Fixed Term or Permanent Employee: One Size Does Not Fit All
The recent decision of the Industrial Court in Azalina binthi Adham v. Bursa Malaysia Berhad (Award No. 1087 of 2023) discusses factors considered in determining that the claimant was employed under a genuine fixed term contract which came to end through the natural effluxion of time, and not deemed as a permanent employment.
Claimant’s Employment History
In finding that the claimant was employed under a genuine fixed term contract, the Industrial Considered distinguished Ahmad Mirza1 and Han Chiang High School2 , and took into account the following factors: -
(1) the fixed term contracts offered to the claimant were not successive;
(2) there was no automatic renewal of the fixed term contracts without the claimant’s application. For the third contract, the claimant underwent a specific assessment before she was appointed as the Chief Operating Officer;
(3) there were intermittent breaks between the three (3) fixed term contracts; and
(4) the nature of the claimant’s job were different for each fixed term contract.
The claimant relied on Ahmad Mirza to support her contention that, by virtue of the three (3) fixed term contracts issued to her, she was a permanent employee. In Ahmad Mirza, in concluding that the continuous renewal of the fixed term contract was, in fact, a permanent contract, the Federal Court considered the intention of parties, the employer’s subsequent conduct in the course of employment and the nature of the employer’s business and nature of work the employee is engaged for in deciding if the contract was fixed term contract.
This case reinforces the position that there is no straightforward formula in determining whether a contract is a genuine fixed term contract. Every case would depend on the careful scrutiny of its own facts and circumstances.
Written by Janice Leo & Adrienne Sena.
1 Ahmad Zahri Mirza Abdul Hamid v. AIMS Cyberjaya Sdn Bhd  6 CLJ 557
2 Han Chiang High School Penang, Han Chiang Associated Chinese Schools Association v. National Union of Teachers In Independent Schools, W. Msia  2 ILR 611