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
It is after all a Reply. The Claimant failed to plead in the SOC the issue that his was not a genuine fixed term contract and the Company did not address this issue in the SIR. Such failure in this case is not fatal to either party. The Han Chiang Principle In M Vasagam a/l Muthusamy v Kesatuan Pekerja-Pekerja Resort World, Pahang & Anor [2003] 5 MLJ 262. the Industrial Court dealt with the issue of whether the contract of employment was a genuine fixed term contract. The applicant in that case relied on the case of Han Chiang School, Penang Han ChiangAssociated Chinese Scholls Association v National Union of Teachers in independent Schools, W Malaysia [1988] 1 ILR 611 (“the Han Chiang case”). In the Han Chiang case the Industrial Court held that the system of fixed term contracts in the school was employed as a means of control of the teachers concerned. The intention of the school was to rid itself of the union, Hence the school relied on the fixed term contracts to get rid of the teachers who were members of the union. The Court held on the facts that the contracts of employment were not genuine fixed term contracts. In this case some of the teachers had taught at the school for more than 20 years and “had their contracts renewed unfailingly during those years without the need to reapply whenever their fixed term contracts expired. The teachers therefore claimed that they had the right to automatic renewals of their contracts upon their expiry because all along that had been the practice of the school in the past”. 14
The principle in Han Chiang appears to be that there must be clear facts to establish permanency of employment and to rebut the outward appearance of the fixed term nature of the contract. The Han Chiang situation is the exception to the rule. The Han Chiang case was distinguished in M Vasagam case. The Industrial Court in M Vasagam case upon examining the facts of the case found that there was a genuine fixed term contract. Fixed Term -The Arguments Burden of Proof The Company submitted that it was the Claimant's burden to prove that his contract was permanent and not a genuine fixed-term contract. The Claimant submitted that the burden was on the Company to adduce evidence to show that it was a genuine fixed-term contract. The Court is of the view that it is the duty of the Court to ascertain from the facts before it whether the case comes within the exceptional situation as in Han Chiang case. There must be clear facts to establish permanency of employment and to rebut the outward appearance of the fixed term nature of the contract. The Claimant's Arguments It was submitted on behalf of the Claimant that it was not the intention of the parties that the Claimant's employment with the Company was to be only for a 2 15
- 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 and 12: Decision on the First Issue The bur
- Page 13: It was argued on behalf of the Clai
- 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
- Page 27 and 28: was only reasonable that the first
It is after all a Reply. The Claimant failed to plead in the SOC the issue that his<br />
was not a genuine fixed term contract <strong>and</strong> the Company did not address this<br />
issue in the SIR. Such failure in this case is not fatal to either party.<br />
The Han Chiang Principle<br />
In M Vasagam a/l Muthusamy v Kesatuan Pekerja-Pekerja Resort World,<br />
Pahang & Anor [2003] 5 MLJ 262. the Industrial Court dealt with the issue of<br />
whether the contract of employment was a genuine fixed term contract. The<br />
applicant in that case relied on the case of Han Chiang School, Penang Han<br />
ChiangAssociated Chinese Scholls Association v National Union of<br />
Teachers in independent Schools, W Malaysia [1988] 1 ILR 611 (“the Han<br />
Chiang case”). In the Han Chiang case the Industrial Court held that the system<br />
of fixed term contracts in the school was employed as a means of control of the<br />
teachers concerned. The intention of the school was to rid itself of the union,<br />
Hence the school relied on the fixed term contracts to get rid of the teachers who<br />
were members of the union. The Court held on the facts that the contracts of<br />
employment were not genuine fixed term contracts. In this case some of the<br />
teachers had taught at the school for more than 20 years <strong>and</strong> “had their<br />
contracts renewed unfailingly during those years without the need to<br />
reapply whenever their fixed term contracts expired. The teachers<br />
therefore claimed that they had the right to automatic renewals of their<br />
contracts upon their expiry because all along that had been the practice of<br />
the school in the past”.<br />
14
Change language