Quek Jian Long provides a commentary on the recent decision by the Federal Court on 8 March 2022 in Thomas Jothinayagam Harris v The Perak Chinese Maternity Association & Anor (Civil Appeal No.: 08-(f)-296-08/2021(A)). The Perak Chinese Maternity Association was represented by our Senior Associate, Witter Yee and Associate, Quek Jian Long.
 
Key point
 
The relationship between a private hospital and a medical professional practising therein must be determined from the relevant contractual terms and the factual circumstances.
 
Background
 
This is an update to our earlier e-Alert dated 6 August 2021, “Court of Appeal upheld High Court’s decision to quash Industrial Court award of RM905,511.32 to a resident consultant anaesthetist.” The e-Alert can be accessed here.
 
Brief Facts
 
The background facts concerning the proceedings from the Industrial Court up to the Court of Appeal have been set out in our earlier e-Alert.
 
Briefly, the applicant, Thomas Jothinayagam was engaged as a resident consultant Anaesthetist by the Perak Chinese Maternity Association (“PCMA”) at its hospital. Upon expiration of the term of the contract, PCMA did not renew the engagement. As a result, Thomas Jothinayagam made a representation under section 20 of the Industrial Relations Act 1967 for unfair dismissal. The Industrial Court found Thomas Jothinayagam to be a workman and awarded him a sum of RM905,511.32 for unfair dismissal. The Industrial Court’s decision was subsequently quashed by the High Court by way of judicial review and the latter was affirmed by the Court of Appeal.
 
Leave Application Proceedings at the Federal Court
 
Dissatisfied, Thomas Jothinayagam applied for leave to appeal to the Federal Court on three questions of law which in essence concerned the test applicable to the determination of the relationship between a private hospital and a medical professional practising therein. The three leave questions are:

In opposing the motion for leave, PCMA argued that the law is clear that a medical professional  practising in a private hospital is an independent contractor and the working relationship must be determined from the relevant contractual terms between the parties and the factual circumstances of the case as laid down in the two Federal Court decisions of Dr Hari Krishnan & Anor v Megat Noor Ishak Bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281 and Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 695.
 
The panel of three judges, chaired by Chief Justice YAA Tun Dato’ Seri Utama Tengku Maimun Tuan Mat with YA Dato’ Zabariah Mohd Yusof and YA Dato’ Mohamad Zabidin Mohd Diah, unanimously dismissed Thomas Jothinayagam’s leave application and affirmed the test formulated in its two earlier decisions in Dr Hari Krishnan & Anor v Megat Noor Ishak Bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281 and Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 695.
 
Comment
 
The decision of the Federal Court cements the importance of the terms of a written agreement in determining the relationship of a medical professional and the private hospital where he carries on his practice.
 
Key Contacts
 
If you have any queries, please contact our Senior Associate Witter Yee (witter.yee@skrine.com) or Associate Quek Jian Long (jian.long@skrine.com).