Mohd Jamel Bin Abdul Rahman v Baker Hughes (M) Sdn. Bhd. (WA-22NCvC-771-12/2024)

It is not difficult to draft various allegations aplenty in a statement of claim, to create a cause of action when there is actually none. However, once a defendant has filed a striking-out application and adduced evidence in his affidavit to prove that the plaintiff’s claim is unsustainable, the onus shifts to the plaintiff to adduce evidence in his affidavit-in-reply – to show that his pleaded claim is not obviously unsustainable and therefore deserves a full trial.

In this case, after verifying the undisputed facts from the affidavits and submissions of both counsel, it was amply clear that the Plaintiff’s claim is plain and obviously unsustainable. Hence, I was constrained to allow the Defendant’s application to strike out the Plaintiff’s writ and Statement of Claim. My reasons are as set out below. 22/10/2025 21:18:32

The Plaintiff is a director of a company by the name of Jana Hayat Engineering Sdn Bhd.

The Defendant is a company incorporated in Malaysia and is one of the companies that is part of a larger corporation known as Baker Hughes Oilfield Operations LLC.

NES Global Technical Consultants Sdn Bhd (“NES”) is an affiliate of NES Global LLC, which is best described as in the business of providing engineering and technical personnel for other companies that choose to engage contractors instead of hiring their own employees.

6.

In accordance with the terms of the Master Services Agreement, the Defendant engaged NES for the provision of Drilling Supervisor services (“the Services”). The terms of engagement of NES for provision of the Services are set out in the Local Implementation Agreement signed on 22nd December 2020 between NES and the Defendant (“the NES-BHM Agreement”). S/N EFQlcKslMEequBirx9Ung GUAMAN SIVIL NO: WA-22NCvC-771-12/2024 8. In order for NES to provide the Defendant with the Services, NES engaged the Plaintiff’s said company Jana Hayat Engineering Sdn Bhd (“Jana Hayat”) to provide the Services to the Defendant. The terms of engagement between NES and Jana Hayat are set out in the Contract Offer Letter – Limited Liability Company dated 15.7.2024 between Jana Hayat and NES (“the Jana Hayat-NES Contract”).

The Defendant is not a party to the Jana Hayat-NES Contract.

At all material times, the Plaintiff was the engineer assigned by Jana Hayat to NES for the provision of the Services. Subsequently, the Plaintiff was assigned by NES to the Defendant to provide the services of a Senior Drilling Supervisor. Facts Giving Rise to the Plaintiff’s Claim 11. The Defendant took the position that the Plaintiff’s performance of the Services did not meet the Defendant’s required standards. After the Defendant informed NES of its decision to discontinue the provision of Services by NES, NES decided to terminate the engagement of Jana Hayat. Therefore, the assignment of the Plaintiff by Jana Hayat was ended.

The Plaintiff was dissatisfied and contacted the staff of the Defendant directly but was told that the mistakes that he made were very serious, and that, in any event, there was no contract between the Plaintiff and the Defendant. S/N EFQlcKslMEequBirx9Ung GUAMAN SIVIL NO: WA-22NCvC-771-12/2024 13. The Plaintiff was dissatisfied and commenced proceedings by way of this civil suit against the Defendant for alleged unfair or unjust dismissal and/or termination of his employment. The Defendant’s Striking-out Application 14. The first point raised by the Defendant is that there was never at any material time any privity of contract between the Plaintiff and the Defendant.

Since this Court has decided that the Plaintiff’s claim is obviously unsustainable, I shall delve straight into my analysis of the facts and law. Analysis of the Facts and Law 16. First, a perusal of the Plaintiff’s Statement of Claim show averments that contradict documentary evidence. In para 3.1 thereof, the Plaintiff pleaded that he was appointed by the Defendant as a Senior Drilling Supervisor (Consultant) on 1st July 2024 under a contract for one year. A screenshot of para 3.1 is shown below:

The plea in para 3.1 (as shown above) is as if there was a written employment contract made between the Plaintiff and the Defendant – when in fact no such agreement exists. There was no contract between the Plaintiff and NES or the Defendant. The contracts in S/N EFQlcKslMEequBirx9Ung existence were between the Jana Hayat and NES, and between NES and the Defendant respectively. It is not open to the parties thereto or to this Court to disregard the respective contractual obligations of the parties to those contacts.

In other words, the Defendant is well justified to rely on the doctrine of privity of contract to state firmly that it had never enter into any contract with the Defendant. On this ground alone, the Plaintiff’s claim – allegedly as an employee of the Defendant – is obviously unsustainable.

For the avoidance of doubt regarding this Court’s finding that there could be no employment relationship between the Plaintiff and the Defendant, I shall go on to examine and analyse the documentary evidence with reference to the other parts of the Plaintiff’s Statement of Claim.

The Plaintiff pleaded in para 3.2 of the Statement of Claim that his (very high) wages was RM9,412.83 per day (“RM9,412.83 per day” is no typographical error) when carrying on off-shore work and RM4,708.83 per day for carrying on on-shore work. A screenshot of para 3.2 is shown below: S/N EFQlcKslMEequBirx9Ung GUAMAN SIVIL NO: WA-22NCvC-771-12/2024 21. Now, the critical point here – which is undisputed – is that the Defendant was never involved in making any payment to the Plaintiff, regardless what high fees NES had agreed with Jana Hayat. The Defendant paid NES for the provision of the Services, and as to how much NES paid Jana Hayat was none of the Defendant’s concern. In fact, the contractual obligation was for NES to pay Jana Hayat. In other words, even NES is under no legal obligation to pay the Plaintiff personally. Hence, how could the Plaintiff be claiming to have a cause of action to sue the Defendant directly, to claim to be an employee of the Defendant? With respect, this is yet another point which shows that the Plaintiff’s claim is obviously unsustainable.

Since there was no contract between the Plaintiff and the Defendant, there was no obligation for the Defendant to issue any notice of termination to the Plaintiff. It is my judgment that the Defendant had rightly dealt only with NES to voice its dissatisfaction with the performance of the engineer provided by NES, who was the Plaintiff in this case.

The next point that this Court had to consider is whether the WhatsApp messages between the Plaintiff and one of the Defendant’s employee could be construed to make the Plaintiff an employee of the Defendant?

A reading of the WhatsApp messages disclosed three facts. First, the Plaintiff had committed several errors in performing the services which he rendered. Secondly, the Plaintiff did not deny that he had been careless, and was actually asking the Defendant’s employee to assist him to convince the Defendant to NES to re-engage his S/N EFQlcKslMEequBirx9Ung company’s services. Thirdly, upon the Defendant’s employee pointing out again that the Plaintiff’s errors were too serious to be disregarded, the Plaintiff attempted to school the Defendant’s employee about how to treat people.

With respect, this case could be decided based on the undisputed facts as analysed above. There is simply no basis for the Plaintiff to be claiming damages of over RM1.5million (as prayed in his Statement of Claim) from the Defendant.

On the law, I find that learned counsel for the Defendant had rightly relied on Government of Malaysia v Lim Kit Siang, United Engineers (M) Berhad v Lim Kit Siang [1988] 2 MLJ 12 regarding the Plaintiff’s lack of locus standi to sue the Defendant, on Boustead Naval Shipyard Sdn Bhd v Dynaforce Corp Sdn Bhd [2015] 1 MLJ 284 for the principle that only parties to a contract can sue on it, and on University of Malaya v FBSM Ctech Sdn Bhd [2018] MLJU 1201 for a similar contractual arrangement case.

Even if I have erred in ruling that the Plaintiff was never at any time an employee of the Defendant, it is trite that claims for unfair dismissal should be pursued under Section 20(1) of the Industrial Relations Act 1967 before the Industrial Court, not the civil courts. This was reiterated by the Court of Appeal recently in 7-Eleven Malaysia Sdn Bhd v Ashvine Hari Krishnan [2023] 3 MLJ 469.

Further, the Plaintiff’s claim for damages for wounded feelings or loss of reputation from dismissal are clearly not permissible in law – even if assuming for a moment that he was an employee. This was S/N EFQlcKslMEequBirx9Ung S/N EFQlcKslMEequBirx9Ung Counsel for the Plaintiff: Muhammad Hisyam Bin Md Yunus SOLICITORS FOR THE PLAINTIFF: MESSRS HISYAM YUNUS & CO Advocates & Solicitors 18-3A1 Binjai Premium Soho, No. 2 Lorong Binjai, 50450 KUALA LUMPUR. Counsel for the Defendant: Tham Li Vyen (Mohd Danish Zamri with her) SOLICITORS FOR THE DEFENDANT: MESSRS RAJA, DARRYL & LOH Advocates & Solicitors Tingkat 26, Menara Hong Leong, No. 6, Jalan Damanlela, Bukit Damansara 55200 KUALA LUMPUR. S/N EFQlcKslMEequBirx9Ung

Government of Malaysia V Lim Kit Siang, United Engineers (M) Berhad V Lim Kit Siang [1988] 2 MLJ 12.

Boustead Naval Shipyard Sdn Bhd V Dynaforce Corp Sdn Bhd [2015] 1 MLJ 284.

University of Malaya V FBSM Ctech Sdn Bhd [2018] MLJU 1201.

7-Eleven Malaysia Sdn Bhd V Ashvine Hari Krishnan [2023] 3 MLJ

469.

Fung Keong Rubber Manufacturing (M) Sdn Bhd V Lee Eng Kiat & Ors [1981] 1 MLJ 238.

Mandong Transport & Trading Sdn Bhd V Pertubuhan Keselamatan Sosial [2020] MLJU 912.

Hoh Kiang Ngan V Mahkamah Perusahaan Malaysia & Anor [1996] 4 CLJ 687. LEGISLATION REFERRED TO:

Section 20(1) of the Industrial Relations Act 1967 S/N EFQlcKslMEequBirx9Ung