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Case Update: Industrial Court confirms that a dismissal can only occur once an employee starts employment

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EMPLOYMENT LAW
Dismissal – Workman – Offer of Employment – Whether the Claimant is a ‘workman’ under Section 2 of the IRA 1967 – Industrial Relations Act 1967, Sections 20 and 2

Mohammad Ulfa bin Usamah v Allegis Group Malaysia Sdn Bhd
Award No. 784 of 2021, 19 April 2021, Industrial Court
- see the grounds of judgment here

Facts Mohammad Ulfa bin Usamah (“Claimant”) has been offered the position of Recruitment Relationship Manager by Allegis Group Malaysia Sdn Bhd. (“Respondent”) through a letter of offer dated 16 March 2020 with the commencement date of 20 April 2020. However due to the COVID-19 pandemic and the Movement Control Order, both parties agreed to delay the commencement date to 4 May 2020. However, on 24 April 2020, the Claimant received a call from the Respondent rescinding the offer of employment due to the economic downturn caused by the COVID-19 pandemic. A formal letter to rescind the offer of employment was issued by the Respondent on 27 April 2020. The Claimant had already resigned from his previous employment in view of joining the Respondent. Dissatisfied with the Respondent’s decision, the Claimant filed a claim for unfair dismissal under Section 20[1] of Industrial Relations Act 1967 (“IRA 1967”).

Issues Whether the Claimant is a ‘workman’ under Section 2[2] of the IRA 1967.

Held In dismissing the claim, the Industrial Court held that the Claimant is not a ‘workman’ under the definition of the IRA 1967 as he had not commenced employment with the Respondent. The letter of recession was issued on 27 April 2020, which is before the commencement date of the Claimant’s employment with the Respondent on 4 May 2020.  If the termination or rescission of the contract of employment took place before the stated date of commencement of employment, the employee will have no right of recourse under Section 20 of the IRA 1967[3].  As such, in order for the Claimant to bring a claim of unfair dismissal under Section 20 of IRA 1967, the Claimant must be a ‘workman’ and since the Claimant had not yet commenced employment, he is not considered a “workman”.

ZUL RAFIQUE & partners
{17 May 2021}
[1] Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed.
[2] “Workman” means any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute.
[3] Borneo Pulp & Paper Sdn Bhd v Raja Chellaiah [2002] 3 ILR 1227; Elizabeth Voo Sook Ling v Kuala Lumpur City Securities Sdn Bhd [2003] 2 ILR 570.