Supposedly a singer contracts to sing on a particular night, but he somehow refused to sing on that particular night as contracted, proceedings to compel him to perform his part of obligation is perhaps possible.
Now supposedly he sang on that particular night but his voice was either too loud, too soft, too quiet, too quick, too slow or too sharp, could an employer get his contract of service specifically enforced against the singer? In other words, could an employer get an order of specific performance of a contract for personal service?
General principles of specific performance and its non-applicability to employment contracts
Specific performance is an order of court governed under the Specific Relief Act 1950 compelling one party to perform his contractual obligation. While the Act does not expressly prohibit the relief of specific performance to contracts for personal service, illustration (a) to Section 20(1)(b) refers to contracts for personal service. Therefrom, our courts have been treating it as a general principle and applying them in toto.
Rationale for non-application in employment contracts
Rationale for such non-application of the relief in employment contracts are observed in the English case of Johnson v Shrewsbury and Birmingham Rly Co. Firstly, providing service is closely connected to the personal qualification of an employee, making it very subjective and therefore requiring constant supervision of the courts. Secondly, because parties should not be compelled to be in a relationship that they have opted out from.
In the illustration above where a singer was contracted to sing as the facts in GH Giles & Co Ltd v Morris Meggary J in refusing specific performance had correctly observed that “for who could say whether the imperfection of performance were natural or self-induced”?
In Malaysia, the Federal Court decision of Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol Negeri Sembilan is the authority for non-application of specific performance to contracts for personal service. It was held:
“[a] that the court will not order specific performance of a contract of service between master and servant, except  where a claimant before an Industrial Court claiming reinstatement on ground of dismissal without just cause or excuse under Section 20 of the Industrial Relations Act 1967; and  where a holder of any public office as set out in Article 132 of the Federal Constitution.”
The eloquence of this passage distils a direction on the lower courts to similarly apply the general rule against specific performance to contracts for personal service without looking into the requirements under Specific Relief Act of whether the contracts are in minute details or dependent on personal qualification, as can be seen from the High Court decision of Mohd Sobri Che Hassan v Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor. The Applicant’s application to quash the decision to dismiss him was dismissed following the general rule against specific performance as enunciated in Mohd Ahmad (supra). However, his appeal to the Court of Appeal against the dismissal was allowed, albeit on different grounds and Mohd Ahmad (supra) was distinguished because the Applicant was not praying for specific performance, but a review. Let’s see whether it goes to further appeal.
The rationale – an analysis
While the relief of specific performance is not applicable to employment contracts, reinstatement which has the same effect as specific performance in reinforcing a contract between an employer and an employee is on the other hand recognized as a remedy under section 20 of the Industrial Relation Act 1967. In fact, reinstatement was considered by Abdoolcader J as “a serious inroad into the general rule” in his decision of Sivaperuman v Heah Seok Yeong Realty Sdn Bhd. Having the same effect, why the different treatment? A chasm between these two reliefs would require a conciliation.
The rationale given in Johnson’s case (supra) to justify refusal of the remedy of specific performance in contracts for personal service where neither an employer nor an employee should be compelled to be in a relationship which they have opted out of, seems to be out of place by today’s working standards. Where an order for reinstatement in favor of a dismissed employee being made, isn’t the employer being similarly compelled to in be in a relationship which they have opted out from? Given, an employer is always at liberty to file for a review to challenge such decision, but until it being quashed, that is the effect.
While our courts have religiously followed the general rule against specific performance in employment contracts, we see radical developments overseas challenging the general rule. In Siphokazi Somi v Old Mutual Africa Holdings (Pty) Ltd, an employee sought to declare her dismissal to be unlawful for breach of contract instead of unfair dismissal as she wished to enforce the provisions of the contract. In allowing the relief of specific performance to the dismissed employee, the Court observed:
“It is well-established that the remedy of specific performance in the case of an alleged contractual breach of the employment contract is a separate remedy from the unfair dismissal remedy provided for in the LRA. The right not to be unlawfully dismissed in the terms of the common law remained even after the introduction of the unfair dismissal concept by the Labour Relations Act….It is well-established in law that an employee whose contract of employment has been unlawfully terminated by the employer has an election to either accept the breach of contract and sue for damages or enforce the contract. The remedy in the case where the employee enforces the contract in the face of a breach would generally be specific performance.”
The purpose of this analysis is not to suggest that a dismissed employee should go to civil courts for specific performance instead of filing a representation for reinstatement at an Industrial Court, bearing in mind specific performance requires a much higher threshold. An applicant has to establish breach of contract, show balance of convenience in his favor plus establishing the fact that the contracts are not dependent on personal qualification. However, should an applicant choose to go that path, I see no reason why he should be denied from exercising his right to either accept the breach and sue for damages, or to enforce the terms of contract by way of specific performance when a breach of employment contract occurs.
In addition, the breach of employment contracts is not limited to termination of contract. A breach may occur to any of the terms therein including conditions, duties, rights and benefits that should be allowed to be specifically enforced, subject of course to observance under Specific Relief Act 1950, otherwise what is the point of having conditions, duties, rights and benefits in an employment contract if they cannot be specifically enforced.
 (1853) De GM & G 914, 43 ER 358
  1 ALL ER 960
  3 CLJ 135
 Section 20(1)(b)
  2 ILR 1, HC
  2 CLJ 715, CoA
  1 MLJ 150, FC
 Case No. 12828/14, July 3, 2015
 Paragraph  to  to Somi’s decision
 Section 20(1)(b)