ANG BEE LING v Ng Eng Kian T/a Nek & Associates (BA-16-13-04/2023)

It is undisputed that the appellant was employed to perform audit work at the branch starting from 01 September 2019. [4] Initially, the appellant performed audit work at the branch located at No. 88M, Lebuh Turi, Off Persiaran Raja Muda Musa, Taman Chi Liung, 41200 Klang, Selangor (“88M Address”) and later, in 2021, moved to Lot 42020-3-1, 3rd Floor, Wisma WCC Bayu, Jalan Unjur 7, Taman Bayu Perdana, 41200 Klang, Selangor (“Lot 42020-3-1 Address”) until the branch was closed. At the time of the branch closure, there were a total of 16 employees excluding the branch manager named Ng Mee Ting. During the appellant’s tenure at the branch, the branch manager was Ng Mee Ting. [5] Due to issues that arose with Ng Mee Ting, the branch was closed on 23.8.2022 in accordance with MIA provisions. As a result, a Notice to Return to the Head Office was issued by the respondent, instructing the appellant to report to the head office for duty. In the notice, the respondent clearly stated the following: “I realise that this may be an unsettling time for you and would like to remind you that support from Head Office manager and colleagues is available to you. If you have any queries about this matter, kindly contact Miss Goh at 016-690 2468 or Ing Ing at 016-358 3686” [6] However, no response was received from the appellant. Consequently, on 24.8.2022, the respondent issued a letter of explanation to the appellant. Subsequently, on 25.8.2022, the respondent received a letter signed by the appellant and 15 others, including Ng Mee Ting, referring to the notice to return to the head office. Despite this, the appellant still did not report to the head office. [7] On 25.8.2022, the appellant, along with other colleagues, responded to NEK & Associates to object to the Transfer Order and provided reasons for their disagreement. [8] On 2.9.2022, the respondent issued a Domestic Inquiry Notice to the appellant to attend the inquiry on 6.9.2022 at 3 p.m. The appellant requested that the inquiry be postponed through a WhatsApp message, but this request was not granted. [9] The appellant did not attend the Domestic Inquiry on 6.9.2022. Instead, the appellant, through the law firm Aaron KC NG & Partners, sent a letter titled “Notice of Demand for Constructive Dismissal” dated 6.9.2022. A response was provided through the respondent's solicitor’s letter dated 21.9.2022, asserting that the appellant was an employee of the respondent. Among other things, it was stated that the decision of the Domestic Inquiry was that the appellant had abandoned their duties on 23.8.2022 and effectively terminated their employment on the same date. The appellant was entitled to salary and/or other benefits up to that date. Since the appellant had abandoned their duties without providing the required notice, they were required to pay the respondent an amount equivalent to one (1) month's salary in lieu of notice. [10] On 23.9.2022, the respondent informed the appellant that the decision of the Domestic Inquiry was that the appellant had abandoned their duties without providing the required notice, and as a substitute, they were to pay NEK & Associates an amount equivalent to one month’s salary. [11] The appellant failed to contact the respondent to settle the payment in lieu of notice but, along with fifteen (15) other former employees. The appellant then made a claim against the respondent with the Director-General of Labour. After 23.9.2022, the respondent received four Defendants' Summonses (including from the appellant), all dated 20.9.2022, under section 70(c) of the Employment Act 1955, which included claims by 16 former branch employees, including the appellant. However, the claims by all sixteen (16) former branch employees, including the appellant, were withdrawn on 7.10.2022. Analysis and Findings [12] In this appeal, the appellant raised the following issues:

The Labour Office does not have the jurisdiction to investigate this dispute;

The appellant is not actually an employee of NEK &

The appellant has the right to refuse the Transfer Order as it is a mala fide action;

The appellant did not violate section 15(2) of the Employment

The respondent terminated the appellant under section 14 of the Employment Act 1955;

The amount awarded is incorrect because it does not take into account the appellant's unused annual leave; and

The Director of the Labour Office violated the principles of natural justice and procedural fairness.

The Labour Office does not have the jurisdiction to investigate this dispute; [13] The appellant argued that he was not an employee of the respondent and asserted that the Director-General of Labour does not have jurisdiction to investigate the dispute under Section 69 of the Employment Act 1955. [14] In this regard, subsection 69 (1) of the Employment Act 1955 reads: “69. (1) The Director General may inquire into and decide any dispute between an employee and his employer in respect of wages or any other payments in cash due to such employee under—

any term of the contract of service between such employee and his employer;

any of the provisions of this Act or any subsidiary legislation made thereunder; or

the provisions of the Wages Councils Act 1947 [Act 195] or any order made thereunder, and, in pursuance of such decision, may make an order in the prescribed form for the payment by the employer of such sum of money as he deems just without limitation of the amount thereof.” [15] Subsection 69(1) of the Employment Act 1955 states that the Director General can investigate and resolve disputes between an employee and employer regarding wages or other cash payments owed under the employment contract. In other words, the Director General of Labour will examine the provisions of the employment contract in resolving the dispute between parties. [16] It is the view of this court, in examining the employment contract, the Director General of Labour will be able to decide whether or not the appellant is an employee of the respondent. Hence, for the Director General of Labour to determine whether or not the appellant is an employee of the respondent, it falls upon the Director General of Labour to hear the matter before he or she can decide whether the appellant is an employee of the respondent. The Director General of Labour, cannot, in the view of this court, based on the assertion of the appellant, decide whether the appellant is an employee or otherwise without hearing the dispute. [17] Therefore, this court is satisfied this ground is without merit.

whether the appellant is an employee of NEK & Associates; [18] To consider whether the appellant is an employee of NEK & Associates, this court considered the facts of this appeal. The facts disclose that throughout the Appellant's service at the branch, his work was supervised by the Branch Manager. At the Labour Court, the respondent had submitted proof of the Appellant's contribution payments to EPF, SOCSO, SIP, EA Statement 26, and CP8D to LHDN (Exhibit D1). [19] Moreover, the appellant acknowledged he had received a salary and there were statutory deductions such as EPF, SOCSO, PCB, SIP, made by the respondent. Founded on this, the respondent was recognized as the appellant’s employer. [20] In this regard, this court alluded to the Federal Court case of Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia & Anor [1996] 4 CLJ 687 which stated: “The terms of the contract between the parties must, therefore, first be ascertained. Where this is in writing, the task is to interpret its terms in order to determine the nature of the claimant’s duties and functions. Where it is not in writing, then its terms must be established and construed. But in the vast majority of cases, there are facts which go to show the nature, degree and extent of control. These include but are not confined to the conduct of the parties at all relevant times. Their determination is a question of fact. When all the features of the engagement have been identified, it becomes necessary to determine whether the contract falls into one category or the other, that is to say, whether it is a ‘contract of service’ or a ‘contract for services” [Emphasis added] [21] Founded on the case of Hoh Kiang Ngan (supra) and the facts of this appeal, namely that the appellant acknowledged she had received a salary and there were statutory deductions such as EPF, SOCSO, PCB, SIP made by the respondent, this court finds the appellant to be an employee of the respondent.

The appellant has the right to refuse the Transfer Order as it is a mala fide action [22] The issue is whether an employer can be said to have acted in good faith without malicious intent when the employer transfers an employee and instructs the employee to report to the new office within half a day ("the Transfer Order")? [23] In the case of Ladang Holyrod v Manikam & Ors [2004] 2 CLJ 697, the Court of Appeal held: “nevertheless, an employer always has the implied right to transfer its employees. As the right is one that is “implied’ no express term in the contract of services is necessary. The right to transfer exist even in the absence of contract of service unless there is a contract to the contrary. The transfer, however, must not be actuated by mala fide or improper or indirect motive and must not involve a change in the terms of employment to the detriment of the employee.” [24] In this appeal, this court finds no evidence of mala fide on the part of the employer/respondent. Bearing in mind it is an implied right of the employer to transfer the employee, this court finds the conduct of the respondent in transferring the appellant to be in good faith. This is based on the fact that the suspension of Ng Mee Ting and the requirements of the MIA. Hence, the transfer of the appellant, is in the view of this court, in good faith.

The appellant did not violate section 15(2) of the Employment Act 1955 [25] In the view of this court, the respondent could have invoked section 15(2) of the Employment Act 1955 to consider that the appellant has breached its terms and/or make a determination based on the appellant's displayed conduct. However, the act of providing an opportunity to be heard is a benefit or favorable to the appellant and also a fairer process. In this context, after the inquiry was conducted, the finding was that the appellant had terminated her employment without notice, which allowed the respondent to make a claim under subsection 13(1) of the Employment Act 1955. [26] It should be emphasised that there is no legal barrier to holding a domestic inquiry in a situation where the employee has been absent from work, and subsequently, the decision is that the employee has terminated their employment under subsection 13(1) of the Employment Act 1955. Please refer to the case: Jalaluddin Bin Mohd Zin & Anor v. Tan Har You & Anor [2020] MLJU 1891. [27] Therefore, this ground is, in the view of this court, without merit.

The respondent terminated the appellant under section 14 of the Employment Act 1955

The amount awarded is incorrect because it does not take into account the appellant's unused annual leave [28] The facts of this appeal are as follows. The notice of return to headquarters dated 23.08.22 was delivered to the appellant. However, the appellant did not attend, and an explanation letter dated 24.08.2022 was delivered to the appellant. On 25.08.2022, the respondent received a letter signed by the appellant and 15 others, referring to the return-to-headquarters notice. [29] On 02.09.2022, the respondent issued a Domestic Inquiry Notice to the appellant to attend the inquiry on 06.09.2022 at 3:00 p.m. The appellant requested a postponement of the inquiry via a WhatsApp message, but the request was not granted. [30] The appellant did not attend the Domestic Inquiry on 06.09.2022. Instead, the appellant, through the law firm Aaron KC NG & Partners, sent a letter titled “Notice of Demand for Constructive Dismissal” dated 06.09.2022. A response was provided through the respondent’s lawyer’s letter dated 21.09.2022 which maintained that the appellant is an employee of the respondent. [31] It also stated the decision of the Domestic Inquiry that the appellant left his duties on 23.08.2022 and effectively terminated his employment on the same date. As such, the appellant is therefore entitled to salary and/or other benefits up to that date. Since the appellant left his duties without providing the required notice, the appellant is required to pay the respondent an amount equivalent to one month's salary. [32] Following from that, on 23.09.2022, the respondent informed the appellant that the decision of the Domestic Inquiry was that the appellant had left their duties without providing the required notice. In lieu of the notice, an amount equivalent to one month's salary must be paid to NEK & Associate. The appellant was asked to contact Ng Eng Kian for final resolution but failed to do so. [33] From the facts before this court, it is clear that the appellant left his job on 23.08.2022 with no intention to report to the headquarters. Since the appellant was clearly absent from work starting 23.08.2022 and did not attend the domestic inquiry held on 06.09.2022, this court finds that the respondent was correct in terminating the appellant. [34] The appellant claimed that the claim is incorrect because it does not consider the appellant's unused annual leave. In this regard, if the appellant does not acknowledge themselves as an employee of the respondent, the issue of annual leave does not arise, as any leave taken by the appellant was not with the respondent but with another party unrelated to the respondent. [35] According to the terms of the contract with the respondent, the total annual leave is 12 days, and there is no provision for study leave or paid leave. On average, up until 23.08.2022, the annual leave was 7.7 days. The appellant had already taken 4 days of leave and 7 days of study leave. This means the appellant had taken 11 days of leave. Under the contract with the respondent, the appellant does not have any study leave. Therefore, the appellant had taken 11 days of leave from 7.7 days. [36] Therefore, in this regard, this court finds the calculation of the award by the Labour Court for annual to be correct.

The Director of the Labour Office violated the principles of natural justice and procedural fairness. [37] The appellant claimed that the Labour Court erred in law and fact when it did not allow the appellant's witness to present further important and relevant testimony. [38] Upon reviewing the Notes of Evidence, for the Appellant, it is clear that the email with the salary slip from NEK & Associates for July 2022 (D4) (pp. 141-142, Volume 1, Appeal Record, Appendix 3) was submitted during the hearing on 23.02.2023 as additional evidence. [39] Moreover, from the Notes of Evidence, this court found that no additional testimony by the appellant was disallowed by the Labour Court. See: Darahman Bin Ibrahim & Ors V Majlis Mesyuarat Kerajaan Negeri Perlis & Ors [2008] 4 MLJ 309. [40] This court further notes that no objections were raised by the appellant when the appellant obtained the Notes of Evidence from the Labour Court. This court therefore is of the view that this ground is baseless. Conclusion [41] For the aforementioned reasons, this court is of the view the Labour Court had not erred in its decision. This appeal is without merit and is therefore dismissed. The decision of the Labour Court is hereby upheld and affirmed. Costs of RM5000.00 to be paid by the appellant to the respondent, subject to allocator. Date: 6 March 2025 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For The appellant Aaron Lee Cheen Yee, Ian Phua Tetuan Aaron KC Ng & Partners Advocates & Solicitors A-3-02, Kelana Square, No. 17, Jalan SS 7/26, Kelana Jaya, 47301 Petaling Jaya, Selangor. aaronlegal2014@gmail.com +6 03 7880 2388 For the Respondent: Thong Seng Kong, Ng Chen Hong Tetuan Thong Seng Kong & Associates Advocates & Solicitors No. 26-1, Jalan PJS 8/18, Dataran Mentari, 46150 Petaling Jaya, Selangor. general@skthong.com +6 03 5630 1936