Industrial Court sides with security guard, dismisses fixed-term contract reasoning

 

A former security guard was awarded RM37,270.50 last week after the Ipoh Industrial Court found his former employer failed to prove his dismissal was with just cause.

The court found claimant S Sri Kavin’s former employer Rahman Hydraulic Tin Sdn Bhd had disguised a permanent position as a fixed-term contract and its claim of Sri Kavin's redundancy was unfounded.

“The company’s conduct of dismissing the claimant shows unfair labour practices,” Industrial Court chairperson Augustine Anthony said in his decision issued on Aug 11.

As such, the claimant was awarded the sum including back wages and compensation in lieu of reinstatement, taking into account that Sri Kavin was jobless for six to seven months after dismissal.

Sri Kavin was represented by Varathan Panneer Selvam and L Danaletchumi, who is also a PSM activist.

Speaking to Malaysiakini, Varathan said the decision could positively impact other contract workers, who are at risk of being turfed out using the same excuse.

“This decision shows that a fixed-term contract cannot be abused where the nature of the job is permanent. For example, security guards, cleaners, gardeners, and more,” he said.

Renewal of contract recommended

Sri Kavin was employed on July 2, 2018, by way of a contract of employment to monitor the CCTV in the company’s work area in Gerik.

During the trial, the company said Sri Kavin’s employment was on a fixed-term contract for one year.

However, the plaintiff argued that the nature of his job was permanent and he was assured by the interviewers that the contract will be renewed once it expires.

Two days before the expiry of his contract of employment, Sri Kavin’s body measurements were taken for issuance of new uniforms - a move he argued gave him legitimate expectation that his contract could be renewed.

Towards the end of Sri Kavin’s contractual period, a performance appraisal was carried out and the guard’s superior recommended that his employment be renewed.

However, the employer issued a letter of termination without any warning on July 1, 2019, the court heard.

In making his decision, Anthony reviewed the employment interview report, offer letter, and appraisal form, and found that the contract of employment is permanent in nature though disguised as a fixed-term contract.

The company also attempted to suggest that Sri Kavin’s position in the company is no longer needed as the installation of GPS tracking system has made his role redundant.

However, the court found no evidence of genuine redundancy.

“There is also no evidence that a genuine redundancy situation had arisen,” the Industrial Court chairperson said.

The company also offered no other reasons for the dismissal.

In a statement on the case, PSM said this shows employers cannot easily dismiss workers, using the fixed-term contract as an excuse.

“Workers deserve and should demand justice against this exploitative labour practice,” it said. - Mkini