AHMAD ZAHRI MIRZA ABDUL HAMID v. AIMS CYBERJAYA SDN BHD

[2020] 3 MLRA 475

AHMAD ZAHRI MIRZA ABDUL HAMID v. AIMS CYBERJAYA SDN BHD
Federal Court, Putrajaya
Tengku Maimun Tuan Mat CJ, Mohd Zawawi Salleh, Idrus Harun, Nallini Pathmanathan, Abdul Rahman Sebli FCJJ
[Civil Appeal No: 02(f)-11-02-2019(W)]
28 May 2020

JUDGMENT

Mohd Zawawi Salleh FCJ:

Introduction

[1] The key issue in this appeal is whether the appellant/claimant was employed on a fixed-term contract or was a permanent employee of the respondent at the material time. The Industrial Court and the High Court found that the appellant/claimant was a permanent employee of the respondent and his dismissal from his employment was without just cause or excuse. On appeal, the Court of Appeal set aside the decision of the High Court and allowed the respondent's appeal.

[2] On 7 January 2019, this court granted the appellant/claimant leave to appeal on the following questions of law:

(i) Whether a need for work permit is a material consideration in determining whether an employment contract is a genuine fixed- term contract; and

(ii) Does a contract of employment which is renewed successively without application by the employee and without any intermittent breaks in between, is in reality a permanent employment.

The Factual Background And Antecedent Proceedings

[3] We do not propose to narrate the detailed factual background and antecedent proceedings of the case. They may be recounted in chronological order as follows:

End of 2008 The appellant/claimant was invited to join, invest and then became a shareholder of the AIMS Data Centre 2 Sdn Bhd ("ADC").

27 May 2009 The appellant/claimant received a letter of appointment from ADC for the position of the Consultant. The letter was signed by Gan Te- Shen, the Chief Executive Officer ("CEO") of ADC.

26 August 2009 The appellant/claimant received a contract for consultancy services from ADC for a fixed-term, ie from 1 October 2009 to 30 September 2010 ("original contract"). On the same day, the appellant/claimant received a letter of appointment as Vice President Product Development of ADC, from 1 October 2009. According to this original contract, the appellant/claimant would be entitled for performance bonus scheme. The contract and the letter were signed by the CEO of ADC.

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