitted that the Claimant

was employed by the Company from 1.1.2020 until 31.12.2021.

[10] The Company admitted that that the Claimant was not given a written

employment contract for the period of 1.1.2020 until 31.12.2020. The

Company however denied that the Claimant’s job performance was

satisfactory and pleaded that they had met with the Claimant and informed

him about the complaints that his job performance was unsatisfactory.

[11] Further, the Company denied that there was no genuine fixed term

contract and stated that the job scope and the duration of work was explained

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and informed to the Claimant and that the Claimant agreed and understood

it.

[12] The Company further pleaded that the contract period of the

employment contract is based on the terms of the employment contract

dated 31.12.2020 in particular Clause (1) and Clause (13). The Company

denied that the non-renewal of the Claimant’s contract was a dismissal and

prayed that the Claimant’s claim is dismissed.

The issues for determination and the role of the Court

[13] It is established that the non-renewal of a fixed term contract is

considered as a dismissal as envisaged under s.20 of the Act along with

constructive dismissals, forced resignation and retrenchments etc. (See the

decision of this Court in Colgate Palmolive Sdn. Bhd. v Yap Kok Fong

[1998] 3 ILR 843).

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[14] The approach that is to be applied by this Court in determining the

issues in regard to a fixed term contract was succinctly stated by Faiza

Tamby Chik J in the case of M.Vasagam Muthusamy V Kesatuan Pekerja-

Pekerja Resorts World Pahang & Anor [2003] 5 MLJ 262 where His

Lordship had this to say:

“I am of the opinion that the Industrial Court had correctly addressed

the issue in this case by determining first whether or not the contract

in question was a genuine fixed term contract…. If the Industrial Court

made a finding that it was not a genuine fixed term contract but was

really a contract of employment, then only would the Industrial Court

be required to ask whether there was a dismissal or not and that if so

whether it was with just cause or excuse. In the instant case, since a

finding was reached that the contract concerned was indeed a genuine

fixed term contract, the question of there being a dismissal or not does

not arise.

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Once it is established that there is a genuine fixed term contract, the

dissolution of the contract upon reaching the expiry date of the fixed

term would clearly spell the end of the worker’s tenure with the relevant

company.”

[15] Hence this Court is duty bound to consider the following issues:

a. Whether the contract between the Claimant and the Company is a

genuine fixed term contract;

b. Should the Court find that the said contract is a genuine fixed term

contract, then at the conclusion of the said contract upon reaching the

expiry date would mean that the Claimant’s tenure with the Company

will come to an end.

c. If for any reason the Court finds that the said contract is not a genuine

fixed term contract, then the issue of whether or not there was a

dismissal and if so, whether it was with just cause or excuse will have

to be determined.

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The Standard of Proof

[16] Its trite that the Company bears the burden of prove on a balance of

probabilities that the contract between the Company and the Claimant was

a genuine fixed term contract and that it had come to an end by effluxion of

time. However, it is the employee who bears the evidential burden to prove

that there exist elements to show that the fixed term contract is not genuine.

(See the case of the High Court in Toko Inomoto & Ors v Mahkamah

Perusahaan Malaysia [2017] 1 LNS 201).

Evaluation of the evidence and findings of this Court.

[17] The fact of the Claimant’s dismissal under the contract of employment

by the Company is not in dispute. What is in dispute is whether the

employment contract between the parties is a genuine fixed term contract

(CLB-1(a) p.3-8). The Claimant pleads and submits that the said contract is

not a genuine fixed term contract and that it is actually a contract for a

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permanent position in the Company since the Claimant’s job is no way

temporary, piece meal and/or work performed for a specific period of time.

[18] The Company on the other hand denies the Claimant’s allegations in

their Statement of Reply and asserts that the said contract was in fact a fixed

term contract based on Clause (1) and Clause (13) of the said contract.

Clause (1) of the contract reads as follows:

1. Tempoh Kontrak Pekerjaan ini

Tempoh Kontrak Pekerjaan ini hendaklah untuk selama satu (1) tahun

bermula pada 1 Januari 2021 hingga 31 Disember 2021 dan akan di

sambung sekiranya prestasi kerja yang memuaskan.

[19] In light of the above, it is necessary for this Court to determine whether

the said contract was a genuine fixed term contract or not. It is not disputed

that the Claimant when he entered into the contract was fully aware of the

terms and conditions of the contract and that the tenure of employment under

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the contract was for a specified period. In cross-examination he testified as

follows:

S. Rujuk m/s 190 COB-1, ayat di m/s 198, kontrak bagi selama (1) tahun

akan tamat pada 31.12.2021 merujuk kepada kontrak pekerjaan yang ada

pada m/s 190?

J. Betul

S. Lihat m/s 190 COB-1, perenggan (1), Saya cadangkan kontrak ini bermula

dari 1.1.2021?

J. Betul

S. Tarikh tamat tempoh di para (1) kontrak ini adalah pada 31.12.2021?

J. Betul.

S. Jadi berdasarkan para (1) kontrak menyatakan kontrak bagi satu tempoh

yang dipersetujui sahaja?

J. Betul.

S. Disebabkan tempoh sepertimana dalam para (1) maka kontrak hanya

terikat kepada pihak-pihak selama tempoh yang dinyatakan dalam para (1)?

J. Setuju.

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[20] Nevertheless, the Claimant did not agree to a suggestion by learned

counsel for the Company that the said contract will not be applicable after

the expiry of the contract and that the Company is not bound to pay him any

salary etc.

[21] On the issue with regard to Clause (1) of the said contract wherein it

was stated that “akan disambung sekiranya….”, the Claimant agreed that

by reason of this clause the Company is not bound to extend the contract of

the Claimant and that the Company has a discretion whether to renew or not

to renew the said contract. The Claimant also agreed that he never met and

discussed with his employer about renewing his contract for the year 2022.

At the outset of the trial, learned counsel for the Claimant had informed the

Court that the questions put in the cross-examination of COW-1 covers the

cases of the two (2) other Claimant’s too.

[22] In her evidence through her witness statement (COWS-1) the

Company’s Assistant Manager, (COW-1) Nur Hidayu Bt Ramlee, testified

that the Claimant was employed as a gardener under the said contract and

further stated that employment under the said contract is employment for a

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fixed period of time that is fixed by the employer. When questioned by

counsel for the Company as to why COW-1 in cross-examination, disagreed

to a suggestion by the counsel for the Claimant that since the Claimant was

continuously employed from 2020 until 2021 and that his job function was

still in existence and therefore the contract of employment was not a genuine

fixed term contract and as such the Claimant was a permanent worker, in

response, it was the testimony of COW-1 in re-examination that the

Company obtained a cleaning services tender from the Ministry of Education

only for the period mentioned in the tender i.e. for a period of thirty-two (32)

months (refer COB-1 p. 1-7) and therefore she testified that “maka pekerja-

pekerja tak akan ikut saya selama-lamanya”.

[23] Further, under cross-examination she agreed that the Claimant’s

position was in fact existing even after he was terminated. According to the

tender document, the cleaning services tender was for cleaning schools and

educational institutions in Kedah and this tender was in respect of SJKT

Ladang Wellesley at Lunas, Kedah where the Claimant was employed as a

gardener by the Company. In relation to the tender, the Claimant in cross-

examination disagreed to a suggestion by the learned counsel for the

Company that the said tender was only temporary in nature and not
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permanent and that the Company had informed him that his employment

with the Company is based on the time period as contained in the said

tender.

[24] In order to decide on the issues posed by the parties as adverted to

earlier, it is necessary for this Court to refer to the decision of the Federal

Court in Ahmad Zahri Mirza Abdul Hamid v AIMS Cyberjaya Sdn. Bhd.

[2020] 6 CLJ 557 (which was cited by both the learned counsels of the

Company and the Claimant in their written submissions) where it was

decided that in determining whether a contract is a genuine fixed term

contract there are three issues to consider:

(i) The intention of the parties.

(ii) Employer’s subsequent conduct during the course of employment.

(iii) Nature of the employer’s business and the nature of the work which

an employee is engaged to perform.

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[25] There was clear evidence from the Claimant that he was aware that

the contract was for a period of one year. Furthermore, it was also

undisputed that the cleaning services tender obtained by the Company from

the Ministry of Education was for a contractual period of thirty-two (32)

months from 1.1.2020 until 31.8.2022 i.e. 2 years and 8 months only.

[26] In connection to this, COW-1 testified during cross examination as

follows:

S. Saya cadangkan Yang Menuntut-Yang Menuntut disambung kerja di

Syarikat daripada 2020 hingga 2021?

J. Setuju.

[27] Hence, it’s clear there was also only one renewal of the said contract

from the year 2020 to 2021 although there was no written contract for the

year 2020 and only a confirmation letter was issued to the Claimant (COB-1

p.189) which stated that the Claimant’s employment status as “Kontrak”.

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[28] Guided by the principles established in Ahmad Zahri Mirza and from

the evidence borne out from cross-examination of COW-1 and the Claimant,

it is clear that the intention of the parties to the said contract was that both

parties agreed to be bound by a contract with fixed terms in particular

Clause (1) of the said contract wherein it is clearly mentioned that the

contract was only for a period of one year and renewable at the discretion of

the Company on the condition that the Claimant’s job performance is

satisfactory.

[29] Looking at the totality of the evidence presented on the said contract

between the parties, the contract is clearly for a specified term of one year

and the said contract must be taken and read together with the tender

awarded by the Ministry of Education to the Company. Hence, it must be

appreciated that the employment contract between the Claimant and the

Company came into existence because of the cleaning services tender

which specifies in no uncertain terms that the tender is only for a period of

thirty-two (32) months and thereafter the tender expires.

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[30] In connection with this issue, COW-1 testified in examination in chief

that the Company does not have the cleaning services tender anymore at

the above mentioned school. Hence, it’s the finding of this Court that

Claimant’s job functions and position was for a fixed term and from the

evidence presented this was within the reasonable contemplation of the

parties.

[31] Furthermore, the situation in this case is specific in nature as compared

to the situation in the case of Ahmad Zahri Mirza since in Ahmad Zahri

Mirza’s case there were successive renewals of the employment contract

over a period of time, over a number of years which was considered by the

Federal Court as continuous employment without a break from 2009 to 2013

as opposed to the facts involving the Claimant and the Company where there

was only one renewal of the said contract from the year 2020 to 2021 as

confirmed by COW-1. Therefore, the possibility of successive renewals is

virtually non-existent since the cleaning services tender that was awarded to

the Company was only for a specified period of thirty-two (32) months.

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[32] Further, in the Court of Appeal case of A. Gilbert D’ Cruz v Sapura

Acergy Sdn. Bhd. [2022] 1 ILR 259, the Court of Appeal held that since the

Claimant’s contract of employment was renewed continuously from 2008

until 2015 and he was not employed for only a specific project, but the

Claimant was involved in all the Company’s project both local and overseas,

the Court found that the employment contract was not a genuine fixed term

contract. Following the principle established in Gilbert D’ Cruz, here in the

case before this Court, the Claimant was employed under a fixed term

contract made pursuant to a specific tender awarded to the Company and

his contract therefore cannot possibly be renewed continuously over a period

of time since the cleaning services tender was for a specified period of time

of thirty-two (32) months only.

[33] Hence, unlike the claimant in Gilbert D’ Cruz who was found to be not

employed for a specific project, the Claimant in this case before this Court

was employed under the said contract pursuant to a government tender for

specified time period.

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[34] Additionally, following the principle established in Ahmad Zahri Mirza

that the nature of the employer’s business should be taken into account, it is

the considered view of this Court that the main business of the Company

was dependent on the cleaning services tender awarded to them by the

Ministry of Education which contained a specified period of time for its

implementation as such it cannot be said that the Claimant’s employment

was permanent in nature.

[35] Furthermore, it was also pointed out by the Federal Court in Ahmad

Zahri Mirza that the total duration or the length of service with the employer

is also a factor to be considered. Here the Claimant was only employed for

a period of one year and ten months i.e. from 1.3.2020 until 31.12.2021 (refer

COB-1 p.189 and the Claimant’s pay slip from March 2020 until December

2021 COB-1 p.31 – 52) as compared to the Claimants in Ahmad Zahri Mirza

and Gilbert D’Cruz who had their contracts renewed continuously over a

period of several years as specified above.

[36] There was also no tender for a specific period of time involved in the

case of Ahmad Zahri Mirza unlike the facts of the case involving the

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Claimant where there was a government tender for cleaning services for a

specified period of time which was hinged to the employment contract of the

Claimant.

[37] It is therefore clear that the said contract between the Company and

the Claimant was a genuine fixed term contract which came into existence

pursuant to a government tender for school cleaning services which can be

said to be for a one-off and temporary in nature as it was only for a specified

period of thirty-two (32) months.

[38] In coming to this decision this Court finds support in the decisions of

this Court in Sime UEP Development Sdn. Bhd v Chu Sh Poi 1996 1 ILR

256 which was referred with approval by the Federal Court in Ahmad Zahri

Mirza. Here, this Court held that an employee cannot be considered to be

employed for a temporary or a one-off job if he was not employed for a

particular project and was involved in various projects during his tenure.

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[39] In addition, in the case of Malaysia Airlines Bhd v Michael Ng Liang

Kok [2000] 3 ILR 179, this Court found that the Claimant’s employment to

be permanent as the Company’s operations was not temporary in nature and

it did not have definite time period after which the business comes to a halt.

[40] In comparing the facts of the case in Sime UEP and Malaysia Airlines

Bhd to the facts of the case before this Court, the Claimant was employed

by the Company via the said employment contract pursuant to a cleaning

services tender valid for thirty-two (32) months only and therefore he cannot

be considered as a permanent employee employed on permanent contract.

[41] As such, under no stretch of imagination can it be said that the said

contract is permanent in nature and that the Claimant is a permanent

employee. In the upshot, this Court is satisfied that the Company has proven

on a balance of probability that the said contract entered into by the Claimant

and the Company was a genuine fixed term contract.

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[42] It was also borne out from the crucible cross-examination of COW-1

by the learned counsel for the Claimant, that the Claimant’s job function

continued to exist even after the non-renewal of his contract and the issues

regarding the disciplinary problems of the Claimant was not stated in the

non-renewal letter issued by the Company to the Claimant.

[43] In addition and in referring to alleged disciplinary issues of the

Claimant, COW-1 also testified in chief (refer COWS-1 Q&A 20 and 21) that

there were complaints about the Claimant’s work performance and

disciplinary issues by the headmaster of SJKT Ladang Wellesley (refer letter

dated 7.12.2021 COB-1 p.199-200), where the Claimant was based as a

gardener and in re-examination COW-1 testified that the Claimant’s contract

was not renewed by reason of these issues.

[44] However, it’s the finding of this Court that the fact that the job functions

of the Claimant as a gardener was still in existence does not in any way alter

the fact that the contract of employment between the Company and the

Claimant is a fixed term contract and moreover this is not a case of

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retrenchment. (See the decision of this Court in Asian Supply Base Sdn.

Bhd. v Terry Mogindol [2005] 1 ILR 708).

[45] It is also trite law that the Company is not obligated to state reasons

for the non-renewal of the contract, as such the Court is of view that the

contention of the Claimant on this issue is without merit. (See the decision

of the High Court in M. Vasagam Muthusamy V Kesatuan Pekerja-

Pekerja Resorts World Pahang & Anor [2003] 5 MLJ 262).

[46] On the issue of the alleged poor performance of the Claimant which

was hotly contested by both parties, this Court is of view that it is a non-

starter as since the Court has found that the Claimant was employed under

a genuine fixed term contract based on the evidence presented and the

findings of the Court as adumbrated above and that the Company is not

obliged to state the reasons for the non-renewal, issues of the alleged poor

performance on the part of the Claimant is therefore irrelevant. The Court is

of the considered view that the Claimant has completed his employment

under a genuine fixed term contract and therefore that’s the end of the

matter.

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[47] In support of this view the Court relies on the decision of the Court of

Appeal in Colgate Palmolive (M) Sdn. Bhd. v Yap Pak Foong [2001] 3

CLJ 9, where the Court held:

“Like an employee in a genuine fixed term contract of employment who

leaves at the expiration of his fixed term, the retired employee has

completed his engagement with the employer for definite term, on

which event, he gracefully retires. That is just enough for an employer

to formally bring an end to their employment relationship.”

Conclusion

[48] Since this Court has found that the employment contract was a

genuine fixed term contract the question as to whether or not there was a

dismissal does not arise. As such the Claimant’s fixed term employment

contract came to an end on 31.12.2021 due to effluxion of time.

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[49] Hence, the Claimant’s case is hereby dismissed.

HANDED DOWN AND DATED THIS 13th DAY OF FEBRUARY 2024

-signed-

(JEYASEELEN A/L T. ANTHONY)

CHAIRMAN

INDUSTRIAL COURT OF MALAYSIA

PENANG

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