Justice Lee Swee Seng, who chaired a three-member bench, however, reduced the compensation awarded to Khairu Norliza Khairudin from RM133,000 to RM56,000, holding she was only entitled to wages for the unexpired fixed contractual term of eight months.
He said Kool FM Radio Sdn Bhd’s decision to convert Khairu from employee to independent contractor was not justified as she was not given a choice in the matter.
“In terms of work, she still had to clock in at normal hours and replace other radio announcers in case of emergency,” he said in allowing Khairu’s appeal against a High Court ruling which overturned the Industrial Court’s award.
Lee, who sat with Justices Azimah Omar and Wan Ahmad Farid Wan Salleh, said the radio station owned by Media Prima Berhad had a large degree of control over Khairu.
He said her duties were an integral part of the employer’s business and the court was of the view there was no need to convert her status to that of an independent contractor.
“The company proposed the independent contractor agreement to allow them to terminate her service if they do not require her services.
“This court finds the agreement is, in reality, a contract for service and therefore the appellant (Khairu) is a workman under Section 2 of the IRA,” he added.
He said her early termination was a dismissal without just cause and excuse.
“We, however, reduce the award to the balance contract period which is eight months at her monthly salary of RM7,000,” he added.
Lawyers Muhendran Suppiah and Chong Wan Loo represented Khairu while Farah Dini Zaini and Aida Yasmin Cheree Mohamad acted for the company.
According to the facts of the case, Khairu was initially employed on a yearly contract that ran from 2013 and 2016. She was then given a second three-year contract which was scheduled to expire in 2019.
However, in July 2017, she formed a company – LKD Empire Sdn Bhd – at her employer’s request. Kool FM Radio then entered into a contract for service with her for the period Dec 1, 2017 to March 1, 2019.
She was sacked from employment on Aug 8, 2018.
The Industrial Court ordered the employer to pay Khairu RM105,000 in back wages and RM28,000 in compensation in lieu of reinstatement, but the sum was reduced by the Court of Appeal today.