RUTH MARK MARK BAJANIK DAS v.TANG LING SHOPPING CENTRE SDN BHD
AWARD NO. 493 OF 2009 CASE NO: 10(23)/4-650/07]
[1] For resolution before this court is a reference made on 28 August 2006 by the Honourable Minister of Human Resources exercising his ministerial powers under s. 20(3) of the Industrial Relations Act 1967 ("the Act"). It entails the dismissal by Tang Ling Shopping Centre Sdn. Bhd. ("the company") of Ruth Mark a/p Mark Bajanik Das ("the claimant") from her employment on 15 March 2005.
The Brief Facts
[2] The claimant was employed by the company as a ‘Sales Assistant’ with effect from 21 December 2004. She was paid at a daily rate of RM28. On 15 March 2005 her service was summarily terminated.
The Issue
[3] The courts mandate on receiving a reference under s. 20(3) of the Act has be aptly articulated by Salleh Abas LP in the case of Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298 (SC) as follows:
When the Industrial Court is dealing with a reference under s. 20, the first thing that the court will have to do is to ask itself a question whether there was a dismissal and if so whether it was with or without just cause or excuse. (emphasis added).
[4] That there was a termination of employment of the claimant by the company is a common position adopted by both parties. This disposes the initial task of this court, which is to determine whether there was indeed a dismissal.
[5] The next function then of this court is to verify the propriety of that termination, that is, was it for just cause or excuse. This entails a three-step process:
i) establishing the employer’s reason for the dismissal;
ii) examining whether the reason has been sufficiently made out in the proceedings before the court; and lastly
iii) concluding whether that reason constituted just cause or excuse for the dismissal.
[See the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ 344 (FC)]
The Case For The Company
[6] COW1 (the sole witness for the company) one Ms. Pou Yoon Thau, the Human Resources Executive in the company, testified that sometime in December 2004 the claimant approached her at her office seeking a temporary position at the Shopping Centre. The claimant had informed COW1 that she was awaiting her results for the SPM examination. Ms. Pou then verbally offered the claimant the position of ‘Sales Assistant’ whilst allegedly informing her that the position would remain only until March 2005. The vacancy was apparently available at the time to accommodate the company’s "peak business time" of the school holidays; the company’s year-end stock taking exercise that would be undertaken in December and January and the Chinese New Year celebrations in February 2005 when many permanent staff would take leave. The rate of pay that was offered was in the sum of RM28 per day, payable strictly on confirmation of daily attendance at the job. In other words, "no work, no pay". According to COW1 the claimant duly accepted this temporary arrangement of employment and commenced work on 21 December 2004. The company produced 4 salary slips marked collectively as exh. COE2 which set out the earnings of the claimant for the months of December 2004 to March 2005. Each bore out the fact that the claimant was daily rated and paid for the actual days that she had worked in those respective months. Come 15 March 2005 COW1 summarily informed the claimant that her services were no longer required by the company and terminated her employment with effect from that date. Neither the appointment and its terms, nor the termination was reduced into writing.
The Case For The Claimant
[7] The claimant, who was the only one to give evidence on her own behalf, testified that as far as she was concerned she was offered and had accepted a "permanent position" as ‘Sales Assistant’ with the company. She stated that her salary was RM728 per month based on a daily rate of RM28 multiplied by 26 days. She confirmed having been assigned to the Men’s Department; that she wore the company’s uniform at work; and had worked under a supervisor on a regular schedule of shift duty. She confirmed the bone fides of the salary slips produced by the company and marked as exh. COE2. Prior to her dismissal on 15 March 2005 she had been on medical leave from 12 to 14 March; of which the company had been informed by her mother and for which she had produced a medical certificate to the company on the day of the dismissal. The claimant stated that COW1 had on the day in question merely informed her that her services were no longer required and then summarily terminated her employment.
Addressing The Issue
[8] The case of Goon Kwee Phoy v. J & P Coats (M) Bhd. [1981] 1 LNS 30, is binding authority for the proposition that the court is restricted in its inquiry into the veracity of the reason chosen by an employer for the dismissal. Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) speaking for the Federal Court ruled:
Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the court is the reason advanced by it and that court or the High Court cannot go into another reason not relied on by the employer or find one for it.
[9] In applying the three-step process that I have to embark upon to determine if the claimant’s dismissal was for just cause or excuse, I find a unilateral dismissal of a summary nature perpetrated by the company upon the claimant. In so doing, the company has dismissed the claimant and has done so without just cause or reasonable excuse. That, I so find. In arriving at this finding I find support in the case of Nik Omar Nik Man v. Bank Simpanan Nasional [2005] 4 CLJ 66 (CA). Though not relevant on material facts, I find the principal of law expressed therein exactly on point. In that case the reason given by the employer for the dismissal of the employee was as in the instant case, simply that his services were no longer required. Arifin Zakaria FCJ (as His Lordship then was) speaking for the Court of Appeal said:
We do not think it is open to the respondent (employer) to terminate the service of the appellant (employee) simply on the premise that his service is no longer required without giving reasons for it. It should be realized that what the respondent purported to do would have dire consequences on the appellant. (emphasis added)
The Claimant’s Contract Of Employment
[10] Having decided that the claimant’s dismissal was without just cause or excuse, I now turn to the remedy to be accorded to her. This turns on the key question of discontent between the parties. It involves the contract of employment between the claimant and the company; and a consideration of whether or not the claimant could be deemed to be a "workman" under the Act. Although this aspect of the case may well have been dealt with at an earlier stage of this Award, I chose to address it here.
[11] Section 2 of the Act defines ‘contract of employment’ as:
any agreement, whether oral or in writing and whether express of implied, whereby one person agrees to employ another as a workman and that other agrees to serve his employer as a workman;
and ‘employer’ as:
any person or body of persons, whether corporate or unincorporated, who employs a workman under a contract of employment, … .
and ‘workman’ as:
any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purpose of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute.
[12] In American International Assurance Co Ltd v. Dato’ Lam Peng Chong & Ors [1999] 2 CLJ 771 (Court of Appeal) per His Lordship Gopal Sri Ram JCA (as His Lordship then was):
First, the issue whether a person is a ‘workman’ as defined by the IRA depends upon the nature of the engagement in a given case. A person is a ‘workman’ if he is engaged under a contract of service. But he is an independent contractor and therefore not a ‘workman’ if his engagement is pursuant to a contract for services. The point has been concluded by binding authority. In Hoh Kiang Ngan v. Industrial Court [1996] 4 CLJ 687 the Federal Court laid down the applicable test as follows:
In our judgment, the correct test to be applied in determining whether a person is a ‘workman’ under the Act is that enunciated by Chang Min Tat FJ in Dr A Dutt v. Assunta Hospital [1981] 1 LNS 5. We accordingly hold that a ‘workman’ under the Act is one who is engaged under a contract of service. An independent contractor who is engaged under a contract for services is not a ‘workman’ under the Act. We take this view because it provides for a flexible approach to the determination of the question. It is fairly plain to see why flexibility is achieved by having resort to this test.
In all cases where it becomes necessary to determine whether a contract is one of service or one for services, the degree of control which an employer exercises over a claimant is an important factor, although it may not be the sole criterion. The terms of the contract between the parties must, therefore, first be ascertained. Where this is in writing, the task is to interpret its terms in order to determine the nature of the claimant’s duties and functions. Where it is not in writing, then its terms must be established and construed. But, in the vast majority of cases, there are facts which go to show the nature, degree and extent of control. These include but are not confined to the conduct of the parties’ at all relevant times. Their determination is a question of fact. When all the features of the engagement have been identified, it becomes necessary to determine whether the contract falls into one category or the other, that is to say, whether it is a ‘contact of service’ or a ‘contract for services’.
Second, it is clear from the Federal Court decisions in the
Dr Dutt and the Hoh Kiang Ngan cases that the question whether a person is a ‘workman’ is a question of mixed law and fact for the Industrial Court to decide. ‘The fact is the ascertainment of the relevant conduct of the parties under their contract and the proper inference to be drawn therefrom as to the terms of the contract, and the question of law (once the terms have been ascertained) is the classification of the contract as one of service or one for services’ (per Chang Min Tat FJ in Dr Dutt’s case) (emphasis added).
[13] And in Aetna Universal Insurance Sdn. Bhd. v. Tan Ann And Ors [1997] 1 ILR 851 (Award No. 163 of 1997) it was declared that:
The most authoritative pronouncement on the definition of ‘workman’ is to be found in the decision of the Federal Court in Hoh Kiang Ngan v. Industrial Court [1996] 4 CLJ 687, where the ratio decidendi as set out in headnotes 2 to 4 is as follows:
2 As the word ‘workman’ is defined in the IRA, it is not permissible to ascribe to it its common and ordinary meaning. The fact that the definition has been left unamended despite several amendments made to the Act points to the conclusion that Parliament intended to keep the definition of ‘workman’ flexible, with a view to its being worked out on a case-by-case basis.
3 The flexible and correct approach to determine whether a person is a ‘workman’ under the Act is to ascertain whether the contract is one of services or one for services. A ‘workman’ under the Act is one who is engaged under a contract of service, whereas an independent contractor who is engaged under a contract for services is not a ‘workman’ under the Act.
4 Where it is necessary to determine whether a contract is one of service or one for services, the degree and extent of control which is exercised over the person is an important factor, although not the sole criterion. The terms of the contract between the parties must first be ascertained to determine the nature of that person’s duties and functions. But in the vast majority of cases there are facts which show the nature, degree and extent of control, and these include the conduct of the parties at all relevant times. (emphasis added)
[14] The lack of a definitive document that sets out the terms and conditions of the employment agreement between the parties in the instant case does not help; but neither is it an insurmountable impediment. One only has to look at the manner and the conditions under which the claimant carried out her duties. Her testimony that she wore the company’s uniform at work; had worked under a supervisor in a single department (the "Men’s Department") and on a regular shift schedule, which remained largely unchallenged by the company, lends credence to the courts conviction that the claimant was subject to the company’s control to a sufficient degree to make it (the company) her master. The circumstances of the case show that the claimant was employed, as a ‘Sales Assistant’ as part of the company’s overall business of running a Shopping Centre. As a corollary, the court finds that the claimant was working under a contract of service, verbal though it may be and therefore was a ‘workman’ under the Act. This court finds further comfort in this ruling by reference to the case of Lian Ann Lorry Transport & Fowarding Sdn. Bhd. v. Govindasamy Palanimuthu [1982] CLJ (Rep) 173 @ 176 where Salleh Abas FJ (as he then was) speaking for the Federal Court held:
As long as there exists a relationship of a master and servant or that of an employer and employee, the law will infer a contract of service existing between them, notwithstanding the fact that the service or the employment is intended by the person in the position of master to be temporary or of short duration only. And the law will imply the existence of such relationship where a person is hired by another as an integral part of the latter’s business. Stevenson Jordan and Harrison Ltd. v. Macdonald and Evans [1952] 1 TLR 101. Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance [1968] 2 QB 497, 524. (emphasis added)
The Remedy
[15] This court heard testimony from COW1 that the company no longer runs the Shopping Centre as at the date of hearing. This was not challenged by the claimant. Under the circumstances, reinstatement would therefore not be an appropriate remedy in this case.
[16] On due reflection of the case as a whole, it is the view of this court that what would be the appropriate remedy is an order for a fixed sum as compensation for the wrong which the claimant has suffered. In the instant case, given that the claimant was only with the company but a short time, it is the order of this court that the claimant will be compensated to the extent of three (3) months of her highest monthly earnings as shown in COE2.
Final Order
[17] This court therefore for the reasons stated above orders the company to pay the claimant, through the Malaysian Trade Union Congress, the sum of RM2,184 [RM728 (claimant’s earnings for January 2005) X 3 months] as compensation within 30 days from the date of this Award.
[Dismissal without just cause or excuse - claimant awarded compensation in the sum of RM2,184.]
