Incorporating Employment (Amendment) Act 2022
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Award No:434/2014
Company:BJ Services (M) Sdn Bhd
Claimant:  Sockalingam A/L R.N. Dharmalingam 
The employee was employed by Sarku-Nowsco Well Services Sdn Bhd on Jan 1, 1992. On Sept 28, 2001 there was a buyout of Sarku-Nowsco by the company.

By letter dated Dec 18, 2007, the company notified the employee that as he had attained the retirement age of 56 years, the company was exercising its option to retire his services with effect from Jan 15, 2008 and his last day will be Jan 14, 2008.

After retirement, the employee was offered a fresh contract for a fixed term of one year from Feb 1, 2008 to Jan 31, 2009, which he had signed and accepted.

Upon expiry of the contract, the company employed him on a further fixed term contract of six months until Jul 31, 2009. After the extension lapsed, the company exercised its discretion not to renew his services and the employee was informed accordingly vide company’s letter dated June 22, 2009.

The issues before the court was whether the employee was dismissed by the company or whether upon his retirement he was placed on a genuine fixed term contract at the expiry of which the company decided not to renew it; and whether the dismissal, or if there was a genuine fixed term contract, was with just cause or excuse.

The company contended that the issue of dismissal does not arise in the circumstances as after the lapse of the six months extension on Jul 31, 2009, it had exercised its discretion not to renew the services of the employee.

It was also the company’s contention that the allegation that the employee was wrongfully retired on Jan 15, 2008 is an afterthought. It was of the view that the company did not at any material time agree to employ the employee for a further five years after his retirement.

The employee contended that upon reaching the age of 56 he had continued to work without any termination notice until he was orally informed on Feb 1, 2008 by COW1 that he can continue to work until Jan 31, 2013. The employee was therefore seeking to enforce the agreed terms that he should be employed until Jan 31, 2013 together with his retirement benefit.
This is a case involving a fixed term contract. After the expiry of the six months extension on Jul 31, 2009, the company had exercised its discretion not to renew the services and he was informed by way of letter dated June 22, 2009.

The Court of the view that after the extension had lapsed, this essentially had put an end to the employment relationship between the company and the employee.

Based on the evidence given by COW1, the fact that COW1 prepared the employment contract in respect of the employee does not mean that COW1 had the authority to decide on issues of extension of the employee’s employment.

Furthermore, when the employee was notified of his retirement by letter dated Dec 18, 2007, he did not object to his retirement. In the circumstances, the issue of dismissal does not arise.

Claim for unfair dismissal dismissed.
unfair dismissal, retirement, fixed term contract
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