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
years fixed term. It was submitted that although the Claimant's contract was stipulated to be for 2 years, it was a permanent contract in disguise. According to the Claimant he was assured by the Company's HR Head, and the Ex-CEO of this . The Claimant also pointed out that he was “head-hunted” from his previous position in Maxis to join the Company (Q&A 4, CLWS-1) to bring change. According to the Claimant he was even promised the possibility of being CEO after a stint as CMO. The Memo dated 16.4.2008 from Bjorn Kopperud (p.26, Exh 4, SOC) was referred to where it was stated “As CMO in Digi Tom will be part of the yearly processes. If his performance and potential proves good Telenor has the intention to find other challenges/roles for Tom in accordance with his ambitions and preferences and Telenor needs”. The Court noted that there were several contingencies. It was not a sure thing both ways, meaning for the employer and the employee. The Court finds that the above statements are not sufficient to establish that the parties had really intended permanency in the employment relationship. These matters are not sufficient to prove that it was not a genuine fixed term contract. The Decision on the Second Issue Whether the Claimant's contract of employment was a fixed term contract: The Court finds that in this case, based on the facts, it was a genuine fixed term contract . 16
Third Issue: If the dismissal was without just cause and excuse, whether the Claimant should be reinstated Reinstatement -The Legal Principles 1. Claimant being a foreigner is not a bar to reinstatement. This was made clear by the Federal Court in Assunta Hospital v Dr. A.Dutt (1981) 1 MLJ 105 [TAB B of Claimant's Additional Bundle of Authorities], where the Court held that: “As for the non-citizens status of Dr. Dutt, we share the astonishment of the judge at the relevance of this point. Our views can be stated shortly, whether Dr. Dutt can get an extension of his visit-pass so as to be able to say in this country or the issue of a work-permit in order to be able to take up the appointment are not matters that can influence the Court in proper exercise of the jurisdiction conferred on it by the minister's reference of the representations for reinstatement. If an order is made ordering reinstatement and the workman is unable to obtain either the visit-pass or the work permit, the employer would not be in contempt of the order. It is for the workman to make the order effective. All that the hospital had to do is to make the post available to the workman. As for any suggestion that the order for reinstatement would influence the ministry of Home Affairs to issue the visit-pass or the work permit, there cannot be any truth in it, and it cannot possibly be said that the ministry of Home Affairs is bound to comply with the order for instatement. In any event, it is of no concern to the hospital.” 17
- 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 and 14: It was argued on behalf of the Clai
- Page 15: The principle in Han Chiang appears
- 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
years fixed term. It was submitted that although the Claimant's contract was<br />
stipulated to be for 2 years, it was a permanent contract in disguise. According to<br />
the Claimant he was assured by the Company's HR Head, <strong>and</strong> the Ex-CEO of<br />
this .<br />
The Claimant also pointed out that he was “head-hunted” from his previous<br />
position in Maxis to join the Company (Q&A 4, CLWS-1) to bring change.<br />
According to the Claimant he was even promised the possibility of being CEO<br />
after a stint as CMO. The Memo dated 16.4.2008 from Bjorn Kopperud (p.26,<br />
Exh 4, SOC) was referred to where it was stated “As CMO in Digi Tom will be<br />
part of the yearly processes. If his performance <strong>and</strong> potential proves good<br />
Telenor has the intention to find other challenges/roles for Tom in<br />
accordance with his ambitions <strong>and</strong> preferences <strong>and</strong> Telenor needs”.<br />
The Court noted that there were several contingencies. It was not a sure<br />
thing both ways, meaning for the employer <strong>and</strong> the employee.<br />
The Court finds that the above statements are not sufficient to establish that the<br />
parties had really intended permanency in the employment relationship. These<br />
matters are not sufficient to prove that it was not a genuine fixed term contract.<br />
The Decision on the Second Issue<br />
Whether the Claimant's contract of employment was a fixed term contract:<br />
The Court finds that in this case, based on the facts, it was a genuine fixed term<br />
contract .<br />
16
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