Labour Law- Employee under Employment Act case notes PDF

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Case notes on definition of Employee under Employment Act...

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Labour Law Notes by Tong Xi Xian

Employment Act 1955 Milan Auto Sdn Bhd v Wong Seh Yen [1994] 2 MLJ 135 Facts The claimant was terminated without notice by the company, his monthly salary before termination was RM600. Claimant contended the company has violated Section 14(1) of the Employment Act 1955 as no enquiry was held before dismissal so the dismissal was without just cause or excuse. The chairman of the Industrial Court held that the claimant, being an employee within the meaning of the Act, could only be dismissed after due enquiry. The company applied for an order of certiorari to quash the award of the Industrial Court. Held The court dismissed the application, affirming the claimant was an employee under the Act and the provisions of the Act apply to him, as mechanic whose salary is RM600 is an employee according to paragraph (1), First Schedule, Employment Act 1955. Due inquiry must be held before dismissal.

Colgate Palmolive Sdn Bhd v Cheong Foo Weng [2001] MLJU 765 Facts The respondents receiving a salary of more than RM1,250 at the material time. The respondents were receiving overtime payments which according to the Collective Agreement between the appellant and the National Union of Petroleum and Chemical Industry Workers, who represent the respondents, the ceiling of the overtime payment is RM1325. The respondents did not at material time dispute the basis of the overtime payment before they instituted a claim against appellant. Respondents contend that they should have been paid overtime wages in accordance with Section 60A(3) of the Employment Act 1955. Director General of Labour allowed such claim. Appellant appealed. Held The court allowed the appeal with cost. The respondents are not engaged in manual labour within the 2(1) of First Schedule of Employment Act 1955. A distinction must be drawn between manual labour and manual work. Manual labour is manual work which requires toil and effort. A person is not deemed to be “engaged in manual labour” if his job functions are primarily and substantially dependent on his acquired skill, knowledge or experience but with incidental manual work. ‘Manual labour’ involves physical exertion as opposed to mental/intellectual effort. Thus it is not manual labour if ‘the real labour involved is labour of the brain and intelligence’.The test to determine whether or not a person is ‘engaged in manual labour’ is: ‘what is the substantial/dominant purpose of the employment, to the exclusion of the matters which are incidental or accessory to the employment’. It is therefore essential to determine whether the work in question is purely physical in nature, as opposed to work which has a physical/manual content but which is really dependent upon acquired skill, knowledge or experience.

Leighton Contractors (M) Sdn Bhd v Gnanapragasam a/l Arukiam & Ors [2016] 4 ILJ 3 Fact

Labour Law Notes by Tong Xi Xian

The respondents lodged a complaint to the Director General of Labour that they were paid to work as a ‘shunter/train assistant’ for eight hours and made to work for nine hours by their employer. The respondents claimed for overtime payment under section 60A(3) of the Employment Act 1955. The Director General of Labour held that the respondents were employees within the definition of the first schedule of the Act and therefore entitled to a claim of overtime payment. The appellant filed the present appeal. Held The court dismissing the appeal with costs. Although respondents had to exercise some judgment when indicating the signals to move or stop to the train assistant, or the fact that they were required to communicate with the train driver during shunting movements, the substantial or dominant purpose of their work was spent engaged in manual work, a large portion of which involved shunting movements. Such works could not be reasonably classified as anything other than manual labour.

Bond Electrical (KL) Sdn Bhd Lwn Abu Bakar Bin Chik & Lain-lain [2002] 4 MLJ 139 Facts The respondents who worked as electricians claims for a sum for termination of contract without notice under section 12(2)(a) of the Employment Act 1955. The Dungun Labor Officer who had awarded RM1,600 to each respondent under section 69 of Employment Act 1955. The appellant appealed. Held The appeal was dismissed with cost. Electricians works involved wiring, installing and repairing electrical-related equipment. There is no denying that an electrician is knowledgeable in electrical matters, but his skills are simply carrying out his duties as an electrician which usually involves only manual labour. The correct approach to be taken in deciding if someone is involved in manual labor and subsequently an employee under the Act is a flexible and not an intransigent one. The question of whether a person making a claim was an employee or not under the Act was one of mixed fact and law. Therefore, the labor officer had the discretion to decide based on existing facts in a given case.

Rajasekar K Suppiah & Ors v. Malaysian Airline System Berhad & Anor [2013] 4 ILR 149 Facts The complainants employed by first respondent, which is an aviation company which provides maintenance services of aircrafts at the Kuala Lumpur International Airport, as non-executive staff. The complainants contended that the new shift roster has breached Articles 16(1)(b) and 72(1) of the Collective Agreement entered into between the parties. The complainants are Aircraft Engineers, Aircraft Technicians and Junior Technicians who are engaged in the operation and maintenance of mechanically propelled vehicles which are operated for the transport of passengers, etc. Held

Labour Law Notes by Tong Xi Xian

The complainants are covered by the Employment Act 1955. They fall within the definition of "employee" in s. 2(1), Employment Act 1955 and in particular para. 2(2), First Schedule, Employment Act 1955.

Ekajaya (M) Sdn Bhd v. Ahmad Mahad & Ors Facts The respondents were lorry drivers who claimed to be working for the appellant company. They were tasked by the company to drive lorry tankers carrying cement. They were terminated by company of reason that the price of diesel went up and customer refused to increase the transport rate so the company could not sustain the business. The respondents filed their claims with the Director General of Labour under section 69 of the Employment Act 1955 for their termination benefits. Held As the said worker is employed in the operation of any mechanically propelled vehicle operated for the transport of goods, in simple language engaged as a lorry driver. Although they are paid more than RM1,500 per month, they are still under protection of Employment Act 1955. This may be regarded as a statutory extension of the protection afforded under the Employment Act 1955 to certain categories of manual workers and those employed in the operation of lorries for the purpose of carriage of goods.

Colgate Palmolive Sdn Bhd v Cheong Foo Weng [2001] MLJU 765 The respondents are involved in partly supervising function and partly manual works. Held The court allowed the appeal with cost. It is necessary for the respondents relying on this exception to prove the following, that they were "supervisors", as supervisors they were "supervising or overseeing other employees labour", and they supervised persons engaged in manual labour "in and throughout the performance of their (the manual labourers) work". The court interpret para 2(3) of first schedule of Employment Act 1955 as supervisors who are physically present at all time during the performance of the job functions, and the supervision must be of employees, as opposed to general supervision and administrative functions, thus limiting the supervision only on the man power but not other like machines, method, materials.

Ong Siew Giek @ Cheh Siew Giek v International Footwear (PG) Sdn Bhd [2005] 2 MLJ 96 Facts The complainant was employed by the defendant as a senior production supervisor, after termination, she claimed for termination benefits. The labour court dismissed the complainant's claim on the basis that she was not a manual worker as defined under the Employment Act 1955 and did not fall under para 2(3) of Schedule 1 of Employment Act 1955, as she had an assistant and line leaders under her, and she also performed other duties unrelated to supervising. The complainant appealed. The complainant other than supervising and at times teaching the manual workers, she also had to approve their leave. When the machine could not function, she would repair it. She helped out during emergencies. At times she even attended meetings.

Labour Law Notes by Tong Xi Xian

Held Appeal allowed with cost. The court held a restrictive interpretation ought not to be given to the words 'supervises … employees … throughout the performance of their works', and the words 'in and throughout the performance of their work' cannot be restricted to refer only to work performance. Where in Colgate Palmolive (M) Sdn Bhd v Cheong Foo Weng, it was held that the supervisor 'must be physically present at all times when the work is done'. So long as the supervisor takes responsibility for the act of his assistant supervisors down the line and so long as he performs for the benefit of the workers, he must fall within para 2(3) of the First Schedule to Employment Act 1955.

Chin Kim Chang v Mariadass & Anor [1978] 1 MLJ 138 Facts The respondents were husband and wife, employed as a cook and amah at a guest-house for the appellant firm, Mr. Davies is the financial controller of the firm. The respondents first served as domestic servants of Davies, after Mr. Davies’ departure from the guest-house, the respondents continue served as a cook and amah, but the occupants became transient guests, although they are also employees of the firm but they have to pay for the food and drinks. Therefore, they become labourers in the finding of Assistant Commissioner of Labour, and the respondents' claim was allowed by the commissioner in full for overtime and for pay in lieu of leave which the respondents said they were entitled to but were not given. The appellant appealed. Held Appeal allowed. As the guest is the employees of the firm, it did not make the guest-house a public dwelling in the sense that it is for the use of the general public. The work the respondents do is the work of domestics....