Jayadeep Hari & JamilJayadeep Hari & JamilJayadeep Hari & JamilJayadeep Hari & Jamil
  • About
  • Our People
    • Partners
    • Consultant
    • Associates
  • Practice Areas
  • Publications
    • Legal Updates
    • Our Reported Cases
    • Legal Cauldron (Temporary suspended)
    • Articles
    • News & Bulletin
  • We Care
  • Careers
  • Contact Us

Legal Update 14 of 2023

    Home Legal Updates Legal Update 14 of 2023
    NextPrevious

    Legal Update 14 of 2023

    By jhjadmin | Legal Updates | 0 comment | 19 September, 2024 | 0

    “Whether a person who holds the position as Director and Shareholder of a company can be deemed as “workmen”/employee of the company under the Industrial Relations Act 1967, entitling him/her to initiate a claim for unfair dismissal?”

    Case:

    Gopala Krishnan Chettiar a/l Muthu v Sealand Marine Inspection and Testing (M) Sdn Bhd & Anor [2023] 4 MLJ

    Brief Facts:

    • The Appellant, Gopala Krishnan Chettiar Krishnan (“Krishnan”) joined Sealand Marine Inspection and Testing (M) Sdn Bhd (“Company”) on 3.11.2016 as an Operations Director.

    • Krishnan did not have a contract of employment with the Company, but was paid a sum of RM 20,000 monthly as director’s fee which was subjected to EPF and SOCSO deductions.

    • Krishnan was also given 20% shares of the Company in which he did not pay for.

    • On 12.3.2018, the Company alleged that Krishnan was responsible for the resignation of several employees of the Company.

    • In light of the said allegation, Krishnan was given a pre-prepared resignation letter for him to sign but he refused to do so and walked away.

    • Subsequently, the Company terminated/removed and barred Krishnan’s access to Company’s email, WhatsApp groups and premises.

    • Aggrieved by the events that occurred he considered himself to have been dismissed without just cause or excuse, Krishnan brought a claim under constructive dismissal.

    THE DECISION OF INDUSTRIAL COURT (IC)

    • One of the primary issue at the IC was whether Krishnan can be deemed a “workman” by virtue of section 2 of the Industrial Relations Act 1967 (“IRA 1967”) which would warrant him the right to sustain a claim under constructive dismissal.

    • The IC held that although Krishnan was holding the position of Director and Shareholder of the Company, he was not the controlling mind of the Company as he was performing the duties of an employee as an Operation’s Director i.e. reporting to the other director, carrying out site visits etc.

    • The IC ruled that Krishnan was a workman and hence could sustain the case in Court. The Court also ruled that he was dismissed unlawfully.

    • The Company applied to set aside the decision of the IC at the HC.

    THE DECISION OF HIGH COURT (HC)

    • The HC set aside the decision of the IC and ruled that as director/shareholder of the Company, Krishnan cannot be deemed as “workman” for the purpose of IRA 1967 and would not be entitled to the statutory protection under the IRA 1967.

    • Krishnan then appealed to the Court of Appeal.

    THE DECISION OF COURT OF APPEAL (COA)

    • The COA noted that merely being a company director does not preclude a person from carrying out functions and duties as an employee and to be remunerated as such.

    • The COA held that the definition of ‘workman’ is a flexible one and that since the IRA 1967 is a manifestation of a social legislation, the term workman should be construed ‘liberally’ and not ‘restrictively’.

    • In light of the above, the COA found that the IC, which examined the functions of Krishnan, was correct to find that although Krishnan was a director/shareholder, he was nevertheless carrying out functions or duties as a workman in his capacity as operations director.

    • Therefore, the COA ruled in favour of Krishnan and reinstated the IC award by ordering the Company to pay Krishnan RM320,000.00 as back-wages and compensation in lieu of reinstatement.
    No tags.

    jhjadmin

    More posts by jhjadmin

    Related Post

    • Legal Update 9 of 2020

      By jhjadmin | 0 comment

      Can a civil servant be dismissed from employment by a local authority without affording him the right to be heard? Case: PIHAK BERKUASA TATATERTIB MAJLIS PERBANDARAN SEBERANG PERAI & ANOR v. MUZIADI MUKHTAR [2020] 1Read more

    • Legal Update 10 of 2020

      By jhjadmin | 0 comment

      Can the payment of quit rent, assessment rates, electricity and water bills be used to prove ownership of property? Case: HS REALTY SDN BHD v. YOW HONG SOON [2020] 1 LNS 230 Brief Facts: HSRead more

    • Legal Update 11 of 2020

      By jhjadmin | 0 comment

      Can accused persons who are convicted of disobeying the Movement Control Order appeal for alternative punishment instead of imprisonment in the interest of justice? Case: CHIN CHEE WEI & ANOR V PP [2020] 1 LNSRead more

    • Legal Update 12 of 2020

      By jhjadmin | 0 comment

      Can a foreign national have a permanent contract of employment? Case: AHMAD ZAHRI MIRZA ABDUL HAMID v. AIMS CYBERJAYA SDN BHD [2020] 1 LNS 494 Brief Facts: Ahmad, an expatriate, received a letter of appointmentRead more

    • Legal Update 13 of 2020

      By jhjadmin | 0 comment

      Can the giving of legal advice by an adjudged bankrupt, whose practising certificate has been suspended, amount to practising law in contravention of the Legal Profession Act 1976? Case: DARSHAN SINGH KHAIRA v. ZULKEFLI HASHIMRead more

    • Legal Update 14 of 2020

      By jhjadmin | 0 comment

      Can individual parcel owners enforce rights relating to common property on their own behalf? Case: SYARIKAT EAST COAST & ORS v. MAKNA MUJUR SDN BHD & ORS [2020] 2 MLRA 440 Brief Facts: Syarikat EastRead more

    • Legal Update 15 of 2020

      By jhjadmin | 0 comment

      When is the point of time when a debtor is considered to be unable to pay his debts? Case: AFFIN BANK BERHAD V. ABU BAKAR ISMAIL [2020] 2 MLRA 99 Brief Facts: Affin Bank BerhadRead more

    • Legal Update 16 of 2020

      By jhjadmin | 0 comment

      Whether an article containing allegations of corrupt practices and giving of bribes was defamatory to the owner of an education institution? Case: EAGLE ONE INVESTMENT LTD & ORS V. ASIA PACIFIC HIGHER LEARNING SDN BHDRead more

    Leave a Comment

    Cancel reply

    Your email address will not be published. Required fields are marked *

    NextPrevious

    JHJ Bulletin

    • S.Jeyaraman: The Magic of Memory
    • Andreas Dorn: Your Unconscious Mind on Change and Money

    Legal Updates

    • Legal Update 9 of 2026
    • Legal Update 8 of 2026
    • Legal Update 7 of 2026
    • Legal Update 6 of 2026
    • Legal Update 5 of 2026
    • Legal Update 4 of 2026
    • Legal Update 3 of 2026

    Legal Cauldron

    • 2
      0

      Legal Cauldron 1 of 2016

      Click here to view & download
    • 2
      0

      Legal Cauldron 2 of 2015

      Click here to view & download
    Copyright 2017 All Rights Reserved Contact Us         Like & Follow Us On:Facebook | Instagram | LinkedIn Disclaimer | Privacy Policy
    • About
    • Our People
      • Partners
      • Consultant
      • Associates
    • Practice Areas
    • Publications
      • Legal Updates
      • Our Reported Cases
      • Legal Cauldron (Temporary suspended)
      • Articles
      • News & Bulletin
    • We Care
    • Careers
    • Contact Us
    Jayadeep Hari & Jamil