IN THE INDUSTRIAL COURT OF MALAYSIA

IN THE STATE OF SARAWAK AT KUCHING

[ CASE NO: 17(8) / 4 - 1825 / 21 ]
[ CASE NO: 17(8) / 4 - 1826 / 21 ]
[ CASE NO: 17(8) / 4 - 1827 / 21 ]

MOHD AMEEN TAN BIN ABDULLAH

AZLAN YAP ABDULLAH
SAMSUL BIN ARIFFIN
AND

SHOREFIELD SDN. BHD.

AWARD NO.: 396 / 2023

Chairman : YANG ARIF DATUK INDRA BIN HAJI AYUB

Venue : Industrial Court of Malaysia, Sarawak

Date of Reference : 30.04.2021

Date(s) of Mention : 12.07.2021, 07.09.2021, 14.02.2022

02.08.2022, 20.09.2022.

Date of Hearing : 26.10.2022, 27.10.2022.

Counsel For The 1st Claimant : Brenda Chong

Messrs. Mustafa Kueh and Tambi Advocates
Kuching Sarawak

Counsel For The 2nd & 3rd Claimant: Andrew Lo Kian Nyian
Malaysian Trades Union Congress
Kuching Sarawak

Representative for the Company : Dzulzalani Bin Eden

Malaysia Employers Federation (MEF)
Kuching Sarawak

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 AWARD

A. REFERENCE

This is a reference by the Honourable Minister of Human Resources under

Section 20(3) of the Industrial Relations Act 1967 (“the IRA 1967”) arising
out of the dismissal of MOHD AMEEN TAN BIN ABDULLAH , AZLAN
YAP ABDULLAH and SAMSUL ARIFFIN (hereinafter referred to as “the
Claimants ”) by SHOREFIELD SDN BHD (herein referred to as “the
Company”) .

B. PREFACE

[1] This Ministerial reference required this Court to hear and

determine the Claimants’ complaint of dismissal by the Company.

[2] Pursuant to section 29(g) of the IRA 1967, these three cases of
17(8) / 4 - 1825 / 21 , 17(8) / 4 - 1825 / 21 and 17(8) / 4 - 1825 / 21 were
consolidated and tried jointly vide an Interim Award No. 1375/2021 dated
07.09.2021.

[3] MOHD AMEEN TAN BIN ABDULLAH ( “the 1st Claimant” ) by

way of a Letter of “Offer of Employment As Manager Procurement“ dated
23.06.2011, was employed by the Company for a period of 12 months
renewable at the Company’s discretion. The appointment was with effect
from 01.07.2011.

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[4] AZLAN YAP ABDULLAH (“the 2nd Claimant“) by way of a
Letter of “Offer of Employment – Storekeeper Supervisor“ dated
01.08.2017, was employed by the Company for a period of 1 year
renewable at the Company’s discretion. The appointment was with effect
from 14.08.2017.

[5] SAMSUL ARIFFIN ( “the 3rd Claimant”) , by way of a Letter of

“Offer of Employment As Manager Procurement“ dated 02.03.2017, was
employed by the Company for a period of 1 year renewable at the
Company’s discretion. The appointment was with effect from 15.03.2017.

[6] The Company had issued the relevant Letters of Offer, Letters
of Extension of Contract as well as Renewal of Contract to the Claimants in
which according to the Company the period of employment of the
Claimants’ was on a fixed-term basis and whenever there was a renewal of
contract, all other express and implied terms and conditions of the first
contract shall remain unchanged. The said letters also specifically stated
that, "the extension of the contract period is subject to the operational
requirement and the Company’s discretion.”

[7] Based on the Renewal of Contract dated 21.05.2020 issued by

the Company and signed by the Claimants, their contract was extended for
a fixed period of three months commencing from 01.07.2020 until
30.09.2020.

[8] The dispute emanates over the discontinuation of contract of

service of the Claimants by the Company. It was vide a letter of Expiry of

3
Contract of Employment dated 20.08.2020 that the Company informed the
Claimants that their employment will end by 30.09.2020 being the expiry
date of their employment as per the Renewal of Contract dated 21.05.2020.
Nonetheless the Claimants were granted an early release in which their last
working day were on 26.08.2020 and that the Company was unable to offer
and extend the Claimants’ contract.

[9] The Claimants contended that they were unlawfully terminated

and that the termination of their service by the Company was without just
cause or excuse.

[10] The Company however denies that the termination of the

Claimants’ employment were unlawful. The Company submitted that the
Claimants’ tenure had expired and that the Claimants’ retrenchment
exercise had been carried out bona fide. The Company prays for the
Claimants’ claim to be dismissed.

C. THE ROLE OF THE INDUSTRIAL COURT

[11] First and foremost, it is the duty of the Industrial Court to

determine whether the termination or dismissal is with or without just cause
or excuse.

[12] The Federal Court in the case of Goon Kwee Phoy v. J&P
Coats (M) Bhd [1981] 1 MLRA 415, where His Lordship Raja Azlan Shah,
CJM (as he then was) stated at p 430:

4
 “Where representations are made and are referred to the Industrial
Court for enquiry, it is the duty of that court to determine whether the
termination or dismissal is with or without just cause or excuse. If the
employer chooses to give a reason for the action taken by him the
duty of the Industrial Court will be to enquire whether that excuse or
reason has or has not been made out. If it finds as a fact that it has
not been proved, then the inevitable conclusion must be that the
termination or dismissal was without just cause or excuse.”

[13] It is also the role of the Industrial Court that it must act
according to equity, good conscience and substantial merits of the case
without regard to technicalities and legal forms.

[14] In Nadarajah v Golf Resort (M) Bhd [1992] 1 MLJ 506, Eusoff
Chin J (as he than was) says :

“ It is therefore to be observed that in view of the provision of s. 30(5)

of the Act , the Industrial Court must act according to equity, good
conscience and substantial merits of the case without regard to
technicalities and legal forms. Technical rules such as estoppel,
limitation, laches, acquiescence, etc … have no place in industrial
adjudication and they should not be allowed to be invoked for
defeating claims which are just and proper ”

D. THE LAW AND BURDEN OF PROOF

[15] In the case of Telekom Malaysia Kawasan Utara v. Krishnan

Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 the Court Appeal held that

5
the standard of proof in the Industrial Court is on the balance of
probabilities:

In our view the passage quoted from Administrative Law by H.W.R.

Wade & C.F. Forsyth offers the clearest statement on the standard of
proof required, that is the civil standard based on the balance of
probabilities, which is flexible so that the degree of probability
required is proportionate to the nature of gravity of the issue.”

E. THE COMPANY’S CASE

[16] The Claimants were employed by the Company on a renewable

fixed term contract .

[17] The 1st Claimant was employed as Manager, Procurement by

the Company with effect from 01.07.2011 for a period of 12 months
renewable . Vide a letter dated 26.01.2017 the 1st Claimant was offered a
job as Operations Manager of Transene Logistics Sdn Bhd for a period of
two years .

Subsequently, he was re-designated to a position of Manager, Logistic

Operations via a letter dated 15.01.2018 . Pending a decision for internal
restructuring the contract was extended for a fixed period of three months
from 01.07.2020 until 30.09.2020 via a letter dated 21.05.2020.

[18] The 2nd Claimant was employed by the Company as

Storekeeper Supervisor with effect from 14.08.2017 on a one-year

6
renewable fixed term contract . The contract was extended for a period of 6
months commencing 01.10.2019 until 31.03.2020 vide a letter dated
06.08.2019 . Pending a decision for internal restructuring the contract was
extended for a fixed period of three months commencing from 01.07.2020
until 30.09.2020 vide a letter dated 21.05.2020 .

[19] The 3rd Claimant was first employed as Executive-Trucking

with effect from 15.03.2017 on a one-year renewable fix term contract .
Vide a letter dated 28.07.2017 , he was offered a position of Executive-
Logistics for a period of eight months renewable with effect from
01.08.2018 until 31.3.2018 .

The contract was extended for one year commencing 01.04.2018 until
31.03.2019 vide a letter dated 30.03.2018 . By way of a letter dated
29.03.2019 the contract has been extended for one year commencing
01.04.2019 until 31.03.2020 .

Later, the contract was extended for a fixed period of three months from
01.04.2020 until 30.06.2020 via a letter dated 15.03.2020. Pending a
decision for internal restructuring ,the contract was further extended for a
fixed period of three months commencing from 01.07.2020 until
30.09.2020 via a letter dated 21.05.2020 .

[20] The Company has embarked on internal restructuring exercise

to minimize the financial impact of uncertainties surrounding
unprecedented pandemic Covid- 19, the Movement Control Order as well
as the fact that operational activities were gearing down for completion in
2020 and 2021 as stated in the management paper .

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[21] The Company has made the announcement on the internal
restructuring to all employees during the Employee Town Hall on
05.08.2020 in which it was announced that as a result of the internal
restructuring which has led to redundancy of workforce, the Company had
closed down the Logistics Department permanently

[22] Subsequently, the Company issued a notice of termination

dated 20.08.2020 as a result of the expiry of contract of employment due
to redundancy to the Claimants.

[23] The Claimants were granted an early release in which their last
working day were on 26.08.2020 and were all paid redundancy benefits as
per Labour (Termination and Layoff Benefits) (Sarawak) Rules 2008 in their
August 2020 pay. In addition, they were paid in lieu of annual leave and
payment in lieu notice period for early release.

[24] The Company alleged that as a result of the internal

restructuring exercise and the closure of the Logistic Department, the
positions of the Claimants become redundant. The retrenchment exercise
was carried out without any bad faith and hence, was with just cause or
excuse. The company further alleged that the internal restructuring
process involved a merger of three departments, namely Logistics,
Procurement and Warehouse into one department called Supply Chain
Management. This resulted in the Logistic Department being closed and as
such the retrenchment exercise is bona fide.

[25] The Company disputes each and every claim of the Claimants

8
and they are not entitle to any financial compensation nor reinstatement .

F. THE CLAIMANTS’ CASE

[26] The 1st Claimant’s details of employment with the Company are
as follows:

a) Manager of the Procurement Department – 1.7.2011 –

30.6.2015
b) Material Purchasing and Admin Manager – 1.12.2014 –
31.12.2016
c) Operation Manager of Transene Logistic Sdn. Bhd. – 1.2.2017
– 31.12.2018
d) Manager of Logistic Department – 1.2.2018 – 30.9.2020

[27] The 2nd Claimant employment background are these:

a) He first joined Shorefield Sdn Bhd on 17.08.2017 as

Storekeeper Supervisor attached at Warehouse Department
with a one year contract to 30.09.2018.
b) He was given an extension of 1 more year from 01.10.2018 and
30 .09.2019.
c) He was redesignated as Assistant Operations, whereby he was
assigned to Logistic Department with effect from January 2019.
d) He was further given an extension of 6 months from 01.10.2019
to 31 .03.2020, and
e) He was given further extension of 3 months from 01.04.2020 to
30.06.2020.

9
 f) A further 3 months extension was given from 01.07.2020 to
30.09.2020.
g) On 26.08.2020, he received a letter dated 20.08.2020 stating
that his employment will end on 30.09.2020. He was ordered to
leave the workplace immediately.
h) He was on continuous employment without any break
throughout the duration of his employment, whereby his
contract was extended 4 times immediately upon the expiry of
the previous contract.

[28] The details of employment of the 3rd Claimant with the

Company are as follows :

a) He was offered an employment by Shorefield Sdn Bhd

commencing from 01.08. 2017 to 31.03. 2018, whereby his
previous employment with Transene Logistics Sdn Bhd was
recognized as a continuation of service with all terms and
conditions being carry forward to the Company on a “personal
to holder” basis.
b) He was given an extension of 1 year from 01.04.2018 to
31.03.2019, and
c) He was given further extension of 1 year from 01.04. 2019 to
31.03.2020.
d) A further 3 months extension was given from 01.04.2020 to
30.06.2020.
e) His contract was further extended by 3 months from 01.07.2020
to 30.09.2020.

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 f) On 26.08.2020, he received a letter dated 20.08.2020 stating
that his employment will end on 30.09.2020 and he was
ordered to leave his work place immediately. His last drawn
salary was RM2,745.00.
g) He was on continuous employment without any break
throughout the duration of his employment, whereby his
contract was extended 4 times immediately upon the expiry of
the previous contract.

[29] The Claimants submitted that their dismissal from the Company
was without just cause or excuse. The Claimants further submits that the
Company did not comply by the Code of Conduct for industrial harmony in
dismissing them.

[30] The Claimants also submitted that there was no redundancy

and that their jobs still exists. Even if there was a redundancy, the
termination exercise was mala-fide, carried in a demeaning and high-
handed manner, for a collateral purpose and designed to drive the
Claimants out of employment and constitute unfair labour practice.

[31] The Claimants also contended that they were permanent

employees and the termination letter implicitly admitted that they were
permanent employees by paying them retrenchment benefits.

[32] The Claimants now challenge the termination notices dated

20.08.2020 as being mala fide thus claiming wrongful dismissal.

11
[33] The Claimants claims against the Company are these:

i. The reinstatement to their original position ,

ii. Payment of Back wages and Compensation in lieu of

reinstatement.

G. WITNESSES

[34] There were five witnesses testified in Court as follows :

CoW1 : Adi Afuan Zainuddin- – the Head of People

Department of the Company. His witness statement was marked as
CoWS-1.

CoW2 : Sazfina Mohd Razak – the Finance Officer of the

Company. Her witness statement was marked as CoWS-2.

CLW1 : Mohd Ameen Tan Abdullah – the 1st Claimant. His

witness statement was marked as CLWS-1 .

CLW2 : Nur Syazwani Abdul Malek – she was the Admin

Executive in Logistic Department of the Company (resigned in April
2021) . Her witness statement was marked as CLWS-2 .

12
 CLW3 : Azlan Yap Abdullah – the 2nd Claimant. His witness
statement was marked as CLWS-3 .

CLW4 : Samsul Ariffin – the 3rd Claimant. His witness

statement was marked as CLWS-4 .

H. ISSUES FOR DETERMINATION

[35] In the present case , after having considered the evidence

adduced before this Court, after reading the submissions by both parties
and after perusing the relevant Contract of Appointments, Letters of Offer,
Letters of Extension of Contract and the Letters of Renewal of Contract as
well as the Letter of Expiry of Contract Employment (“the said Contracts”)
, there are 3 substantive issues before this Court :

i. Whether the contract of employment was a genuine fixed –

term contract

ii. If it was a permanent contract of employment , whether there

was a dismissal , and

iii. If there was a dismissal, whether the termination of contract

was with just cause or excuse.

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I. THE COURT’S FINDINGS

WHETHER IT WAS A GENUINE FIXED- TERM CONTRACT

[36] It was the Claimants’ contention that they were on permanent

employment and not a fixed-term contract of service. They alluded to the
fact that the continuity of employment gave them a legitimate expectation
that their employment would not be terminated as they have been serving
the same workplace and their contract have been renewed/extended
previously.

[37] The Company on the other hand submitted that this was a
fixed-term contract of employment which had come to a natural end due to
the effluxion of time as well as due to redundancy of workforce.

[38] This Court has to answer the first question of the three posed
earlier, that is, whether the contract of employment was a fixed-term
contract.

[39] The test for determining whether a fixed-term contract is

genuine is laid down in Han Chiang High School Penang Han Chiang
associated Chinese Schools Association v National Union of
Teachers in Independent Schools West Malaysia [1998] 2 ILR 691.
One of the things the Court needs to look at in order to make such
determination is the intention of the parties when making the contract.

14
[40] The latest case law in respect of the test to determine whether
the contract of employment is a fixed-term contract is the case of Ahmad
Zahari Mirza Abdul Hamid v AIMS Cyberjaya Sdn Bhd [2020] 1 LNS
494. The Federal Court had laid 3 conditions that needs to be met in
deciding whether it is a genuine fixed term contract or not:

“[55] The judicial treatment regarding the question of whether an

employer had a genuine need for the service of an employee for a
fixed duration may be divided into three (3) consideration points –

The intention of parties … ,

Employers’ subsequent conduct during the course of employment ….
and
Nature of the employer’s business and the nature of work which an
employee is engaged to perform” (Emphasis added)

[41] In the instant case this Court is convinced that the Claimants’
employment was premised upon their acceptance of contract of
Appointment of a fixed- term contract , Letters of Offer , Letters of
Extension of Contract and the Letters Renewal of that fixed-term contract
offered by the Company in 2011, 2015, 2017, 2018, 2019 and 2020
respectively.

[42] It is pertinent to note the terms of the relevant Contract of

Appointments, Letters of Offer, Letters of Extension of Contract and the
Letters of Renewal of Contract which were undisputedly accepted by the
Claimants which inter alia stated as follows:

15
1st Claimant :

1. Letter of Offer of Employment as Manager dated 23.06.2011.

- “ Period of Employment : 12 months, with effect from 01.07.2011
until 30.06.2012.

2. Extension of Contract dated 06.07.2015 .

- “ Period of Employment : Extended until 31.12.2016.

3. Offer of Employment as Operation Manager dated 26.01.2017.

-“ Period of Employment : 2 years, with effect from 01.02.2017 until
31.12.2018.

4. Renewal of Contract dated 21.05.2020.

-Period of Employment : Fixed period of 3 months, commencing
from 01.07.2020 until 30.09.2020.

- “ In the event of any inconsistency between the provisions of the

supplemental letters of Offer and the Renewal of Contract, the
provisions in the Renewal of Contract dated 21.05.2020 shall
prevail and supersede such inconsistencies”

5. Acknowledgement And Confirmation signed by the 1st Claimant on

25.07.2020:

““ I understand that this is fixed term contract and my

employment will cease on 30th September 2020 or earlier in the
manner provided above “

16
2nd Claimant :

1. Letter of Offer as Storekeeper Supervisor dated 01.08.2017 .

- Period of Employment : One year renewable at Company’s
discretion, with effect from 14.08.2017 until 30.09.2018.

2. Letter of Extension of Contract dated 28.09.2018.

- Period of Employment : 12 months, with effect from 01.10.2018
until 30.09.2019.

3. Letter of Extension of Contract dated 06.08.2019.

-Period of Employment : 6 months, with effect from 01.10.2019
until 31.03.2020.

4. Letter of Extension of Contract dated 16.03.2020.

-Period of Employment : 3 months, with effect from 01.04.2020
until 30.06.2020.

5. Renewal of Contract dated 21.05.2020.

-Period of Employment : Fixed period of 3 months, commencing
from 01.07.2020 until 30.09.2020.

- “ In the event of any inconsistency between the provisions of the

supplemental letters of Offer and the Renewal of Contract, the
provisions in the Renewal of Contract dated 21.05.2020 shall
prevail and supersede such inconsistencies”

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 6. Acknowledgement And Confirmation signed by the 2nd Claimant on
02.07.2020:

““ I understand that this is fixed term contract and my

employment will cease on 30th September 2020 or earlier in the
manner provided above “

3rd Claimant :

1. Offer of Employment as Executive-Trucking dated 02.03.2017.

- Period of Employment : One year renewable fixed-term contract,
with effect from 15.03.2017 until 31.03.2018.

2. Letter of Offer as Executive-Logistics dated 28.07.2017.

- Period of Employment : 8 months, with effect from 01.08.2018
until 31.03.2018.

3. Letter of Extension of Contract dated 30.03.2018.

- Period of Employment : 12 months, with effect from 01.04.2018
until 31.03.2019.

4. Letter of Extension of Contract dated 29.03.2019.

-Period of Employment : 12 months, with effect from 01.04.2019
until 31.03.2020.

5. Renewal of Existing Contract dated 15.03.2020.

-Period of Employment : 3 months, with effect from 01.04.2020
until 30.06.2020.

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 6. Renewal of Contract dated 21.05.2020.
-Period of Employment : Fixed period of 3 months, commencing
from 01.07.2020 until 30.09.2020.

- “ In the event of any inconsistency between the provisions of the

supplemental letters of Offer and the Renewal of Contract, the
provisions in the Renewal of Contract dated 21.05.2020 shall
prevail and supersede such inconsistencies”

7. Acknowledgement And Confirmation signed by the 3rd Claimant on

02.07.2020:

““ I understand that this is fixed term contract and my

employment will cease on 30th September 2020 or earlier in the
manner provided above “

[43] It is very clear from the relevant Contract of Appointments,

Letters of Offer, Letters of Extension of Contract and the Letters of
Renewal of Contract that the following elements evinced the intention of
the parties that the nature of the Claimants’ employment were not on
permanent basis. The contents of the said Contracts states and can be
summarized as follows :

i. The Claimants’ job was on Fixed-term contract;

ii. Based on the terms of the Renewal of Contract dated

21.05.2020 and the Acknowledgement and Confirmation signed

19
 by the 2nd and 3rd Claimants on 02.07.2020 and signed by the
1st Claimant on 25.07.2020 , the contract shall expire on
30.09.2020 or earlier , and

iii. The period of employment of the Claimants was extended on a

fixed-term basis and that all other express and implied terms
and conditions of the earlier contract shall remain unchanged.
The said letters also specifically stated that, "the extension of
the contract period is subject to the operational requirement
and the Company’s discretion.”

iv. Vide a letter dated 20.08.2020, the Company had issued a

Notification of Contract Expiry to the Claimants to notify and
remind the Claimants that their contract of service with the
Company will not be extended further and would come to an
end on 26.08.2020.

[44] In the present case, the Company’s evidence that the contract
was a genuine fixed-term contract was more probable than the Claimant’s
allegations that it was not.

[45] This Court is satisfied that the contract in this present case was
a genuine fixed term contract. The intention of the parties were crystal clear
as it was for a fixed term contract, and not a permanent employment.

[46] In addition, this Court is also satisfied that the Company had
not and never issued any letter of converting the fixed-term contract to a
permanent employment.

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[47] Further, the final authority lies with the Company. The law
recognizes that a company has the right to organize its business in the
manner it considers best. It was held in Firex Sdn Bhd v Cik Ng Shoo
Waa [1990] 1 MELR 327 that:

“… it is well established that it is for management to decide the

strength of its staff which is considers necessary for efficiency in its
undertaking. The Court will not intervene unless it is shown that the
decision was capricious or without reason or was mala fide or was
actuated by victimization or unfair labour practice.”

This principle in the case of Firex Sdn Bhd v Cik Ng Shoo Waa [supra] is
in respect to the issue on retrenchment. This Court believe that the
principle that the final authority lies with the Company is also applicable in
this instant case. Thus, this Court is of the view that in the present case,
the Company was exercising its right by not extending the Claimants’
contract. The Company is entitled to decide on the non-renewal of the fixed
term contract when the Company no longer require the service of the
Claimants.

[48] This Court is convinced that the Claimants knew the fact of the
position being on fixed-term contract basis when they accepted the offer of
employment and that the Claimants were well aware that their employment
with the Company were on fixed-term basis at all times.

[49] Based on the said Contracts, the intention of the parties were
crystal clear that it was a contract on a fixed-term basis , and not a

21
permanent employment. This Court is satisfied that the Claimants
understood each and every written term and condition written in the said
Contracts. As such, there was no ambiguity, dispute or otherwise of the
parties’ intention that it was a fixed-term contract.

[50] This Court is also satisfied that the evidence in this case shows
that the terms and conditions of the employment was not on permanent
basis. The Claimants themselves accepted the employment as a fixed-term
contract. Upon accepting the offer, the Claimants also knew that they were
subjected to the agreed terms and conditions.

[51] Hence, it is obvious that the Claimants knew the fact of the
position being on fixed term contract when they accepted the offer of
employment and the Extension of Contract as well as when they accepted
and signed the Renewal of Contract dated 21.05.2020.

[52] In addition, the letter of Renewal of Contract of the Claimants

maintained the terms of the previous contract. It is very obvious that there
was no change to the terms of the Contract throughout the Claimants’
employment with the Company.

[53] In conclusion, the terms of the said Contracts were crystal clear
in that the Claimants were employed on fixed-term contract basis.

[54] This Court is convinced that it was a fixed term contract , such
contract had completed its natural course with the issuance of the letter
entitled “Letter of Expiry of Contract Employment” dated 20.08.2020 which

22
clearly spell the end of the Claimants’ tenure as the employers in the
Company effective on 26.08.2020.

WHETHER THERE WAS A DISMISSAL

[55] The Claimants contended that they were dismissed by the

Company and that the dismissal was without just cause or excuse.

[56] This Court wish to highlight the case of Zakiah Ishak v. Majlis
Daerah Hulu Selangor [2005] 4 CLJ 77, whereby the Court of Appeal
held that :

“The facts in the present case are no different from those in the case
of Gnanasundram v. Public Services Commission [1966] 1 LNS 219.
In that case the applicant was offered temporary employment by the
respondent on the following conditions:

2. This is (sic) offer is subject to the following conditions:

(d) That during the first year of the period of your appointment,
your services would be terminable at any time with one
month’s notice or one month’s salary plus cost of living
allowance in lieu, and without any reason being given. You
would also be free to relinquish your appointment by giving
one month’s notice or one month’s salary in lieu plus cost of
living allowance. During the rest of your period of
appointment, the appropriate notice required for both parties
would be three months or one month’s salary in lieu plus
cost of living allowance.

3. The appointment offered is temporary.

23
 The applicant in that case challenged the termination of his
employment made pursuant to the said conditions. Raja Azlan
Shah J (as HRH then was) in dismissing the application
observed:

Without deciding whether the applicant holds office during

pleasure, I am clearly of the opinion that article 135(2) does
not apply. The applicant was never dismissed from
service. Dismissal pre-supposes some disciplinary
proceeding against him whereby he is found guilty of
indiscipline and misconduct under the Public Officers
(Conduct and Discipline) Regulations 1956. This is not the
present position here. This is purely a case of a contract
being terminated under one of its clauses. To say that the
applicant was dismissed would be to use that word in quite a
different sense from any in which, as far as I can see, it has
hitherto been used.” [Emphasis added]

[57] This Court is of the view that the issue of whether or not there
was a dismissal is irrelevant because the issue to be decided firstly,
whether it was a genuine fixed-term contract of employment.

[58] In applying the law mentioned above, in the present case, the
said Contracts i.e the Claimants’ letter of appointment as well as the letter
of Renewal for Contract had specific and definite date that stated the
beginning and the end of the contract.

[59] It is expressly stipulated that the said contracts has its expiry
date. Based on the Renewal of Contract dated 21.05.2020, the expiry date
was on 30.09.2020 and that renewal is not automatic, rather, subject to the
terms of renewal. In other words, there was no guarantee that the

24
Claimants’ contract will be automatically renewed after the expiry of the
employment Contract.

[60] Therefore, it is a fact that the Claimants’ contract had expired

as per the terms of the contract, and there was no dismissal. This Court is
convinced that in the present case, the Claimants’ tenure with the
Company had expired .

[61] It is safe to conclude that the Claimants’ service with the

Company was not extended ; it was not a dismissal as contended by the
Claimants. Hence, the issue of dismissal does not arise in the present
case.

[62] It was held in M. Vasagam Muthusamy v Kesatuan Pekerja-

Pekerja Resorts World, Pahang & Anor [2003] 5 CLJ 448; [2006] 1 MLJ
206 that :

“ If there is a finding that there was in fact no dismissal having taken

place, then the award must necessarily be in favour of the employer
however dissatisfied the workmen is over his relationship with his
employer over his service contract..”

[63] In short, the conclusions are these:

a) Based on the relevant documents and

testimonies given during the proceeding of this
case, it is clear that the Claimants’ service was
based on a genuine Fixed Term Contract;

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 b) The Claimants has read and duly signed the
acceptance letter and they understood that the
Contract was on fixed-term basis;

c) Based on the Renewal of Contract dated

21.05.2020 which is in fact the final contract
signed by the 1st Claimant on 25.07.2020 and
were signed by the 2nd, and 3rd Claimants on
02.07.2020 , the Claimants duly acknowledged
and confirmed that “ I understand that this is fixed
term contract and my employment will cease on
30th September 2020 or earlier in the manner
provided above “ ;

d) The Company decided not to further extend or

renew their contract and they were granted an
early release whereby their last working day shall
be on the 26th August 2020 ; and

e) That their fixed-term contract had expired.

[64] Since, this Court has decided that this was a genuine case of a
fixed-termed contract, it is therefore unnecessary to go on to consider the
other two issues that have been laid out earlier in this Award.

LEGITIMATE EXPECTATION

[65] In Gerald Blaise Ryan v See Hua Markerting (Sabah) Sdn

Bhd [2013] 3 ILR 307, the learned Chairman stated the following on the
issue of legitimate expectation :

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 “[30] the Doctrine of legitimate expectation which had its origin
in public law has been extended to and impacted private law,
particularly in the fields of company law and employment law
where the doctrine is used to protect employment or positions…

[31] From a general perspective, the following are some of the

principle that would justify the application of the doctrine:

- the promise or representation made by the employer underlying

the expectation must be clear, unambiguous and not subject to
qualification;

- the expectation must be reasonable; the representation must

have been induced by the decision maker; and

- the representation must be one that it was competent for the

decision maker to make… “ [ emphasis added]

[66] In Gerald Blaise Ryan and See Hua Marketing (Sabah) Sdn
Bhd [supra], an employee, a sub-editor for the Borneo Post, was hired on
a fixed-term contract of one year. The contract was extended twice, each
time for a further one year. At the end of the 3rd year, the employee was not
offered a new or extended contract. He filed a claim for reinstatement.

The Industrial Court examined the words used in all three contracts which
included the following clause: "This appointment shall be for a term of one
year, and unless otherwise specified, the contract of service will

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automatically expire thereafter if the stipulated term of service is not further
extended.”

The employee argued that he had a legitimate expectation that his

contracts would continue to be renewed. The Court responded by
examining the doctrine of legitimate expectation. The burden to prove that
the employee has a reasonable or legitimate expectation that the
employment contract would be renewed lies on the employee. It was held
by the Industrial Court that the employee's fixed-term contract was genuine
and that he had no legitimate expectation that it would be renewed and
therefore there was no dismissal.

[67] In the case of Zakiah Ishak v. Majlis Daerah Hulu Selangor

(supra), the Court of Appeal held that :

“Secondly it was contended on her behalf that the termination was

in breach of her legitimate expectation that she could continue in
her employment for the said period. In law for legitimate
expectation to arise there must be evidence of a promise or
undertaking made by the respondent to that effect. We find no
such evidence before the court. On that premise we find that her
claim for breach of legitimate expectation is wholly unsustainable.”

[68] Applying the above principle into the present case, was there a
clear and unambiguous promise or representation by the Company that
Claimants’ contract would be further extended? The answer is, there is no
such evidence before this Court. Hence, it was not a legitimate expectation
to expect the Company to automatically renew/extend their contract.

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[69] In the instant case, there was no evidence that there was any
promise and/or representation by the Company that the Claimants were on
permanent employment. In fact it is very clear from the letter of
acknowledgement and confirmation signed by the Claimants that “ this is a
fixed-term contract and my employment will cease on 30th September 2020
or earlier in the manner provided above. As such, it is obvious that there
was a fixed duration of the employment and the contract had naturally
ended due to the effluxion of time.

[70] The Claimants were well aware and had accepted the contract
that their job was on a fixed-term basis. As such, the Claimants were not
entitled to complain that they purportedly had ‘legitimate expectation’ that
they would be ‘converted’ to be a permanent employee and/or the contract
would be automatically extended and they could purportedly work as long
as they wished.

[71] In the case of Universiti Teknikal Malaysia Melaka v. Prof

Madya Md Noah Jamal [2014] 4 ILR 473, the Court of Appeal held that:

“Pertamanya, kami bersetuju dengan penghujahan peguam

perayu bahawa responden tidak mempunyai apa-apa ‘legitimate
expectation’ bahawa perkhidmatannya sebagai Timbalan Dekan
akan terus kekal sehingga tamat tempoh kontraknya dengan
universiti sebagai Profesor DS35 kerana responden sedar akan
syarat bahawa pelantikannya sebagai Timbalan Dekan itu boleh
ditamatkan pada bila-bila masa sebelum tamat tempoh kontraknya
dengan universiti. Hakikat ini dinyatakan dengan jelas di dalam

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 surat pelantikannya sebagai Timbalan Dekan yang bertarikh 15
Disember 2007. Peguam perayu telah merujuk kepada kes
Gnanasundram v. Public Services Commission [1966] 1 LNS 219.
Dalam kes itu mahkamah telah mengatakan bahawa pemohon
dalam kes tersebut telah menerima syarat-syarat kontrak yang
dibuatnya dengan pihak Kerajaan. Oleh itu, pemohon adalah
terikat dengan syarat-syarat tersebut sebagaimana Kerajaan
terikat dengannya. Begitulah juga dengan keadaan di dalam kes di
hadapan kami sekarang. Responden telah menerima pelantikan
sebagai Timbalan Dekan dengan menyedari bahawa pelantikan
ke jawatan tersebut boleh ditamatkan oleh Naib Canselor pada
bila-bila masa.” [Emphasis added]

[72] Applying the above principle into the present case, this Court is
of the view that a legitimate expectation by the Claimants, if any, that the
contract will be renewed and/or further extended and/or the fixed-term
contract basis would be converted into a permanent employment by the
Company could not be upheld based on the said Contracts produced
before this Court.

[73] As mentioned earlier, there was no ambiguity, dispute or

otherwise of the parties’ intention that it was for a fixed term. Referring to
Dismissal from Employment and the Remedies, Dr. Ashgar Ali Ali
Mohamad, Lexis Nexis Publication 2007, it was stated at page 14:

“ The ‘right to work’ and ‘right in the work’ are two different concepts.
The former deals with the individual right to be employed, which is in

30
 conformity with Article 23 of the Universal Declaration of Human
Rights 1948, which provides that the ‘right to work’ is the natural right
of every man to obtain employment, while the latter implies
‘proprietary right’ in employment. At common law, there is no legally
enforceable ‘right to work’. The House of Lords in Allen v Flood
[1898] AC 1 (HL) observed : A man has no right to be employed by
any particular employer, and has no right to any particular
employment if it depends on the will of another “

[74] In addition, this Court is of the opinion that when the Claimants
signed on the said Contracts respectively, they understood that their
contract was on a fixed-term basis and was subject to renewal and there
was no automatic renewal.

[75] In fact , the Claimants willingly accepted it without having

anyone to force them to sign and accept the offer. They read and
understood the written terms and conditions in the said Contracts.

[76] As mentioned earlier, it was acknowledged and confirmed by

the Claimants on the Renewal of Contract dated 21.05.2020 that “ I
understand that this is a fixed term contract, and my employment will cease
on 30th September 2020 or earlier in the manner provided above “

[77] Therefore, this Court is satisfied that the Claimants knew of the
essential term of their employment, namely that their position as the
employer of the Company was on a fixed-term contract basis.

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[78] In order for the Claimants to be successful in their claims, they
needs to prove that their Contract with the Company was not a fixed-term
contract but a regular contract, or that the Claimants had legitimate
expectation that the Contract was not a genuine fixed-term Contract. In this
case, this Court is satisfied that the Claimants failed to do so.

J. CONCLUSION

[79] Pursuant to section 30(5) of the IRA1967 and guided by the

principles of equity, good conscience and substantial merits of the case
without regard to technicalities and legal forms and after having considered
the totality of the evidence adduced, this Court is of the view that the
Company had made out on a balance of probabilities that it was a genuine
case of a fixed-term contract that had completed its natural course.

[80] As this Court finds that the employment of the Claimants were a
case of a genuine fixed-term contract, the issue of whether the Claimants
were dismissed with just cause or excuse does not arise.

[81] It was held in M. Vasagam Muthusamy v Kesatuan Pekerja-

Pekerja Resorts World, Pahang & Anor [supra] that :

“the Court need not to have to go into the question whether there was
a dismissal with just cause or excuse if the Fixed Term Contract is a
genuine one. Once it is established that it is a fixed term contract, the
dissolution of the contract upon reaching the expiry date of the fixed
term would clearly spell the end of the worker’s tenure”.

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[82] This Court is convinced that this is not a case of unlawful
dismissal against the Claimants. This is merely a non-renewal of a fixed-
term contract and that the non-renewal of the Claimants’ contract were
carried out in accordance with fair labour practice. In the conventional
sense, the Company did not dismiss the Claimants. The Claimants’
contract with the Company had rather expired.

[83] In Mohamed Mohamed Tolba Said v Marsha Sdn Bhd [2018]

ILJU 142 it was held that :

“A fixed term contract is one which has a definite beginning and a

definite end. In common law, when a contract for a fixed term expires,
it terminates of itself: it has not been “terminated” by either party. In
the conventional sense, there is neither dismissal nor resignation.”

[84] In the circumstances, the Claimants’ claim ( for reinstatement /

compensation in lieu of reinstatement and back wages ) are hereby
dismissed.

[85] It must also be noted that the Claimants were all paid a benefits
as per Labour (Termination and Layoff Benefits) (Sarawak) Rules 2008 in
their August 2020 pay. In addition, they were paid in lieu of annual leave
and payment in lieu notice period for early release as well as payment of
unemployment insurance scheme from PERKESO.

[86] The 1st Claimant and the 2nd Claimant were duly paid a total of
RM 70,716.08 and RM 6,690.04 respectively. The 3rd Claimant was paid a
total of RM 18,506.80 (inclusive of insurance of RM 8,000.00) . The 1st and

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2nd Claimants also received unemployment insurance scheme from
PERKESO of which they could not recall the amount.

[87] This Court verily believe that this Award is just and appropriate
in the light of the particular facts of the present case and guided by the
principles of equity, good conscience and substantial merits of this case
without regard to technicalities and legal forms.

HANDED DOWN AND DATED 23 FEBRUARY 2023

-signed-

( YANG ARIF DATUK INDRA BIN HAJI AYUB )

CHAIRMAN

INDUSTRIAL COURT MALAYSIA SABAH

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