The employer must prove just cause for dismissal, and failure to follow fair procedures renders the dismissal unjustified.

AWARD

Eswary Maree

Reference

[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 (1967 Act) by the Director General of Industrial Relations emanates from the dismissal of Tan Seng Kok ("the Claimant") by Sunshine Bread Sdn Bhd ("the Company") on 27 April 2022.

[2] This Court will determine the issues before it and make its findings based on the pleadings, notes of proceedings, the relevant oral and documentary evidences, the cause papers and submissions. The following documents were filed before this Court :

(i) Statement of Case dated 19 October 2022;

(ii) Statement in Reply dated 5 December 2022;

(iii) Rejoinder dated 27 December 2022;

(iv) Claimant's Bundle of Documents: CLB-1;

(v) Claimant's Additional Bundle of Documents (1): CLB-2;

(vi) Claimant's Additional Bundle of Documents (2): CLB-3;

(vii) Company's Bundle of Documents: COB-1;

(viii) Company's Additional Bundle of Documents: COB-2;

(ix) Witness Statement of the Claimant, Tan Seng Kok: CLWS-1;

(x) Witness Statement of the Company, Chew Wen Chin: COWS-1;

(xi) Witness Statement of the Company, Ramesh a/l Gengan: COWS-2;

(xii) Witness Statement of the Company, Dr Rokeshwar Hari Dass: COWS-3;

(xiii) The Claimant's Written Submissions dated 21 September 2023;

(xiv) The Company's Written Submission dated on 22 September 2023;

(xv) The Claimant's Written Submission In Reply dated 6 October 2023; and

(xvi) The Company's Written Submission In Reply dated 13 October 2023

The Company's Case

[3] The Company employed the Claimant on 18 January 2019 as an IT Manager.

[4] Since the Covid-19 pandemic had hit the country, on 27 June 2021, the Company conducted a mandatory mass swab surveillance at Sunshine Factory for the employees and the Claimant was one of the employees who was tested.

[5] The Claimant's swab result that was reported on 28 June 2021 showed that the Claimant was positive for Covid-19.

[6] On 30 June 2021, the Claimant was sent to MAEPS Serdang Quarantine Centre to undergo mandatory quarantine.

[7] However, the Claimant began to suffer from Covid-19 symptoms such as high fever, difficulty in breathing and his blood oxygen level dropped below 90. The doctor on duty immediately sent the Claimant to the Sungai Buloh General Hospital (Sungai Buloh Hospital).

[8] The Claimant was admitted to the Intensive Care Unit (ICU) in Sungai Buloh Hospital where the Claimant was categorised as Category 5 Covid-19 patient on 18 July 2021.

[9] The Claimant then was transferred to Sunway Medical Centre (Sunway Hospital) at the Claimant's request.

[10] The Claimant was later discharged from Sunway Hospital on 15 August 2021.

[11] In the light of the Claimant's condition and upon due consideration, the Company had allowed the Claimant to work from home from 1 October 2021 to 28 November 2021 as the Claimant's medical leave ended on 30 September 2021.

[12] The Claimant had been taking leave as follows:-

[13] The Claimant however barely kept the Company updated with his plans moving forward.

[14] On 30 March 2022, through WhatsApp application, COW-2 had delivered to the Claimant the Company's instruction for the Claimant to attend a medical examination with an Occupational Safety & Health (OSH) doctor by 1 April 2022.

[15] However, the Claimant requested the medical examination with the OSH doctor to be postponed to 8 April 2022.

[16]Vide a letter dated 31 March 2022, the Company instructed the Claimant to undergo a medical examination known as 'Occupational Health Doctor Evaluation On Fitness to Work' on 8 April 2022 at Poliklinik MUC - Jalan Reko, Kajang.

[17] The Claimant attended as instructed. The Claimant was examined by Dr Rokeshwar Hari Dass (COW-3).

[18] Through Occupational Health Doctor Fit to Work Assessment Report dated 8 April 2022 (the OHD Report) at COB-1, pages 67-71, COW-3 found that the Claimant, among others, as follows:

(i) Was able to talk in sentences;

(ii) Was able to walk into the examination room independently;

(iii) Did not have any chest pain, dizziness, excessive sweatin