Not a Workman: Industrial Court Dismisses a Dismissal Claim by a Casual, Job-to-Job Worker

Case Background & Strategy

Only a workman employed under a contract of service can bring an unfair dismissal claim under the Industrial Relations Act 1967, and the claimant must prove that relationship first. In Tan Heng Kit v Trio Mantap Sdn Bhd [2022] ILJU 110, our partner Khoo Ai Theng acted for the company, Trio Mantap Sdn Bhd, and showed that the claimant had worked only on a casual, job-to-job basis. The Industrial Court dismissed his claim.

Case at a Glance

The Problem: A Claim Built on a Job That Was Never Offered

The claimant, then 68, approached our client, Trio Mantap Sdn Bhd, asking for work. Our client agreed to give him tasks on a job-to-job basis whenever they were needed, paid at a daily rate, and he worked a handful of days in late February and early March 2020, for which he was paid casual wages. No letter of appointment was ever issued. The claimant later alleged that he had been hired on probation as an insurance consultant at a monthly salary, that his duties included English coaching for the company’s managing director, and that he had been demoted and then dismissed.

Our Strategy: Put the Claimant to Proof of Employment

Because the dismissal was disputed, the burden was on the claimant to prove that he was employed under a contract of service. Through the company’s witness and documents, we showed that there was no letter of offer, no confirmation, a daily rate of pay and casual wage payments, and the claimant admitted under cross-examination that he had no letter of offer or confirmation. The company search showed that the person he described as the managing director had no connection with the company. We also highlighted that the claimant had pleaded wrongful dismissal but testified that he had been constructively dismissed, and that he admitted he did not lodge his complaint within 60 days.

The Industrial Court’s Decision

The Industrial Court held that the claimant had failed to prove on the balance of probabilities that he was a workman within section 2 of the Industrial Relations Act 1967, and that there was no contract of service between him and the company. It found the arrangement casual and ad hoc, accepted that the private tutoring was a separate job with a person unrelated to the company, and declined to rely on WhatsApp messages that had been marked for identification but never proved as exhibits and were incomplete.

The court also held that the claimant was bound by his pleadings and could not run an unpleaded case of constructive dismissal, and it recorded his admission that he had not lodged his complaint within 60 days. Because he was not a workman, the question of dismissal did not arise, and the claim was dismissed.

The Law in Brief: Who Is a Workman?

Section 2 of the Industrial Relations Act 1967 defines a workman as a person employed by an employer under a contract of employment to work for hire or reward. The Federal Court has held that this means a contract of service, so an independent contractor engaged under a contract for services is not a workman and cannot bring a dismissal claim. Whether a person is a workman is a mixed question of fact and law, decided by looking at the whole relationship and the conduct of the parties.

A claimant must also make the representation to the Director General for Industrial Relations within 60 days of the dismissal, and, as in any court, parties in the Industrial Court are bound by their pleadings.

Key Takeaways

• The claimant must prove that he was a workman under a contract of service before the court considers whether he was dismissed.
• Casual, job-to-job work paid at a daily rate may not amount to employment.
• Documents and company searches can rebut claims about who the employer is.
• WhatsApp messages must be properly proved; documents marked only for identification cannot be relied on.
• A claim must be pleaded properly; it cannot change from wrongful to constructive dismissal at trial.

Frequently Asked Questions

Related reading: Is a director an employee? Unfair dismissal claims in Malaysia; What unfair dismissal means in Malaysia.

Facing a dismissal claim from someone who was never your employee? Book a consultation with NZSK so we can review your records and advise on your defence. Learn more about our employment law practice.

Messrs Ng, Zainurul, Seke & Khoo (NZSK) is a Malaysian law firm with offices in Mont Kiara, Kuala Lumpur and Puchong, Selangor. Partner Khoo Ai Theng, an Advocate & Solicitor of the High Court of Malaya since 2014, acts for employers and employees in Industrial Court and High Court employment disputes and is a co-author of Malaysian Employment & Industrial Relations Law.