KHAIRU NORLIZA KHAIRUDIN V. KOOL FM RADIO SDN BHD
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Khairu Norliza Khairudin [2020] MELRU 396 v. Kool Fm Radio Sdn Bhd pg 1 KHAIRU NORLIZA KHAIRUDIN v. KOOL FM RADIO SDN BHD Industrial Court, Kuala Lumpur Augustine Anthony Award No: 396 Of 2020 [Case No: 4/4-301/19] 14 February 2020 Case(s) referred to: Aminah Zaiton Amir & Anor v. Star RFM Sdn Bhd [2008] 1 MELR 209; [2008] 1 ILR 562 (refd) Dr James Alfred (Sabah) v. Koperasi Serbaguna Sanya Bhd (Sabah) & Anor [2001] 1 MELR 17; [2001] 1 MLRA 305; [2001] 3 MLJ 529; [2001] 3 CLJ 541 (refd) Han Chiang High School Penang Han Chiang Associated Chinese Schools Association and National Union Of Teachers In Independent Schools, W M'sia [1988] 2 MELR 637; [1988] 2 ILR 611 (refd) Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia & Anor [1995] 1 MELR 1; [1995] 2 MLRA 435; [1995] 3 MLJ 369; [1996] 4 CLJ 687; [1996] 3 AMR 3693 (refd) Ireka Construction Berhad v. Chantiravathan Subramaniam James [1995] 1 MELR 373; [1995] 2 ILR 11 (refd) K A Sanduran Nehru Ratnam v. I-Berhad [2006] 1 MELR 74; [2006] 1 MELR 114; [2006] 2 MLRA 467; [2006] 2 MLRA 778; [2007] 2 MLJ 430; [2007] 1 ILR 257; [2007] 1 CLJ 347 (refd) Lian Ann Lorry Transport & Forwarding Sdn Bhd v. Govindasamy Palanimuthu [1982] 1 MELR 1; [1982] CLJ 173 (refd) Malaysia Airlines Bhd v. Michael Ng Liang Kok [2000] 2 MELR 302; [2000] 3 ILR 179 (refd) Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 2 MLRA 23; [1995] 3 MLJ 537; [1995] 4 CLJ 449; [1996] 1 AMR 049 (refd) Omar Othman v. Kulim Advanced Technologies Sdn Bhd [2019] 6 MLRA 756; [2019] 1 MLJ 625; [2019] 7 CLJ 18 (refd) Wong Mei Yoke v. Tien Wah Press (Malaya) Sdn Bhd [2017] 3 MELR 709; [2018] 1 ILR 20 (refd) Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 1 MELR 4; [2002] 1 MLRA 188; [2002] 3 MLJ 129; [2002] 3 CLJ 314; [2002] 3 AMR 2898 (refd) Legislation referred to: Industrial Relations Act 1967, ss 2 ,20, 30(5), (6A) Counsel: For the claimant: S Muhendaran (together with Chong Wan Loo); M/s Muhendaran Sri Khairu Norliza Khairudin pg 2 v. Kool Fm Radio Sdn Bhd [2020] MELRU 396 For the company: Abdullah Abdul Karim (together with Prema Kesavan); Malaysian Employers Federation (MEF) [Order accordingly.] AWARD Augustine Anthony: [1] The parties in this matter filed their respective written submissions dated 18 November 2019 (Company's Written Submissions), 25 November 2019 (Claimant's Written Submissions), 2 December 2019 (Claimant's Written Submissions in Reply) and 0.12.2019 (Company's Written Submission in Reply). [2] This Court considered all the notes of proceedings in this matter, documents and the cause papers in handing down this Award namely:- (i) The Claimant's Amended Statement of Case dated 13 September 2019; (ii) The Company's Amended Statement in Reply dated 23 September 2019; (iii) The Claimant's Rejoinder dated 11 June 2019; (iv) The Claimant's Bundle of Documents - CLB1, CLB2 & CLB3; (v) The Company's Bundle of Documents - COB1; (vi) Claimant's Witness Statement - CLW1-WS; (vii) Company's Witness Statement - COW1-WS (Anida binti Mohd Tahrim); and (viii) Company's Witness Statement - COW2-WS (Sathiaseelan Paul Thurai). Introduction [3] The dispute before this Court is the claim by Khairu Norliza binti Khairudin (the Claimant) that she was dismissed without just cause or excuse by Kool FM Radio Sdn Bhd (the Company) on the 8 August 2018. [4] On the 22 December 2013 the Claimant became the first prize winner in a TV reality show organized by an entity known as Media Prima Berhad. Arising out of this achievement, the Claimant was offered employment as Radio Announcer in a programme known as Radio Hot FM by an entity known as Synchrosound Studio Sdn Bhd which is wholly owned subsidiary of Media Prima Berhad. The Claimant commenced employment with Radio Hot Khairu Norliza Khairudin [2020] MELRU 396 v. Kool Fm Radio Sdn Bhd pg 3 FM commencing January 2014. The Claimant was then offered a written contract of employment for a period of one year beginning 1 April 2014 to 31 March 2015 by Synchrosound Studio Sdn Bhd with a further extension of this contract until 31 March 2016. Before the expiry of this contract of employment, the Claimant was offered another contract of employment by the same entity on the 8 March 2016 with the commencement date of the contract from the 1 April 2016 to 31 March 2019 wherein in this contract of employment the Claimant was assigned to work as Radio Announcer by Synchrosound Studio Sdn Bhd for an entity known as Radio Kool FM. The Claimant commenced employment with Radio Kool FM on the 3 March 2016 notwithstanding the contract of employment dated 8 March 2016. [5] Sometime in mid year 2017, the Claimant alleged that one Puan Nik Nor Azura Nik Mahmood had told the Claimant that the Claimant must now set up a company in order to continue her employment as Radio Announcer with Radio Kool FM wherein the Claimant would also be required to enter a new contract. Left with no choice in order to continue her employment with Radio Kool FM, the Claimant complied with what she was directed to do in that the Claimant had now set up a company known as LKD Empire Sdn Bhd. On the 27 December 2017 Kool FM Radio Sdn Bhd (the Company) entered into an agreement with LKD Empire Sdn Bhd wholly owned by the Claimant for the service of Radio Announcer Performance Agreement (The Said Agreement) wherein the commencement period of this contract was from 1 December 2017 to 31 March 2019 being the same expiry time as stipulated in the agreement between the Claimant and Synchrosound Studio Sdn Bhd dated 8 March 2016 which agreement was never terminated nor brought to an end by the parties. [6] By a letter dated 1 August 2018, the Company invoked clause 7.3 of The Said Agreement between the Company and LKD Empire Sdn Bhd in order to terminate the Radio Announcer Performance service rendered by the Claimant. The said clause 7.3 under The Said Agreement stipulates that the Company may terminate The Said Agreement at any time by giving 7 days' prior notice without giving any reasons and without any liability for compensation and/or damages for the termination. Under clause 6 of The Said Agreement the Radio Announcer is also deemed an independent contractor who is not to be construed as an employee of the Company. Under The Said Agreement between the Company and LKD Empire Sdn Bhd, the Claimant was paid a remuneration of RM7,000.00 per month which sum was paid directly and personally to the Claimant. [7] The Claimant now claims that she is a workman within the definition of s 2 of the Industrial Relations Act 1967 (The Act) and was employed under a contract of service and that she had been dismissed without just cause or excuse. The Company on the other hand contends that the Claimant was an independent contractor under a contract for services and as such is not a workman falling within the definition under The Act. [8] The Claimant gave evidence under oath and remained the sole witness for her case. The Company's evidence was led by COW1 (Anida Mohd Tahrim) Khairu Norliza Khairudin pg 4 v. Kool Fm Radio Sdn Bhd [2020] MELRU 396 who is the Group General Manager in charge of content, production and marketing of the Company and COW2 (Sathiaseelan Paul Thurai) who is the Chief Executive Officer who is responsible for the issuance of the termination letter to the Claimant. The Claimant's Case [9] The Claimant's case can be summarised as follows:- (i) On the 22 December 2013 the Claimant became the first prize winner in a TV reality show organized by an entity known as Media Prima Berhad. (ii) Arising out of this achievement, the Claimant was offered employment as a Radio Announcer in a programme known as Radio Hot FM by an entity known as Synchrosound Studio Sdn Bhd which is wholly owned subsidiary of Media Prima Berhad. (iii) The Claimant commenced employment with Radio Hot FM commencing January 2014. (iv) The Claimant was then offered a written contract of employment for a period of one year beginning 1 April 2014 to 31 March 2015. by Synchrosound Studio Sdn Bhd with a further extension of this contract until 31 March 2016. (v) Before the expiry of this contract of employment, the Claimant was offered another contract of employment by the same entity on the 8 March 2016 with the commencing day the of the contract from the 1 April 2016 to 31 March 2019 wherein in this contract of employment the Claimant was assigned to work as Radio Announcer by Synchrosound Studio Sdn Bhd for an entity known as Radio Kool FM. (vi) The Claimant commenced employment with Radio Kool FM on the 3 March 2016 notwithstanding the contract of employment dated 8 March 2016 which was never terminated. (vii) The Claimant alleged that sometime in mid year 2017, one Puan Nik Nor Azura Nik Mahmood had told the Claimant that the Claimant must now set up a company in order to continue her employment as Radio Announcer with Radio Kool FM wherein the Claimant would also be required to enter a new contract. (viii) As the Claimant was left with other no choice in order to continue her employment with Radio Kool FM, the Claimant complied with what she was directed to do in that the Claimant had now set up a company known as LKD Empire Sdn Bhd.