KETUA PENGARAH PERTUBUHAN KESELAMATAN SOSIAL v MOHAMMAD HAKIMI BIN AHMAD MAHIUDIN

Case Significance

Confirms that voluntary participation in an employer's sports activity, which carries no compulsion or sanction and adds nothing to work performance, does not give rise to an 'employment injury' under section 2(6) of the Employees' Social Security Act 1969, following Gow Soo Tan.

This High Court decision at Shah Alam is an appeal by the Director-General of the Social Security Organisation against a decision of the Social Security Appellate Board that had recognised an employee's injury as an employment injury under the Employees' Social Security Act 1969 (Act 4). The respondent, a factory operations staff member, was injured at around 9.00 pm outside his workplace building while training in football in preparation for a competition at a sports carnival organised by his employer every two years. The Appellate Board had found the injury to be an employment injury under section 2(6), reasoning that it occurred while the respondent trained for the employer's competition and that he took part to obtain an excellent record for salary increments and bonuses. On appeal, the Director-General contended that the injury did not meet the statutory definition, because participation was not compulsory, added no value to the respondent's work performance, and was undertaken at the respondent's own choice and risk; the respondent himself had confirmed during the inquiry that he would face no action if he did not take part. The court examined the elements of the definition of employment injury and the authority in Ketua Pengarah Pertubuhan Keselamatan Pekerja v Gow Soo Tan, and adopted the guidance in Halsbury's Laws of England that whether there has been an industrial accident is ultimately a question of applying the particular facts to the composite phrase "accident arising out of and in the course of employment." It held that the Appellate Board had erred by focusing narrowly on the employer's knowledge of the training and the respondent's motive of a good performance record, while ignoring the other elements of the definition, and by failing to follow Gow Soo Tan. Since the respondent's participation was voluntary and would attract no sanction, the injury did not arise out of and in the course of his employment, and he failed to meet the definition under section 2(6). The court allowed the appeal.