industrial court malaysia - Malaysian Legal and Tax Information Centre
industrial court malaysia - Malaysian Legal and Tax Information Centre industrial court malaysia - Malaysian Legal and Tax Information Centre
Second Issue: Whether the contract of employment is a fixed term contract The Pleading Issue Neither the Claimant nor the Company in this case pleaded the issue of fixed term contract in their respective pleadings. IN the case R. Rama Chandran v The Industrial Court Malaysia & Anor (1997) 1 MLJ 145, it was held that: “It is trite law that a party is bound by its pleadings. The Industrial Court must scrutinize the pleadings and identify the issues, take evidence, hear the parties' arguments and finally pronounce its judgment having strict regards to the issues.” The Company submitted that it was the Claimant's burden to plead (and prove) that his contract was permanent and not a genuine fixed-term contract. It was argued on behalf of the Company that the Claimant had failed to plead that he was not on a fixed term contract and that instead his employment was on a permanent basis. The case of Pernas OUE (KL) Sdn Bhd v Choi Wai Ki [1997] 2 ILR 439 was referred to, where the Court held:- “Furthermore the Court agrees with the Company that the contention of the Claimant that he was on a permanent contract was not pleaded. 12
It was argued on behalf of the Claimant as follows: It was pointed out on behalf of the Claimant that the issue here is as to who is relying on the fixed term employment contract. It was argued that the Claimant is not relying on it but the Company is, especially to pre-empt any issue of reinstatement. It was submitted further that as the primary remedy under s.20 IRA 1067 is reinstatement, it must follow that it is for the Company to plead, or lead evidence on it being a fixed-term. The Claimant also submitted that it is trite law that he who asserts must prove (S.101&102 evidence Act 1950). Hence it was submitted that as it is the Company that is alleging the fixed term, it is incumbent on them to plead, and prove. The Court's View The Court is of the view that the failure to plead this issue as a specific item is not fatal in this case. Although it would have been far better for this fact to have been addressed specifically by the Claimant in the SOC and then responded to in reply in the SIR by the Company, the failure to plead this is not fatal. It must not be forgotten that the Claimant's claim seeks for reinstatement as a remedy, and in lieu of it, compensation. The facts (whatever facts are available) are before this Court to decide. Furthermore the Company in its Statement in Reply would normally address issues raised by the Claimant in the Statement of Case (SOC). 13
- Page 1 and 2: INDUSTRIAL COURT MALAYSIA CASE NO:
- Page 3 and 4: The Pleadings The Pleadings in this
- Page 5 and 6: Bjorn Magnus Kopperud to him (page
- Page 7 and 8: We wish you well in your further un
- Page 9 and 10: 'misbehaviour', 'inappropriate beha
- Page 11: Decision on the First Issue The bur
- Page 15 and 16: The principle in Han Chiang appears
- Page 17 and 18: Third Issue: If the dismissal was w
- Page 19 and 20: the relevant factors into considera
- Page 21 and 22: Appeal had observed that in industr
- Page 23 and 24: gainsaid that this is a very senior
- Page 25 and 26: In Robert John Reeves v Southern Ba
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It was argued on behalf of the Claimant as follows:<br />
It was pointed out on behalf of the Claimant that the issue here is as to who is<br />
relying on the fixed term employment contract. It was argued that the Claimant<br />
is not relying on it but the Company is, especially to pre-empt any issue of<br />
reinstatement.<br />
It was submitted further that as the primary remedy under s.20 IRA 1067 is<br />
reinstatement, it must follow that it is for the Company to plead, or lead evidence<br />
on it being a fixed-term.<br />
The Claimant also submitted that it is trite law that he who asserts must prove<br />
(S.101&102 evidence Act 1950).<br />
Hence it was submitted that as it is the Company that is alleging the fixed term, it<br />
is incumbent on them to plead, <strong>and</strong> prove.<br />
The Court's View<br />
The Court is of the view that the failure to plead this issue as a specific item is<br />
not fatal in this case. Although it would have been far better for this fact to have<br />
been addressed specifically by the Claimant in the SOC <strong>and</strong> then responded to<br />
in reply in the SIR by the Company, the failure to plead this is not fatal. It must<br />
not be forgotten that the Claimant's claim seeks for reinstatement as a remedy,<br />
<strong>and</strong> in lieu of it, compensation. The facts (whatever facts are available) are<br />
before this Court to decide.<br />
Furthermore the Company in its Statement in Reply would normally address<br />
issues raised by the Claimant in the Statement of Case (SOC).<br />
13
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