Chan Kien Woh v Sanjung Cekap Sdn Bhd (BA-16-55-11/2024)

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO: BA-16-55-11/2024 ANTARA CHAN KIEN WOH (No K/P: 621220-10-7857) ... PERAYU DAN SANJUNG CEKAP SDN BHD (No Syarikat: 200901030375) ... RESPONDEN GROUNDS OF JUDGMENT Introduction

1. This is an appeal against the Director General of Manpower (DGM)’s decision dated 23.10.2024 wherein the Appellant’s claim for unpaid salaries was dismissed.

2. After careful consideration of the records of appeal and the submissions, this Court dismissed the appeal. The following are the reasons for that decision. 13/01/2026 15:04:08 BA-16-55-11/2024 Kand. 14 S/N xIgbOuY2Eycspu/cBNXvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Proceedings before the DGM

3. The Respondent was absent at the proceedings before the DGM. The Appellant gave evidence that he was a director at the Respondent since 30.9.2009. He drew a monthly income of RM40,000.00.

4. He contended that he was an employee and referred to the Employees Provident Fund contributions made by the Respondent until July 2024. Although the Appellant worked until September 2024, the last salary he received was in July 2024.

5. In response to questions by the DGM, the Appellant informed that –

(ii) he “managed the whole company including contract, procurement, operation of the side, meeting with developers and subcontractor and then in charge of final account with developers and subcontractor”;

(iii) his work hours were flexible; and

(iv) he did not report to anyone as he was a key personal in charge of the company.

6. The Appellant also informed the DGM that both he and the other director, Shoon Wui Chin had to sign the pay roll instructions to pay the salaries and that Shoon refused to sign. S/N xIgbOuY2Eycspu/cBNXvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 DGM’s decision

7. The DGM dismissed the Appellant’s claim. She held that the Appellant was not an employee as defined in section 2(1) and the First Schedule Employment Act 1955 (Act 265).

8. The DGM was mindful of the presumptions under section 101(C)(1) Act 265 and found that the evidence adduced by the Appellant showed the contrary. Submissions

9. The Appellant’s arguments can be summarized as follows. The DGM had err in fact and law as –

(ii) she descended into the arena of dispute by questioning him during the proceedings;

(iii) raised the issue of section 10 Act 265 dan decided on that basis erroneously without giving the Appellant a right to reply;

(iv) undertook an adversarial role in questioning him; S/N xIgbOuY2Eycspu/cBNXvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

(vi) she failed to consider that his claim was for unpaid salaries right up to the date of her decision.

10. The Respondent argued that the DGM was right to hold that the Appellant was not an employee as there was no proof of his “appointment/engagement” for RM 40,000.00 salary. He was for all intents and purposes a director and a self-admitted to be the “key personal in charge” with no one in control/direction of his working hours.

11. The Appellant was unable to substantiate his claim as there was no proof of EPF contributions or independent verification of his pay slips. Principles of law

12. Section 77(2) Act 265 provides that the procedure for an appeal from DGM to the High Court is the same procedure as an appeal from the Sessions Court.

13. The general principles of law in respect of the appellate jurisdiction of the High Court hearing appeals from the subordinate Court or statutory tribunals is as pronounced in S/N xIgbOuY2Eycspu/cBNXvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 4 MLJ 149 wherein Abdul Wahab Patail, delivering the judgement of the Court of Appeal held at 153 – “It is clear it is a general principle and that there are exceptions when appellate intervention is necessary to ensure justice is done. In the cases regularly cited, the terms ‘intervene’ and ‘interfere’ are used interchangeably. A more precise use of terminology would remove much unnecessary confusion and argument. It is more precise to say that an appellate court will intervene to correct an injustice when it is shown to have occurred in the trial court, but it would be an interference otherwise.” (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 & UMW Motor Sdn Bhd & Anor v. Allan Chong Teck Hin [2021] 3 MLJ 107 at 117). Evaluation and findings Is the Appellant an employee?

14. The first question to be decided in this appeal was whether the Appellant was an employee. Unless the answer is in the affirmative, the DGM has no jurisdiction to hear the Appellant’s claim under section 69 Act 265. S/N xIgbOuY2Eycspu/cBNXvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

15. The starting point is section 2 Act 265 which defines employee to mean – “any person or class of persons—

16. For purposes of this appeal, an employee in the First Schedule Act 265 is “any person who has entered into a contract of service.”

17. In the present appeal, by the Appellant’s own admission, there is no contract of service. However, the absence of a written contract does not automatically mean a person is not an employee, as a contract of service can be both oral and implied.

18. In fact, unless the contrary is proven, section 101(C)(1) Act 265 presumes a person is an employee – “(a) where his manner of work is subject to the control or direction of another person;

19. In Woon Kim Choy v. Acexide Technology Sdn Bhd & Anor and another appeal [2024] MLJU 3109 Lee Swee Seng JCA (as His Lordship then was) held at para [16] - “There is nothing incompatible between a person exercising his role as an executive director of the company and at the same time having a contract of employment with the Company. The two positions and their respective roles and responsibilities may co-exist. This is especially so in cases where an employee may have started off in a junior capacity and was promoted, through the years, to the highest position as an employee and at the same time assuming the position of an executive director or managing director of the company. … It is thus not uncommon for a director to have a contract of employment with the company, whereby their removal as a director would mean they cease to hold that position but continue in their designated role as a high-ranking senior employee. Whilst he may be removable as an executive director by current or new shareholders, his status as an S/N xIgbOuY2Eycspu/cBNXvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 employee would remain intact unless he is dismissed on misconduct.”

20. To determine the issue of whether the Appellant is an employee requires an examination of the evidence that was adduced before the DGM. Most notable is that by this own evidence, the Appellant had dislodged the presumption that he was an employee.

21. As noted by the DGM, the following is the Appellant’s evidence – “S: Apa bidang tugas anda? Saya sebagai pengarah, I manage the whole company including contract, procurement, operation of the side, meeting with developers dan subcontractor and then incharge of final account with developers and subcontractor. Dan saya punya skop masih memerlukan saya. Saya masih melakukan pekerjaan ini. S: Bilakah waktu kerja anda? Fleksibel pasal kalau ada tapak di luar negeri,saya kena pergi. S: Adakah anda tahu berapa kelayakan cuti tahun anda? J: sebagai pengarah, saya tiada ambil ini cuti dan annual leave. S: kepada siapa anda melapor tugasan? Saya sendiri. Tak report kepada sesiapa pasal saya key personal incharge kepada company” S/N xIgbOuY2Eycspu/cBNXvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9

22. The EPF contribution is one of many factors towards determining employee status. In the present appeal, the Appellant’s own evidence showed that the key determinants of employee status of control and integration were absent in his relationship with the Respondent. This was also the finding of the DGM.

23. Having perused her grounds, this Court finds that her decision does not warrant appellate intervention. She was right to hold that the Appellant was not an employee. Other complaints

24. The complaint against the DGM for having raised a question of law on her own accord is unfounded. The DGM merely referred to various provisions in Act 265 to decide on the issue of whether the Appellant was an employee and this included looking at what a contract of service is.

25. Contrary to the Appellant’s arguments, section 10(1) Act 265 was not the main basis for the DGM’s decision that he was not an employee. Rather as alluded to earlier, the Appellant’s claim was defeated by his own evidence.

26. Section 69 Act 265 empowers the DGM to “inquire into and decide any dispute” between an employee and his employer. That fact-finding role necessarily includes asking questions to S/N xIgbOuY2Eycspu/cBNXvA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N xIgbOuY2Eycspu/cBNXvA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N xIgbOuY2Eycspu/cBNXvA **Note : Serial number will be used to verify the originality of this document via eFILING portal