THE STRUCTURED GUIDELINE IN ANSWERING THE CASE STUDY GIVEN :

A203 BSMH5033 INDUSTRIAL RELATIONS ASSIGNMENT CASE LAW ON INDUSTRIAL RELATIONS IN MALAYSIA

• Students will be given a case law tried in different level of courts concerning any labour matters and disputes between unions or employees and organizations in Malaysia (please download the court case according to the name of the respective student).
• Students are required to identify and describe the issue or issues in point forms that exist between the two parties.
• Students are also required to address the issues by referring to the relevant labour laws or codes in Malaysia.
• State the relevant labour laws and codes to be referred to.
• In point form, you should, in :

Part 1 - Title: Case situation

In brief describe the situation of the case (details of the case)

• the parties to the case. the name of the company for e.g Intel Bhd. (the company) vs. the name of the trade union e,g Intel Electronic Trade Union (the union)..or the company vs, the name of individuals.
• the case status - the case was at which level of court and if it was being appealed, at what level it was appealed at (usually whether the employee or union or organization had appealed to quash the award of which court)
• The issues that led to the dispute or the issues that was brought to appeal.
• Location of the organization.
• Date of the case

Part 2 - Title : Issues to be addressed

• What are the issues to be addressed in order to solve the case eg. Whether the issues are about unfair labour practice or constructive dismissal or unfair labour practices.

Part 3 - Title : Issues for the Employee/Union ,

• identify the main issues for employee/union

Part 4 - Title : Issues for the Employer/ Management ,

• identify the main issues for the employer/management

Part 5 - Title : Suggestions on resolution of issues

(1) describe the best resolutions to the issues at hand by referring to the relevant Malaysian labour laws and codes such as the Employment Act 1955, The Industrial Relations Act 1967, the Codes of Conduct for Industrial Harmony 1975.

(2) your argument should be based and supported by them or any other related literature. (please quote the particular section of the act or codes used to support your argument)

You need to include all FIVE parts in your assignment. Note that NO first person narration should be used in the assignment for e.g. I or we. It should be ...the best resolution would be...or it is felt that the best resolution is....

BELOW ARE THE COURT CASE/QUESTION GIVEN :

CASE REFERENCE NO 1 :

This is a reference made under section 20(3) of the Industrial Relations Act 1967 ("the IR Act") arising out of the dismissal of Lim Poh Yin (hereinafter referred to as "the Claimant") by Asean Union Inc. and AU Assets Sdn. Bhd. (hereinafter referred to as the "1 st and the 2nd Respondents" respectively) on 13.02.2015

AWARD

Preliminary

1. Pursuant to the Industrial Court Interim Award No. 728 of 2016 dated 15.06.2016, AU Assets Sdn. Bhd. was consolidated with Asean Union Inc. and was heard together.

Factual Background

2. The Claimant essentially contended as follows:

a) That she was appointed by the 1st Respondent as Head of Legal and Company Secretarial of the 1st Respondent in October 2013 and claimed that she was paid a monthly salary of RM32,500.00. She also stated that she was responsible and in charge of all the Legal and Company Secretarial matters of all the subsidiaries in the Asean Union Inc. Group of Companies including the 2nd Respondent.

b) That in mid July 2014 she was not informed nor invited by the 1st Respondent to attend the Companies Group Retreat pertaining to team building in Pullman Hotel in Putrajaya for 3 working days. She only came to know of such event on the very day itself when all the staffs were leaving the office for that event and she was the only senior staff together with 2 other junior staffs that were left behind in the office.

c) That from July 2014 onwards, her duties and responsibilities as the Head of Legal and Company Secretarial have been gradually taken away from her. She further stated that she was never informed nor invited to attend all the meetings pertaining to legal and secretarial matters of the 1 st Respondent.

d) That the 1st Respondent had reduced her salary from RM32,500.00 to RM15,500.00 per month for the months of September and October 2014 respectively without her consent and/or agreement. She further claimed that her salary for September 2014 was only paid to her in the first week of November 2014 and her salary for October 2014 was only paid to her in the first week of December 2014.

e) Since the 1st Respondent refused to pay the Claimant the difference of her salary for the months of September and October as well as the 1st Respondents action of not paying her salary for November 2014, the Claimant issued a letter dated 16.12.2014 to the 1st Respondent asking the 1st Respondent to pay her the difference of her salary for those said months stated above. In the same letter she also asked the 1st Respondent to include her in all the meetings pertaining to legal and secretarial matters of the 1st Respondent and to return all her duties and responsibilities as the Head of Legal and Company Secretarial of the 1st Respondent to her.

f) Since the 1st Respondent did not reply to the Claimants letter dated 16.12.2014, the Claimant then sent another letter dated 07.01.2015 informing the 1st Respondent inter alia that the unilateral reduction of 4 her salary from RM32,500.00 to RM15,000.00 was a breach of the fundamental terms and conditions of her employment contract with the 1st Respondent.

g) Vide another letter dated 27.01.2015, the Claimant informed the 1st Respondent inter alia that she was very disappointed with the 1st Respondent that despite her earlier letters stating her protest and grievances, the 1st Respondent still refused to remedy the said breaches.

h) The Claimant subsequently received the letter dated 29.01.2015 from the 1st Respondent stating that the Claimant did not join the 1st Respondent as an employee with an agreed salary to be paid monthly and her services were obtained through Insure Asia Ltd. and her consultancy fee was paid based on the invoices received from Insure Asia Ltd.

i) The Claimant expressed her disappointment with the 1st Respondents reply vide her letter dated 11.02.2015. Since it was clear to her that the 1st Respondent has no intention of remedying all the said breaches of the fundamental terms and conditions of her employment contract and as such she had no choice but to consider herself constructively dismissed by the 1st Respondent with immediate effect.

3. The 1st Respondent on the other hand contended that:

a) Prior to being engaged by the 1st Respondent in 2013, the Claimant was previously engaged as a Legal Consultant by one, Insure Asia Ltd. and was subsequently introduced to the founder of the 1st Respondent, Encik Faidzan Hassan.

b) The Claimant was an independent contractor (independent legal consultant) engaged under contract for services and not workman employed under contract of service. The Claimant at all material times was not an employee of the 1st Respondent but appointed as independent legal consultant.

c) At the time of her alleged constructive dismissal on 11.02.2015, the Claimant was 61 years and 8 months that is to say that she had exceeded her mandatory retirement age of 60 years by 1 year and 8 months.

d) Since the Claimants age has exceeded her mandatory retirement age at the time of her alleged constructive dismissal on 11.02.2015, she cannot therefore be reinstated under section 20 of the IR Act.

e) Consequently, the alternative remedy of compensation in lieu of reinstatement also cannot be awarded to the Claimant as she had already attained the age of retirement at the time of filing of her claim under section 20 of the IR Act.

f) Sometime in 2013, the 1st Respondent had engaged the Claimant as an independent consultant to advise on matters pertaining to both legal and company secretarial matters with regard to the incorporation of the 1 st Respondent. At all material times, there was no contract of employment nor appointment entered between the 1 st Respondent and the Claimant.

g) The Claimant was never paid a monthly basic salary as her engagement with the 1st Respondent is only an independent legal consultant. She was paid consultancy fees by the 1st Respondent from October 2013 to November 2014 as tabulated below in Table 1:

No. Date/Month Consultancy fees paid by the 1 st Respondent to the Claimant (RM)

1. 16.12.2013 9,945.00

2. 31.12.2013 14,000.00

3. 25.02.2014 32,500.00

4. 11.03.2014 32,500.00

5. 24.03.2014 14,000.00

6. 31.10.2014 (for consultancy fees for September 2014) 15,000.00

7. 31.10.2014 (for consultancy fees for October 2014) 15,000.00

8. 27.11.2014 15,000.00

h) Table 1 shows that the Claimant was not paid a fix monthly fee/salary for her services that were rendered by her to the 1st Respondent. She was in fact paid consultancy fees as and when there were works assigned by the 1st Respondent and completed by her.

i) At all times the 1st Respondent did not deduct income tax, employees EPF and other statutory deduction from the consultancy fees paid to the Claimant. The 1 st Respondent also did not contribute the minimum amount of EPF required by law and did not contribute to the Pertubuhan Keselamatan Sosial (PERKESO) according to the rate fixed under the Akta Keselamatan Sosial Pekerja, 1969.

j) The 1st Respondent contended that the Claimant was not dismissed or constructively dismissed by the 1st Respondent.

k) The 1st Respondent had acted within its legal and contractual rights at all material times in respect of the payment of consultancy fees to the Claimant. The 1st Respondent was prepared to retain the Claimants engagement as independent legal consultant and had requested the Claimant to resolve this matter amicably with the 1st Respondent as stated in its letter dated 29.01.2015.

l) However, the Claimant through her letter dated 11.02.2015 threatened to treat herself as constructively dismissed in the event that the 1st Respondent did not exceed to her demand of being paid a monthly salary of RM32,500.00.

m) By the Claimants action of threatening to treat herself as constructively dismissed, the 1st Respondent took the position that the Claimant had effectively abandoned her engagement as an independent consultant under contract for services vide its letter dated 11.02.2015.

BELOW ARE THE QUESTION TO BE ANSWERED :

There are 3 issues to be determined by this Court, namely:

a) Was the Claimant engaged as an employee and therefore she comes within the definition of "workman" employed under a contract of employment pursuant to section 2 of the IR Act or as an independent contractor (independent legal consultant) engaged under contract for services by the 1 st Respondent?

b) If the Claimants name appears in the 1 st Respondents Organization Chart, is she automatically deemed to be an employee of the 1 st Respondent?

c) If the answers to the above 2 questions in 4 (a) and (b) are in the affirmative in that the Claimant is not an employee but an independent contractor (independent legal consultant) of the 1st Respondent, was the Claimant then constructively dismissed by the 1 st Respondent without just cause or excuse?