Rajamansingh Mukesh Singh v Bgb Bina Works Sdn Bhd (BA-16-51-10/2024)

This is an appeal against part of the Director General of Labour (DGL)’s decision dated 20.9.2024 wherein she dismissed the Appellant’s claim for arrears salary amounting to RM42,000.00.

After careful consideration of the records of appeal and the submissions, this Court decided to dismiss the appeal. The following are the reasons for that decision. Proceedings before the DGL

Briefly, the evidence adduced before the DGL is as follows. The Appellant claimed that he was offered a job as Designing and Accounts by the Respondent. Balachander Nagathiram was the employer’s agent. At Balachander a/l Viji Koma (Balachander)’s request, he paid RM11,000.00 to secure a work permit. He was registered with the Respondent on December 2021 but was not given the permit or his passport. In fact he was not given any work nor paid any salary. The Respondent also did not refund the monies he paid to secure the work permit.

Balachander, the Respondent’s director, gave evidence that the Respondent was a small construction company doing renovation works. The Respondent has since closed down. Balachander denied the Appellant’s claim and maintained that he merely helped the Appellant get a work permit for a fee as a favour for his friend Balachander Nagathiram, a chef.

The permit was issued in the Respondent’s name because Indian nationals were only allowed to work in construction. He was in the midst of getting the next work permit when the Appellant lodged a police report regarding his passport. At no point did the Appellant work for the Respondent.

Suhairi bin Iskandaria, an admin staff from the Respondent in charge of managing foreign workers’ documents, confirmed that the Appellant never worked for the Respondent. Balachander merely helped him obtain the work permit. DGL’s decision

The DGL dismissed the Appellant’s claim on the grounds that he was not an employee as defined in section 2(1) and the First Schedule Employment Act 1955 (Act 265). By the same token, she held that the Respondent was not an employer.

The Appellant argued that he was an employee –

even though there was no contract of employment (Shamini a/p Krishnan v. Steps Ahead Learners Sdn Bhd/Taska Steps Ahead Learners Sdn Bhd [2017] 3 ILJ 6);

(ii) the Respondent exercised its power of selection over the Respondent by taking out a work permit as his employer (Employees Provident Fund v. Ms Ally & Co Ltd [1975] 2 MLJ 89; and

(iii) the Respondent exercised control over the Appellant as evident from the fact that the Appellant was at the will of the Respondent who had withheld his passport for over 3 years (Kuala Lumpur Mutual Fund Bhd v. J Bastian Leo & Anor [1988] 2 MLJ 526 & Lian Ann Lorry Transport & Forwarding Sdn Bhd v. Govindasamy [1982] 2 MLJ 232 at 234).

The Appellant also submitted that the denial of his request for adjournment for the purpose of securing legal representation amounts to a breach of natural justice (Ketua Pengarah Buruh v. Britania Brands (Malaysia) Sdn Bhd [2010] 6 CLJ 370).

The Respondent in turn submitted that the Appellant failed to prove that he was the Respondent’s employee (Johara Bi binte Abdul Kadir Marican v. Lawrence La Kwok Gou & Anor [1981]

The Respondent questioned the logic of the Appellant’s stand where on one hand he maintained he was not paid any salary since 2021, yet he applied for a work permit to continue working for the Respondent in 2023. This contradiction lends support to Balachander’s evidence that he merely assisted the Appellant to secure a work permit for a fee.

The Respondent pointed to inconsistencies in the Appellant’s documents where the work permit was issued in the Respondent’s name whereas the Appellant’s medical examination shows BNG Global Resources as his employer.

The DGL was correct to hold that there was no evidence for her to infer that there existed an employer-employee relationship between parties as provided by section 101 C (1) and (2) Act 265 (Hoh Kiang Ngan v Mahkamah Perushaan Malaysia & Anor [1995] 3 MLJ 369; [1996] 4 CLJ 687). Principles of law

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

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 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. Analysis and findings

The opening words of section 69 Act 265 provides the jurisdiction of the DGL to “inquire into and decide any dispute between an employee and his employer in respect of wages or any other payment in cash due to such employee …”

This required the DGL to first come to a determination that the Appellant’s complaint is one of an employee against his employer.

Section 2(1) Act 265 defines –

employee as “any person or class of persons –

included in any category in the First Schedule to the extent specified therein; or …;” and

(ii) an employer as “any person who has entered into a contract of service to employ any other person as an employee and includes the agent, manager or factor of such first mentioned person, and the word “employ”, with its grammatical variations and cognate expressions, shall be construed accordingly;”

The First Schedule Act 265 provides – “1. Any peron who has entered into a contract of service.

Notwithstanding paragraph 1, the person whose wages exceeds four thousand ringgit a month.

Any person who, irrespective of amount of wages he earns in a month, has entered into a contract of service with an employer in pursuance of which –

he is engaged in manual labour including such labour as an artisan or apprentice: Provided that where a person is employed by one employer partly in manual labour and partly in some other capacity such person shall not be deemed to be performing manual labour unless the time during which he is required to perform manual labour in any one wage period exceeds on-half of the total time during which he is required to work in such wage period;

he is engaged in the operation or maintenance of any mechanically propelled vehicle operated for the transport of passengers or goods or for reward or for commercial purposes;

he supervises or oversees other employees engaged in manual labour employed by the same employer in and throughout the performance of their work;

he is engaged in any capacity in any vessel registered in Malaysia and who –

is not an officer certificated under the Merchant Shipping Acts of the United Kingdom as amended from time to time;

is not the holder of a local certificate as defined in Part VII of the Merchant Shipping Ordinance 1952 [F.M. 70/1952]; or

has not entered into an agreement under Part III of the Merchant Shipping Ordinance 1952; or

he is engaged as a domestic employee.”

Guided by these provisions and on the facts of this appeal, the DGL determined that the Appellate was not an employee. The DGL did not come to a finding that the Appellant was not an employee merely because there was no contract of service.

From her grounds of decisions, it is clear that she was also guided by sections 101C(1) and (2) Act 265 and found – “tiada satu bukti dari segi kawalan mahupun bukti bayaran gaji yang dapat dibuktikan oleh pihak pengadu berhubung defendan yang dianggap sebagai majikan. Mahkamah juga berpandangan bahawa jika permit kerja adalah di bawah nama syarikat defendan sekalipun, ianya tidak boleh dianggap sebagai suatu kontrak kerja yang mengikat defendan dan seterusnya beranggapan bahawa defendan merupakan majikan kepada pengadu.”

She found the fact that the Respondent took out a work permit for the Appellant was simply insufficient to conclude an employee-employer relationship between them.

From the evidence adduced before the DGL, there is nothing to support the Appellant’s contention he was the Respondent’s employee other than the work permit. It was his own evidence that he never did a day’s work for the Respondent nor was he paid any salary.

On the other hand, the Respondent gave an acceptable reason for applying for the Appellant’s work permit and retaining his passport for processing his second work permit.

In light of the presentation of evidence in this appeal, this Court cannot fault the finding and reasoning of the DGL. Therefore, the Appellant’s attack on her decision is without merit. Right to be heard

The Appellant filed his complaint on 19.4.2024. During the mention dates before the DGL, his counsel was Encik Abdul Aziz bin Ismail, a representative from Tenganita. The hearing was fixed for 29.7.2024 but was adjourned at the Appellant’s request to appoint counsel. The enquiry was moved to 21.8.2024.

The notes of evidence show – “Wakil pengadu memohon untuk perbicaraan kes ini ditangguhkan bagi memberi peluang kepada pengadu untuk melantik peguam mewakili pengadu dalam perbicaraan. Wakil pengadu telah ditegur kerana telah membuang masa mahkamah dengan membuat permohonan untuk penangguhan bicara disebabkan pengadu masih belum melantik peguam sedangkan di dalam surat panggilan bicara bertarikh 01/07/2024, pengadu telah dimaklumkan dengan jelas bahawa perbicaraan akan dijalankan pada tarikh yang telah ditetapkan. Namum demikian, atas budi bicara pegawai pendengar kes, kes ditangguhkan bicara. Perbicaraan penuh bagi kes ini telah ditetapkan pada 21 Ogos 2024 jam 9:00 pagi. Wakil pengadu juga dimaklumkan bahawa tiada penangguhan lagi akan dibenarkan selepas tarikh 21 Ogos

…”

On 21.8.2024, another request for adjournment for a further 3 weeks was made as follows – “wakil pengadu memohon penangguhan kerana baru sahaja mendapat wakil peguam untuk mewakili pengadu.” The DGL denied denied the request, holding – “Mahkamah tidak bersetuju dengan permintaan penangguhan dari wakil pengadu memandangkan pengadu sudah diberi banyak kali peluang untuk mendapat khidmat peguam bagi mewakili pengadu. Mahkamah tetap teruskan perbicaraan tanpa pengadu diwakili oleh mana-mana peguam. Pengadu juga sepatutnya lebih bersedia disebabkan pengadu yang memohon penundaan tarikh bicara dan juga memaklumkan akan hadir bersama-sama seorang peguam mewakili pengadu pada bicara pada hari ini. Mahkamah menolak alasan yang diberikan oleh wakil pengadu dan perbicaraan tetap jalan …”

Although it is an enquiry and not a court proceeding, the decision whether or not to grant an adjournment is within the discretion of the DGL. It is trite that if there is an application for adjournment, the court or in this case the tribunal must look at the material facts and grounds of the application in order to exercise its discretion correctly. A refusal to grant an adjournment can constitute a failure to give a party the opportunity of adequately presenting his case. Discretion must be exercised based on sound principles so as not to cause a miscarriage of justice.”

On the facts of this appeal and the notes of proceedings, this Court is satisfied that the exercise of discretion by the DGL was correct. She had already granted the Appellant an adjournment to appoint a counsel to represent him and yet he failed to do so.