Legal Update 22 of 2016

Whether a letter for promotion during employment formed a valid agreement between an employer and employee. 

CASE:

Tan Sri Nordin Kardi & Anor v Abdul Halim Mohamed & Another Appeal [2016] 7 CLJ 513 CA


BRIEF FACTS:

  • The plaintiff ('Abdul Halim') was employed by University Utara Malaysia (the 'university/UUM') as a lecturer.

  • The Registrar of UUM issued a letter to Abdul Halim (the 'Registrar' letter') informing him that the Majlis Eksekutif Universiti had agreed to recommend him to be promoted to senior lecturer if he passes the Kriteria Kecemerlangan Akademik and Penilaian Tahap Kecekapan ('PTK').

  • The criteria for promotions were later amended via Circular 2007.

  • Post amendments, for promotion from lecturer to Senior Lecturer; a candidate who holds a PhD must (i) be confirmed in employment; (ii) pass the PTK; and (iii) receive an acknowledgement from Ketua Pusat Tanggungjawab ('KPT').

  • Abdul Halim passed the PTK but was not promoted to a Senior Lecturer.

  • Abdul Halim appealed against the said decision to the first appellant (Tan Sri Nordin Kardi).

  • The university's Registrar informed Abdul Halim that he should undergo a period of six month to a year for reassessment. 

  • The University did follow up on its decision to reassess Abdul Halim's promotion. 

  • In the meantime, Abdul Halim had howebver filed an action at the High Court against the Defendants for (i) a declaration that Abdul Halim held the position of Senior Lecturer since June 2008; (ii) backdated salary and all other dues since June 2008 until the final payment based on the salary scale of Senior Lecturer; (iii) tuition fees amounting to RM 200,000 and (iv) damages due to stress and pressure.

  • In allowing Abdul Halim's claim in part, the Judicial Commissioner (the 'JC') found that the Registrar's letter consituted a valid contract between Abdul Halim and the defendants' and Abdul Halim had fulfilled the two conditions that entitled him to the promotion.

  • However, Abdul Halim's claim for damages and tuition fees were found to be unsubstantiated and were therefore dismissed.


DECISION: Defendant's Appeal Allowed

  • Being a university incorporated and established under the Universities and Univerity Colleages Act 1971 ('UUCA'), UUM is strictly governed by the provisions of the UUCA and the Constitution of University Utara Malaysia (the 'UUM Constitution').
  • Section 6 of the UUM Consitution provids that the university has the powers with regard to academic, administrative and service matters.
  • It is the duty of the university to set guidelines/ conditions for its employees for the purpose of promotion in their career.
  • The Registrar's letter was merely a letter of notification to Abdul Halim on what was required by UUM to enable him to be promoted to the post of Senior Lecturer, subject to him fulfilling the two conditions. 
  • The Registrar's letter did not in any way, form a valid contract between Abdul Halim and UUM.
  • The university had every right to issue the 2007 Circular which in effect amended the Registrar's letter by adding other conditions for Abdul Halim to fulfil before he could be considered to be promoted.
  • However, Abdul Halim did not fulfill the two criteria until almost a year after the 2007 Circular. 
  • Abdul Halim had also failed to receive a positive acknowledgement from the KPT.
  • No breach was committed by the university or Tan Sri Nordin when they failed to promote him to Senior Lecturer.
  • Thus, Abdul Halim had no lawful claim against the defendants in damages. 

 

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