m
m 


  



p
 p
 m
 By virtue of G

 p


p


Gmeans ,
whether

and whether GG

, whereby
G
G



 G an 
 and  
 G

G G
G
and G
G 
µ
 m

  

  

 G
 Ôhen a problem in a work relationship results in court
action, the courts will establish the existence of a
contract of service/ employment before they consider
the specifics of a case
 In investigating the legal relationship, a 'contract of
service' is taken to denote employment. A 'contract for
service' does not involve employment
 m

 ÷here are several 


!"
"GG
to assist the court in determining the existence of a
contract of service i.e.
- the control test
- integration test
- multiple test
- economic reality test
- mutual obligation test
 m
   

G
 In the first instance, the courts investigate if the user of
labour has the " 


"the worker. ÷hey will
look at the work relationship for indicators of control
 p
G

#$
$

 



- the Court of Appeal upheld the decision of the High
Court that shop managers were employees of Bata
due to the considerable control which the company
had over the shop managers
m

- however there was no relationship of employer and

employee between the Bata Shoe Co. (M) Ltd and
the salesmen employed by the shop managers of the
company. Under the agreement between the
company and the managers, the managers were given
power to employ persons to assist them and it was
stated that the managers would be responsible for
payments under the Employment Provident Fund
Ordinance
 m
 i
G
 ÷he ¶integration test· seeks to test if the worker is "
" of the business organization, and also
involves study of each and every specific situation
 G
%&
'G

(
pG
 
! it was stated ´under a contract of service, a man is
employed as part of the business, and his work is done
as an integral part of the business; whereas, under a
contract for services, his work, although done for the
business, is not integrated into it but is only accessory
to it"
 m
 p
G

#$
 )
 
(1975)
- In this case, the Federal Court applied the test in
G
%&
'G

(
pGand found that 
*
GGGG

 
+GGG of M S Ally &Co Ltd and were rewarded
by a share of the profits 
G of M S
Ally
 m
 G
 ÷he central elements of the multiple test are:
1. Did the worker undertake to provide his/her own

*G*

,
2. Ôas there a G


to
enable the worker fairly to be called a servant?
3. Ôere there any 
G
GG the
existence of a 

G?
4. Ôhat 
G would definitely  
Gof a G-G
G ? If
there are none, then there is a presumption that,
because the worker could be a servant, he should be
so considered
 m
 2  


 pG.
G

G
G
iG
(1968)
- the plaintiff was in the business of making and selling
ready mixed concrete
- the company had engaged an independent haulage
contractor to deliver the concrete to customers but
that contract was terminated and RMC decided to
introduce a scheme whereby concrete was delivered
by owner-drivers working under written contracts
m

- the owner-drivers entered into a hire purchase

agreement with Ready Mix Finance Ltd to purchase
a lorry but the mixing equipment on the lorry was
the company·s property
- in 1965 the company asked the Minister of Social
Security for a determination of the employment
status of one of the owner- drivers, Mr Latimer
- held: Mr Latimer was a ´small business manµ and
not a servant. He concluded that the contract was
not one of service but of carriage.
 m
 p

2G
 ÷he ¶economic reality test· focuses on the inconsistency
of seeking a profit from doing the work with doing the
work as an employee
 Ôhat really distinguishes employees from independent
contractors, it was said in a number of cases, is that the


G
* 


*
  


G
 m
 *iG
G. G


(1969)
- Market Investigations Ltd was a market research
company
- it employed a small number of full-time interviewers
but, for the most part, drew on a panel of casual
interviewers and the case concerned this latter group
- the question arose whether an interviewer, Mrs
Irving who was 
G+GG, was
employed under a series of contracts of service or
under a series of contracts for services
m
- the facts found included
- during a period of 81 weeks Mrs Irving worked
for 61 full days and 8 half days and was paid on a
daily basis plus expenses
- the contract did not provide for time off, holidays
or sick pay
- interviewers were free to work for other firms
during this period
- the company thought they could not dismiss Mrs
Irving in the middle of an assignment
m
- held that Mrs Irving was employed under a series of
contracts of service. ÷he court said ë
ë, ´÷he
fundamental test to be applied is this: µIs the person
who has engaged himself to perform these services
performing them as a person +GGG
 G


,µ If the answer to that question is
'yes' then the contract is a contract for services. If
the answer is 'no' then the contract is a contract of
service..µ
 m

 +
G
 It is said that the relationship of employer and employee
cannot exist unless the 
GG


+

G
*  
*
G
+
*
*

 

+
can be an important
question where casual working is involved
 m
 G 

G 

 
 A contract of service may be oral or in writing, but
under 2
+p
2
G
the following terms must be given to an employee
in writing on or before the commencement of his
employment:
- 

and National Registration
Identification Card No
- 
or appointment
m
! G(excluding other allowances)
-  
Gpayable and rates
- 2G


*
- / +G(including approved amenities and
services)
- 

G

*
! 








G
- +
G


G
 
! (



 m
 (G
p

 ÷he duties of an employer may be summarized as
follows:
- ÷o pay employees
- ÷o give holidays & holiday pay
- ÷o provide sick pay
- ÷o allow maternity leave
- ÷o comply with the Employment Act
- ÷o provide a safe working
environment
 m
- ÷o comply with Health & Safety Regulations
- ÷o indemnify losses & liabilities incurred while
employee is carrying out duties
 ÷he employer has NO duty:

- ÷o provide work
- ÷o protect employees· property
 m
 (G
p

 ÷he duties of an employee include:

! ÷o use reasonable care & skill in work

- ÷o carry out lawful & reasonable instructions
- ÷o give faithful service
- Not to disclose trade secrets or confidential
information
 m
 ÷here are 
ways in which a contract of employment
may come to an end:
1. 2G
 - termination with/without notice on
the part of the employee, due to the cause that the
employer by his or her conduct, in breach of the
contract, has shown an intention not to be bound by
the contract ² 

p
2. (GGG² termination with/without notice by
the employer - 

p
´Either party to a contract of service may at any time
give to the other party notice of his intention to
terminate such contract of serviceµ
m
3. p

- A limited-
term contract is a contract for a fixed term or the
performance of a specific task, or one which ends
when a specified event does or does not occur
- 

p
´A contract of service for a specified period of time
or for the performance of a specified piece of work
shall, unless otherwise terminated in accordance
with this Part, terminate when the period of time
for which such contract was made has expired or
when the piece of work specified in such contract
has been completedµ
m

4. to terminate employment

- 
/p
´ In every written contract of service a clause shall
be included setting out the manner in which such
contract may be terminated by either party in
accordance with this Partµ
 m
 u
G
GGG
1. 
G
G, provided the requisite notice
periods are complied with
- G
p states:
´ «where the termination of service of the
employee is attributable wholly or mainly to the
fact that-
(a) the 
 GG%
G

G

 +GGGfor the
purposes of which the employee was
employed
m

(b) the 

 GG
G

G

 +GGG 
at which the employee was contracted
to work
(c) the 0G
 +GGGfor the
employee to carry out work of a particular
* G
G 
are

G
G 
m
(d) the 0G
 +GGGfor the
employee to carry out work of a particular
kind  at which he was
contracted to work have ceased or diminished
or are expected to cease or diminish
(e) the 
 GG
 G
G

 


, unless his contract of service
requires him to accept such transfer or
m
(f)   G
 

G 
 +GGG for the
purpose of which an employee is
employed or of a part of such business,
regardless of whether the change occurs
by virtue of a sale or other disposition or
by operation of law
m

the 
G +
%and the
employer shall give to the employee, 



of service, and the length of such
notice shall be not less than that provided under
subsection (2) (a), (b) or (c), as the case may be,
regardless of anything to the contrary contained in
the contract of service
m
2. If an 
G+G

 

consecutive working G%


G
+G, then his or her employment
may be terminated - G
pstates:
´An employee shall be deemed to have broken his
contract of service with the employer if he has been


G+Gfrom work 

 


G
*G


 from his employer, unless he has a reasonable
excuse for such absence and has informed or
attempted to inform his employer of such excuse
prior to or at the earliest opportunity during such
absenceµ
m
3. Dismissals on the 
G
G
 are
possible without notice, but
1
02by the employer ² G

p
´An employer may, on the 
G

G
inconsistent with the fulfilment of
the express or implied conditions of his service,
0
(a) GGG

the employee
(b) 
 
or
(c) 
G
 GGG as
he deems just and fit, and where a punishment
of suspension without wages is imposed, it
shall not exceed a period of two weeks
p


 *3  3 .$ .

G

*G4
(1990)
- held : "Misconduct" refers to conduct so seriously in
breach of the accepted practice that, by standards of
fairness and justice, the employer should not be
bound to continue the employment
 m

 uenerally, there are two broad categories of misconduct:

- 
misconduct; and
- 
GG misconduct
 Some examples of minor misconduct are:
- being late
- using a company vehicle for unauthorized personal
uses
- not performing to adequate/satisfactory standards
p


 Some examples of gross misconduct are:

- abusive behaviour or violence
- theft or fraud
- alcohol or drug abuse
- discrimination or harassment
- deliberately damaging company equipment/property
- seriously breaking health and safety regulations
- serious negligence
- serious insubordination
- misuse of an organisation·s property or name
- serious breach of confidence
p

 

G
G
+Gi$
+G
(1981)
- held: ´in determining the reasonableness of an
employer's decision to dismiss, the 
Gis
not what the policy of the employer was but what
the reaction of a reasonable employer would be in
the circumstances « taking account of the
employee's length of service and previous record..µ
 ÷his principle has been employed in a local case of &

G
iG
 .$  5

G (2001)
p


 ´÷he +

 that the GGG of a
workman G 6GGe or excuse G
 

.÷he standard of proof is on the +


++G.÷he 
G
 
 
  G G




 0
 


....2
- Halsbury's Laws of Malaysia
p


 2G
(GGG
 ÷he central pieces of G

 



 G
-  p
%
p
G
-  iG2
G%
G

i2and
-  p


!
$G2
G%/
G
p


 Also important are:

-  

% as developed by Industrial and
Appeal Courts
- 
Gand
- 
G
G
p


 ÷he EA applies to all employees, irrespective of their

occupation, who are paid less than a G
(First Schedule, EA, as amended by the EA Amendment
Act, 1980 - whose earnings do not exceed RM1,500.00
a month and all manual workers irrespective of their
earnings.
 ÷he IRA applies to 1
*2 and defines
´workmanµ widely, to include G
employed by
an employer 


%
G(sec. 2, IRA).
 m

 ÷he Employment (÷ermination and Lay-off Benefits)

Regulations apply to all employees with G


G% except outworkers (secs. 3 and 7 of
the Regulations).
p

 
$G
  p


!
$G2
G%/2
 says that an
employee shall be entitled for 
+G
payments where his contract of service is terminated for
G
 G

 G 
- upon attaining the age of 
- by the employer, on the ground of G
 after
due inquiry;
- 
+ 
other than under
s13(2) or for the reason under S 14(3)
p

 G
pstates:
´Either party to a contract of service may
terminate such contract of service without
notice in the event of any wilful breach by the
other party of a condition of the contract of
serviceµ
 G

pstates :
´ An employee may terminate his contract of service
with his employer without notice where he or his
dependants are immediately threatened by danger
to the person by violence or disease such as such
employee did not by his contract of service
undertake to runµ
p


 G. /i2allows the 
*
*
G
 where he considers that he has been
´GGG 
6GG
Gµ
 Ôhere there has been a termination due to misconduct-
the failure of conducting due inquiry prior to the
termination is a statutory breach the employer
is not exempted from paying termination benefit
p


 2G
 ÷his is the primary relief conferred on the Industrial
Court by the Industrial Relations Act 1967 (IRA)
 ÷he Industrial Court is to inquire into an 
7G
G
to be reinstated on the basis that he
considers himself to have been dismissed without just
cause or excuse
p


 ÷he Industrial Relations Department then may attempt

to settle the dispute, including by conciliation
 Ôhen the trust of the employer/employee relationship
has broken down, reinstatement would not be proper a
remedy by the Court ƒ held in 3 +
u
+ 5GG [2003]
 If no settlement is possible, the Department will report
the matter to the Minister, who may refer the matter to
the Industrial Court
p

  
G

 In Malaysia, whenever reinstatement is impracticable,
the Industrial Court will award the complainant

G
ë
ë

G, which is
given at the usual rate of one month·s salary for each
completed year of service
 ÷he Industrial Court has the discretion to award a
greater amount having regard to the particular facts,
circumstances and substantial merits of the case under
s.30(5) of the Industrial Relations Act, 1967
p

 Further, the Court may award back wages from the
date of the dismissal to the date of conclusion of the
hearing, subject to a maximum of 24 months
 
 +
  

 ÷he employee may G
G*G


Gin the Labour Court while retaining
the right to bring proceedings, such as for breach of
contract or wrongful dismissal, in the civil courts

 


GGG
 ÷he employee may choose to proceed in the civil courts
in an action for wrongful dismissal or breach of contract