KUALA LUMPUR: An information technology engineer was awarded RM342,900 for wrongful dismissal after the Industrial Court ruled his failure to return to work as instructed following a prolonged recovery from Covid-19 was not in breach of contract.
Industrial Court of Malaysia chairman Eswary Maree was quoted by FMT that Sunshine Bread Sdn Bhd acted with pre-planned malice and made life difficult for Tan Seng Kok, before terminating his services summarily.
Tan had been admitted to a quarantine centre in Serdang, Selangor on June 30, 2021 where he was diagnosed as a Category 5 Covid-19 patient.
He had taken 183 days of hospitalisation, medical, annual and no pay leave which was suppose to end on April 26, 2022.
However, on April 4 that year, he attended an occupational safety and health check-up at a private clinic in Kajang, Selangor, upon instruction from his employers; and an occupational health doctor report certified him to be fit to work without restrictions or conditions.
Tan's employers sent him a letter dated April 22 which instructed him to return to work on April 27, adding he would otherwise be deemed to have abandoned his job..
On April 26, Tan, who was unable to access the company's online leave application system, emailed his employers seeking an additional 22 days of unpaid leave for physiotherapy and rehabilitation; and he informed his employers that would resume work on June 1.
However, the company terminated his employment via a letter on April 28, 2022 after he failed to show up for work the day before.
The company issued another letter the following day rejecting his leave application because it said that it was unreasonable and unsubstantiated.
In a 27-page award issued last week, Eswary said the leave rejection letter was an apparent afterthought as it was issued after Tan's services were terminated. She found that the company had planned to terminate his services earlier.
Eswary said Tan had to resort to applying for unpaid leave as the company had stated in its return-to-work letter that it would from that moment on only accept medical certificates issued by government hospitals.
This part of the company's conduct had clearly established the fact it had decided to make the claimant's life difficult, said Eswary.
The Industrial Court said the company's act of blocking Tan from accessing its online leave application system despite his ongoing struggle with post-Covid-19 symptoms, showed a pre-planned malice to terminate his employment.
Eswary also said the company ailed to allow Tan the option of working from home although it was in possession of a private hospital's medical report stating that he could return to work under an alternate working scheme.
She also said the OHD report, issued two months later, which certified Tan to be fit for work, was not conclusive.
The report had said that Tan still suffered from lethargy, lack of energy, shortness of breath on exertion, some derangement and several other medical conditions which were reversible in due time, including lung and kidney disease, and mild post-traumatic stress disorder.
Given the contents of the OHD report, Eswary said the company should not have rejected the claimant's application for unpaid leave.
She said the company had also acted too hastily to terminate Tan's employment without giving him the right to be heard.
By not giving Tan an opportunity to rebut the allegations of wilful insubordination and gross negligence of his duties, the company failed to comply with standards of procedural fairness, she said.
Eswary also said Section 15(2) of the Employment Act 1955 stipulates that workers who are continuously absent for more than two consecutive working days without prior leave from their employer are deemed to be in breach of their contracts of service.
"The company failed to prove that (Tan) had been absent for more than two consecutive working days to rely on the provision."
She said Tan had duly informed the company that he is applying for unpaid leave from April 27 until May 31 and will report to work on June 1 due to his health issue.
She said due to this, Tan had successfully rebutted the presumption he had abandoned his work.
Eswary said the company should have exercised sympathy, understanding and compassion and should have discussed Tan's request for unpaid leave with him given his medical condition.
Tan, whose last-drawn monthly salary was RM12,700, was awarded 24 months' back wages and an additional three months' salary as compensation in lieu of reinstatement.
Tan was represented by Lee Kai Yet and Lim Chun Weng.
His company was represented by Adam Abdullah, Adlina Atikah Zainal Abidin and Nur Khairunnisa Adriana Zainuddin.