INDUSTRIAL COURT OF MALAYSIA CASE NO. 19/4-251/11 BETWEEN PUAN DARA ESAH BINTI NURDIN AND AEON CO.

(M) BERHAD .. AWARD NO. 1676 OF 2012 Before Venue Date Of Reference Dates of Mention Dates of Hearing Representation : : : : : : Y.A. PUAN HAPIPAH BINTI MONEL CHAIRMAN (Sitting Alone) Industrial Court Malaysia, Kuala Lumpur. 05.07.2010 21.04.2011, 14.11.2011, 28.05.2012. Mr. K.A. Ramu of Messrs. K.A. Ramu Vasanthi & Associates, Counsel for the Claimant Mr. Baljit Singh and Mr. R. Jayasingam of Messrs. BH Lawrence & Co, Counsel for the Company. REFERENCE This is a reference under section 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of PUAN DARA ESAH BINTI NURDIN (hereinafter referred to as the Claimant) by AEON CO. (M) BERHAD (hereinafter referred to as the Company) on the 20 May 2009. 23.06.2011, 30.11.2011. 22.08.2011, 10.10.2011, THE COMPANY .. THE CLAIMANT

AWARD Facts The Claimant was employed on a fixed term contract for a term of 6 months which was subsequently renewed twice after her performance being reviewed by the relevant officers of the Company.

The Claimant's last working day was on 20 th May 2009. The Claimant was informed via letter dated 5th May 2009 that her employment contract will expire on 20th May 2009.

Issue There are only two issues which are crucial in this case which are: a) b) Whether the Claimant was employed on a fixed term contract; and Whether the Claimant's non-renewal of contract was justified and bona fide.

The Company's Submission The Claimant was employed on a fixed term contract and issue of dismissal does not arise The Company submits that the Claimant was employed on a fixed term contract for a term of 6 months renewable upon the Claimant's performance being reviewed. The Claimant was employed via letter of offer dated 10 th November 2007 and subsequently renewed on 8th May 2008 and 26th September 2008.

The Company further submits that due to the Claimant's poor performance, her status as contract employee was never changed to a permanent employment.

An extract of the Claimant's Letter of Appointment and subsequent letter of reappointment is reproduced herein:
Per : Tawaran Jawatan Sebagai Pembantu Jualan Secara Kontrak . permohonan anda untuk bekerja sebagai PEMBANTU JUALAN secara kontrak di syarikat kami telah diluluskan. 2. 10. Tempoh Perkhidmatan : Enam (6) bulan kontrak Notis Penamatan (b) Jika mana-mana pihak tidak memberikan sebarang notis maka kontrak perkhidmatan akan tamat pada tarikh tamat kontrak. 15. Pembaharuan kontrak: Anda akan dimaklumkan sama ada kontrak ini akan diperbaharui sebelum kontrak ini tamat.

Further, the Claimant admitted the following during cross-examination: Ikatan dokumen COB1 muka surat 19
S: J: S: Setuju surat tersebut hanya kata kontrak kamu tamat pada 20.5.2009? Setuju. Setuju surat ini tidak menyatakan bahawa kamu telah dipecat atau dibuang kerja? J: S: Tidak setuju. Boleh kamu tunjukkan di mana dalam surat kata kamu dipecat atau dibuang kerja? J: Tidak ada. 3

S:

Selepas 20.5.2009 kamu tidak lagi bekerja di syarikat. Adakah kamu dipecat atau kontrak telah luput?

J: S:

Kontrak telah luput. Adalah kamu mempunyai sebarang dokumen yang menunjukkan kamu pekerja tetap?

J:

Tidak ada.

CLB2 Tab1 muka surat 3

S: J: Ini tandatangan kamu? Ya.

COB1 muka surat 5 S: J: Ini tandatangan kamu Ya.

During the re-examination of the COWS1, the witness has answered as follow:
S: selepas review ke 2, adakah awak ada terangkan Yang Menuntut perlu tingkatkan prestasi kerja? J: S: J: Ada. Apa yang diterangkan? Saya bersama-sama dengan beliau. Beliau bertanya bila beliau boleh confirm. Saya beritahu beliau, beliau kena tingkatkan prestasi kerja. Terutamanya kena pantas.

The Claimant also admitted that although the terms of the appointment letter stated that she is being employed as a contract worker, she has continued working there.

In case of Tan See Guan v. Pembinaan Infra E & J Sdn. Bhd (2011) 4 ILR 353. The Industrial Court at page 353 held that:
(1) The 6 months term had been expressly stated in the claimant's Letter of Appointment (LA)

and from the circumstances of the case, it had appeared that he had unreservedly accepted this term when he had appended his signature to the LA. (2) Since the claimant had been any good reason to go beyond the terms of the LA which had

been the ultimate expression of the contractual intent of the parties. (3) Since the claimant had been employed on a fixed-term contract, the factum of dismissal

had not arisen. The dissolution of the contract upon reaching the expiry date of the fixed-term or upon any extension to that expiry date would spell the end of the claimant's tenure with the company.

In the case M. Vasagam Muthusamy v. Kesatuan Pekerja-Pekerja Resorts World, Pahang & Anor (2003) 5 CLJ 448. The High Court at page 448 held that:
(1) Even if there was an irregularity, the ultimate issue remained whether or not the contract

was a genuine fixed term contract, and since there was a genuine fixed term contract, whatever irregularities complained of had no bearing on the question of the claimant's contract coming to an end. (2) Since the Industrial Court had found that there was a genuine fixed term contract, the

question of there being a dismissal or not did not arise as 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.

In the case of Asian Supply Base Sdn. Bhd v. Terry Mogindol (2005) 1 ILR 708. The Industrial Court at page 708 held that:

(1)

Based on the letter of appointment, it was shown that the contract of employment between

the claimant and the company was indeed a genuine fixed term contract. The letter did not suggest that the employment contract was on a permanent basis. (p. 718 f-i, 719 a-e). (2) The claimant's presentation of a board paper to the company's board of directors for the

renewal of the contract indicated beyond doubt that the claimant knew or ought to have known as a fact that his contract was not permanent in character. The fact that the claimant applied for an extension of the contract did not alter the character of the fixed contract to that of a permanent contract. (3) Even though the company provided the reasons for the non-renewal of the said contract,

that did not mean that the contract of employment was not a genuine fixed term contract... (4) The mere existence of a clause that provided for a possibility of a further renewal based

on 'mutually agreed basis' did not convert the fixed term contract into permanent employment. Further, the mere existence of the right for the company to negotiate did not conclude that the fixed term was not genuine. Conclusively, since the contract was a genuine fixed term contract, the question as to whether there was a dismissal or not did not arise.

Moreover, the Claimant had failed to plead that she was on a permanent employment.

In the case Pernas Oue (K.L) Sdn. Bhd v. Choi Wai Ki (1997) 2 ILR 439. At page 4, the Industrial Court agreed that:
Furthermore the Court agrees with the company that the contention of the Claimant that he was on a permanent contract was not pleaded.

As such, it is clear that the Claimant was employed on a fixed term contract. The Claimant has admitted signing as acceptance the terms of the employment contract. The Claimant has also inquired to the COW1 as to when she can be confirmed.

All the above clearly shows that the Claimant was well aware about her fixed term contract. Therefore, in a fixed term contract, the issue of dismissal does not arise. The contractual employment would end on the expiry date of the contract.

Conclusion The Claimant was employed on a fixed term contract. There is no evidence adduced by the Claimant to indicate that her employment had been converted into a confirmed/permanent employment. As such, there was no dismissal of the Claimant and there was no need to provide any reason as to why the Company is not renewing the Claimant's contract. The Contract simply expires. Therefore the Claimant's claim is hereby dismissed.

HANDED DOWN AND DATED THIS 5 DECEMBER 2012

(HAPIPAH BINTI MONEL) CHAIRMAN INDUSTRIAL COURT OF MALAYSIA AT KUALA LUMPUR