Brief Facts
Thomas Jothinayagam was engaged as a resident consultant anaesthetist by The Perak Chinese Maternity Association (“
PCMA”) at the Perak Chinese Maternity Hospital (“
Hospital”).
PCMA and Thomas Jothinayagam had entered into an engagement agreement. Upon expiration of the term of employment, PCMA did not renew the engagement. Thomas Jothinayagam applied made a representation under s.20 of the Act for unfair dismissal which was referred to the Industrial Court.
At the Industrial Court
The Industrial Court found that Thomas Jothinayagam was a workman and awarded him a sum of RM905,511.32 for unfair dismissal.
At the High Court
Dissatisfied PCMA applied for judicial review of the Industrial Court’s decision.
At the High Court, the learned Hashim Hamzah J quashed the Industrial Court award. His lordship held that a representation on dismissal pursuant to s. 20 of the Act was only applicable to a ‘workman’.
His lordship in arriving at his decision held as follows:
“[33] Although the determination of this issue is a question of fact which very much depends on the facts of each individual case, I am guided by these authorities in coming to my decision, namely:
(a) Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685; [2017] 10 CLJ 529 (FC);
(b) Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281; [2018] 3 CLJ 427 (FC)…”
Applying these two recent Federal Court decisions, his lordship said:
“Coming back to the facts in the present case, in order to ascertain firstly the nature of the relationship between the applicant and the first respondent, the salient terms of the second agreement must firstly be perused.”
His lordship after reviewing all the clauses of the second agreement held that the relationship between PCMA and Thomas Jothinayagam did not fall within the definition of a workman under the Act.
At the Court of Appeal
On appeal by Thomas Jothinayagam, the Court of Appeal dismissed the appeal and held that the High Court neither erred in law nor facts and there was no need for appellate intervention.
Comment
This case emphasises the importance of the terms of a written agreement entered between a doctor and a hospital in determining whether the doctor is an independent contractor or an employee of the hospital.
Key Contacts
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