Aecor Innovation Sdn Bhd v 1. ) Minhaz (BA-16-59-11/2024)

All 7 appeals were heard together as they involve the same issues. On 8.11.2024, the Assistant Director of Manpower (ADM) allowed all the Respondents’ claim for wages.

After careful consideration of the records of appeal and the submissions, this Court decided to dismiss all the appeals. The following are the reasons for that decision. S/N g7Sl1NiVrUuJ1whdfu80hQ Proceedings before the ADM

There were 7 claims made by the Respondents. All of them concerned the payment of wages and claims for overtime. The ADM directed that all the claims be heard together and gave directions for the conduct of the inquiry into their claims.

The Respondents are migrant workers who were brought into the country by the Appellant on various dates. All the Respondents were given a contract of employment wherein the terms included that they would be paid the basic salary of RM1,500.00, have a day off every week, have 8 days annual leave and that the Appellant would ensure they had work permits and accommodation.

The Appellant did not deny any of this. Instead, they maintained that they were not liable to pay the Respondents a salary upon arrival in Malaysia. Salaries would only be paid when the Respondents worked and were subject to deductions. Some of the Respondents had run away from the Appellant. The ADM’s decision

The ADM made the following findings –

the Appellant gave all the Respondents a contract of employment; S/N g7Sl1NiVrUuJ1whdfu80hQ

(ii) the Appellant paid some of the Respondents their arrears salary either by cash or through online payments; and

(iii) all the Respondents were now employed by a new employer.

The ADM asked herself the following questions which she then answered in the affirmative –

could one Respondent give evidence for the other Respondents under his claim;

(ii) were the Respondents entitled to claim their arrears salaries and overtime claims from the date of arrival to the end of their employment contract on 27.9.2023; and

(iii) were the Respondents entitled to claim salaries till the end of their contract.

She then allowed all the Respondents’ claim. Principles of law

Section 77 Employment Act 1955 (Act 265) provides that the procedure for an appeal to the High Court is the same procedure as an appeal from the Sessions Court. S/N g7Sl1NiVrUuJ1whdfu80hQ

The general principles of law in respect of the appellate jurisdiction of the High Court hearing appeals from the Subordinate Court is as pronounced in China Airlines Ltd v. Maltran Air Corp Sdn Bhd (formerly known as Maltran Air Services Corp Sdn Bhd and another appeal [1996] 2 MLJ 517 at 527 and UMW Motor Sdn Bhd & Anor v. Allan Chong Teck Hin [2021] 3 MLJ 107 at 117.

In Ng Hoo Kui & Anor. v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67, Zabariah Yusof FCJ discussed the principles regarding appellate intervention in appeals in Malaysia by reference to the position of law in United Kingdom and Singapore.

Her Ladyship referred to Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra [2018] 2 MLJ 177; [2018] 2 CLJ 641 wherein Azahar Mohamed FCJ held at 212 – “The law is clear and well-settled in that the principle on which an appellate court could interfere with findings of fact by the trial court is ‘the plainly wrong test’ principle; see the Federal Court in Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1; [2004] 4 CLJ 309; UEM Group Bhd (previously known as United Engineers (M) Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2018] supp MLJ 363; [2010] 9 CLJ 785, In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911; and Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441; [2015] 2 CLJ 453) S/N g7Sl1NiVrUuJ1whdfu80hQ (see Director of Forest Sarawak & Ors v Nicholas Mujah ak Ason & Ors [2020] 1 MLJ 612; [2020] 2 CLJ 1 at paras [73]–[74] and Jeli Anak Naga & 4 Others v Tung Huat Pelita Niah Plantation & Ors and Another Appeal [2019] MLJU 1311; [2020] 1 CLJ 449 at para [49])”

Guided by these principles, this Court examine the proses of evaluation of evidence and the application of law by the ADM in arriving at her decision regarding the Respondents’ claim. The Appellant’s complaint

In their memorandum of appeal, the Appellant complains that the ADM erred in fact and law. Their complaints can be summarised as follows; that the ADM failed to consider –

the terms of the employment contract between the parties regarding the payment of salaries to the

(ii) and weigh the evidence adduced by the witnesses who testified on behalf of the Respondents and had no knowledge of their claim; and

(iii) the Appellant’s evidence and documents. S/N g7Sl1NiVrUuJ1whdfu80hQ Evaluation and findings Section 72 Act 265

From a perusal of the ADM’s grounds of decision, it is clear that she was mindful of the provisions of law that govern the hearing before her.

In deciding that the issue of whether all 96 Respondents would have to give evidence, the ADM was guided by section 72 Act 265 which reads – “Where it appears to the Director General in any proceedings under this Part that there are more employees than one having a common cause for complaint against the same employer or person liable, it shall not be necessary for each such employee to make a separate complaint under this Part, but the Director General may, if he thinks fit permit one or more of them to make a complaint and to attend and act on behalf of and generally to represent the other, and the Director General may proceed to a decision on the joint complaint or complaints of each and all such employees; Provided that, where the Director General is of opinion that the interests of the employer or person liable are likely to be prejudiced by the non-attendance of any employee, he shall require the personal attendance of such employee.”

The law is crystal clear and the ADM was correct not to require all the Respondents to give evidence. The Appellant’s reliance S/N g7Sl1NiVrUuJ1whdfu80hQ of non-employment cases to substantiate their arguments is unfounded. This Court finds their complaint completely without merit. Terms of the contract of employment

The contract of employment for each of the Respondent is identical, simple and straightforward. In particular –

Clause 1 provides that the duration of the contract “shall be for a period of three (3) years commencing on the day of arrival of the Worker in Malaysia until such time this Contract of Employment is terminated …”;

(ii) Clause 3.1 provides – “The Worker shall receive a basic wage of RM1,500.00 (excluding allowances and overtime). …” and

(iii) Clause 11 provides – “The Employer is entitled to make deduction for not more than 50 percent (50%) in a month from the Worker’s wages in the event of any monetary advance in accordance with the labour laws of Malaysia.”

In response, the Appellant argued that the payment of salary was conditional on the Respondents working. Ng Yeen Seen the Appellant’s director gave evidence that the Respondents were unable to work prior to the issuance of their work permit and that some of them refused to work. S/N g7Sl1NiVrUuJ1whdfu80hQ

The ADM found that the Appellant was unable to substantiate their evidence because they failed to furnish details of the work assigned to the Respondents nor the advances made to them who were not given any work at all. Further the ADM found that there was no evidence as to who the recalcitrant workers were and whether there was any inquiry held

On this issue, the ADM held – “Prinsip asas penggajian pekerja asing di Malaysia ditetapkan melalui kuota yang diluluskan oleh kerajaan berdasarkan permohon majikan. Permohonan majikan pula bersandarkan bilangan sebenar yang layak dituntut oleh majikan, mengikut pekerjaan yang telahpun disediakan oleh majikan sama ada di tempat pihak ketiga (kontrak majikan dengan pihak ketiga) atau pekerjaan di tempat majikan sendiri. Kerajaan tidak menyediakan kemudahan permohonan kemasukan pekerja asing supaya majikan boleh menjadikan mereka ‘stok pekerja sedia ada’ yang boleh digunakan pada bila-bila masa yang diperlukan sahaja dan membayar mereka gaji untuk hari-hari mereka dipanggil bekerrja sahaja. Tanggapan ini adalah salah sama sekali.”

The terms of the contract are explicit; the Respondents will get paid from the date of their arrival in Malaysia. The Respondents were not to be treated as stock and paid as and when they worked. S/N g7Sl1NiVrUuJ1whdfu80hQ

The Appellant’s arguments that to put the Respondents to work prior to the issuance of the work permit, their refusal to work and the deductions for advances are all afterthought purely to defeat the legitimate claim of the Respondents. The Appellant’s evidence

The Appellant complained that the ADM lacked judicial appreciation of the evidence and documents adduced by their sole witness which warrants appellate intervention.

The Appellant complained the ADM disregarded the Excel sheet setting out the attendance list of the Respondents at their respective work sites at either Urusan Teknologi Wawasan Sdn Bhd or KLIA and the bank statements as proof of the advances made to the Respondents. The Appellant also took issue with the documents produced by the Respondents in regard to the calculation of their claim.

This Court finds no deficiency in the consideration, weighing and appreciation of the evidence produced before the ADM. She held that the Appellant’s evidence of work done was irrelevant in the circumstances of this appeal given that the Respondents were to be paid a basic salary.

This Court accepts the Respondents’ arguments that the Excel Sheet was not a source document and contained deductions that were contrary to Act 265. The person who prepared the S/N g7Sl1NiVrUuJ1whdfu80hQ S/N g7Sl1NiVrUuJ1whdfu80hQ For the Appellant Chan Hoo Yan Messrs Gan & Zul For the Respondent Joachim Xavier Sahain Nara Phutucheary Messrs Xavier & Koh Partnership S/N g7Sl1NiVrUuJ1whdfu80hQ