Law and Practice of Employment Law in Malaysia – ‘Contracts of Employment’
In the recently published text “Law and Practice of Employment Law in Malaysia”, by Thomson Reuters Asia Sdn. Bhd, Mehala Marimuthoo and Gavinesh Siva Dharma contributed a section relating to the “Contract of Employment”.
Various aspects of the employment contract are considered in this section of the publication including the relevant legislation which governs and regulates the contract and the express and implied terms normally contained therein including the duty of confidentiality on both the employee and the employer.
Recent issues relating to the contract of employment which have arisen for consideration by the courts include whether e-hailing drivers may be considered as “workmen” under the Industrial Relations Act 1967 (revised 1976) so as to bring a claim for dismissal without just cause and excuse under Section 20 of the Act.
These issues are of some importance given it is becoming increasingly prevalent for work in a variety of occupations and trades to be conducted on a flexible basis as opposed to traditional modes of working in office premises where the control test was important in determining the issue.
Equally significant is the recent Federal Court decision of Zahri bin Mirza Abdul Hamid v AIMS Cyberjaya Sdn Bhd [2020] 5 AMR 1 relating to the issue of whether a contract for a fixed period of time was, in substance, a permanent contract. Factors that would be taken into account to determine the issue include the intention of the parties, the employer’s subsequent conduct during the course of employment, the nature of the employer’s business and the nature of work which an employee is engaged to perform. It was held that the contract was not one-off, seasonal or temporary but ongoing without any break for 4 years.
The decision in Zahri bin Mirza further establishes the fact that the contract of employment was subject to a work permit would not in itself be a decisive consideration in determining whether such contract was permanent in nature and the fact the employee was not a Malaysian citizen was not relevant to the issue to be determined.