Ang Bee Ling v Ng Eng Kian t/a NEK & Associates

Appellant(s): Ang Bee Ling

Respondent(s): Ng Eng Kian T/a Nek & Associates

• YA Dato' Dr Alwi Bin Abdul Wahab
• YA Datin Paduka Evrol Mariette Peters
• YA Dato' Sri Latifah Binti Haji Mohd Tahar

• The appellant was employed by a company (NKHAS) which, under a secondment/lending arrangement, loaned her and 15 other employees to the respondent's audit firm branch to service clients referred on a commission basis, with NKHAS retaining administrative control over matters such as leave, pay increments and insurance.
• When the respondent closed the branch, he issued a backdated letter of appointment (dated back to 2019 but actually signed in 2022) purportedly appointing the appellant as his own employee, and then issued an immediate transfer instruction requiring staff to report to his head office; the appellant did not comply, citing her employment with NKHAS and the questionable circumstances surrounding the backdated letter.
• Following a domestic inquiry which the appellant did not attend, the respondent found her guilty of misconduct, dismissed her, and claimed one month's salary in lieu of notice; the Director General of Labour (KPTK) allowed this claim, and the High Court dismissed her appeal, prompting this further appeal.

• Whether the KPTK had jurisdiction under section 69(3) of the Employment Act 1955 to entertain a complaint, given that the provision requires the complaint to be made by the employee (not the employer) and requires an established employer-employee relationship as a jurisdictional fact.
• Whether a third-party "hirer" of seconded/loaned employees has legal authority to conduct disciplinary proceedings and dismiss such employees, or whether that power remains with the original employer.
• Whether an employer who dismisses an employee for misconduct under section 14(1) can simultaneously claim indemnity in lieu of notice under section 13(1), and whether absenteeism under section 15(2) automatically amounts to self-termination by the employee.

• The Court held that the appellant remained the employee of the original lending company throughout, since payment of wages and statutory contributions by the respondent did not determine true employer status in a secondment arrangement, and the original contract of service was never terminated or novated; consequently the backdated appointment letter was void for want of fresh consideration and improper purpose.
• The Court found that the KPTK acted without jurisdiction: section 69(3) requires a complaint by the employee (not the employer), and as a third-party hirer the respondent had no disciplinary or dismissal power over the appellant in any event.
• The Court ruled that sections 13(1) and 14(1) of the Employment Act are mutually exclusive — an employer who dismisses for misconduct under section 14(1) cannot also claim indemnity under section 13(1), and doing so constitutes impermissible double punishment; absenteeism under section 15(2) does not equate to self-termination, and since the respondent himself effected the dismissal, he was not entitled to claim indemnity from the appellant. The appeal was allowed, the High Court's decision set aside, and costs of RM50,000 awarded to the appellant.