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2022 MarsdenLR 1320
HIGH COURT MALAYA PULAU PINANG
MALAYSIA AIRPORTS SDN BHD – Appellant
Versus
SYAIFUL RIZUAN RADZI & ANOR – Respondent
[Judicial Review No: PA-25-8-02/2021]
The Industrial Court has the authority to assess punishment proportionality, allowing for reinstatement when dismissal is deemed excessively harsh relative to proven misconduct.
Headnote:(A) Industrial Relations Act 1967 – Section 20 – Judicial review of Industrial Court award – Employee dismissed for failing to provide medical certificates – Court found misconduct proven but reinstated employee based on proportionality of punishment – Dismissal deemed too harsh given medical condition – Compensation reduced from RM56,224.80 to RM11,244.96. (Paras 1, 12, 27)
(B) Powers of Industrial Court – Court empowered to assess proportionate punishment related to misconduct – Can replace employer's punishment if deemed disproportionate. (Paras 14, 15)
Facts of the case: The employee faced dismissal for failing to produce medical certificates for five sick leave days. The Industrial Court reinstated him citing his medical condition and deemed the dismissal disproportionate.
Findings of Court: Industrial Court's decision was upheld; reinstatement was justified based on the severity of the employee's illness and misconduct's context.
Issues: The primary question was whether the dismissal constituted just cause under section 20 of the IRA and if the punishment was proportional in light of the employee's medical condition.
Ratio Decidendi: The court affirmed that the punishment imposed must align with the misconduct severity; dismissal was disproportionate due to the employee's genuine health issues. (Paras 27, 30)
Result: Application dismissed.
JUDGMENT
Introduction
[1] The application before this Court was commenced by Malaysia Airports Sdn Bhd, the employer, for judicial review to quash the award of the Industrial Court dated 23 December 2020. The Industrial Court on a reference that the employee's dismissal is without just cause and excuse pursuant to s 20 of the Industrial Relations Act 1967 ("the IRA ") found that the misconduct complained against the employee was proven but held that the punishment of dismissal was harsh in the circumstances. The employee was reinstated with 80% reduction of the back-wages awarded as compensation - RM11,244.96 instead of RM56,224.80 which was the back-wages for two years.
[2] The review before me therefore concerns the doctrine of proportionality with regards to the punishment imposed by the Industrial Court for the proved misconduct. The employer challenged the decision contending that the misconduct was very serious warranting the punishment of dismissal.
[3] On 31 January 2022, I dismissed the application. This judgment contains the reasons for my decision.
Background
[4] It is not in dispute that the employee ("the 1st respondent") was employed by Malaysia Airports as an aviation security assistant in 2005. The 1st respondent said that sometime in April 2017 and thereafter he was treated from time to time at Hospital Langkawi for severe stomach pain and produced a medical report which had diagnosed him as suffering from gastrointestinal tuberculosis with small bowel obstruction on 20 September 2017. On 26 December 2017, the 1st respondent underwent a limited right hemicolectomy at the same hospital. The operation was a major operation and according to medical dictionary means the removal of the right side of the colon and attaching the small intestine to the remaining portion of the colon.
[5] The 1st respondent was discharged from hospital 5 days later with continuous follow up. However, he was readmitted from 9 January 2018 until 13 January 2018 and thereafter on 12 February 2018 until 14 February 2018 due to complications arising due to the stiches at the operated site which had given way. The 1st respondent said that he was under medication and treatment for another 9 months during which time he was continuously in and out of hospital.
[6] It was the employer's case that the 1st respondent was entitled to 28 days of sick leave in a year but had exceeded his entitlement for the year 2017 after an investigation in early 2018 revealed that he had been on sick leave. For that period of time action had been taken for the days the 1st respondent did not produce a medical certificate. The action was in the form of a warning letters issued on 27 March 2017 and 20 September 2017 not to repeat the misconduct and deduction of salary as recoupment for the excess sick leave by treating the same as no pay leave.
[7] The 1st respondent returned to work on 13 April 2018 after being on prolonged medical leave. Two months later, on 28 June 2018, he was given a show cause letter on 4 charges of misconduct that took place in the month of December 2017. The 1st respondent answered the show cause letter which resulted in a domestic inquiry being convened on 5 September 2018 on the following two charges of misconduct:
(1) giving the reason of being on sick leave for the days 2 December 2017, 10 December 2017, 14 December 2017, 22 December 2017 and 23 December 2017 but without producing any medical certificate as required by the terms of employment; and
(2) having disobeyed instructions not to repeat the same act of failing to produce medical certificates when on sick leave although being given a warning letter on 27 March 2017 and a stern warning letter on 20 September 2017.
[8] The 1st respondent was found guilty for both charges of misconduct and was notified of his dismissal in a letter dated 17 October 2018. It was Malaysia Airports position that it had lost confidence in the credibility and integrity of the 1st respond
