An employee's refusal to comply with a lawful vaccination policy constitutes serious misconduct justifying dismissal, especially when unsupported by medical evidence.

AWARD

Eswary Maree:

Reference

[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 (the Act) by the Director General of Industrial Relations, emanates from the dismissal of Nur Ridzuan bin Abdul Hamid ("the Claimant") by Magna Nova Sdn Bhd on 17 September 2021.

Preamble

[2] This Court had considered the notes of proceedings and the following pleadings, evidence, documents and submissions in handing down this Award:

(i) "Penyataan Kes" dated 16 January 2023;

(ii) "Pernyataan Jawapan" dated 14 March 2023;

(iii) Rejoinder dated 28 March 2023;

(iv) "Ikatan Dokumen Syarikat (Jilid 1)": COB-1;

(v) "Ikatan Dokumen Syarikat (Jilid 2)": COB-2;

(vi) "Ikatan Dokumen Penuntut": CLB-1;

(vii) "Ikatan Dokumen Penuntut (2)": CLB-2;

(viii) Witness Statement of Lee Lay Yim: COWS-1;

(ix) "Penyata Saksi Penuntut", Nur Ridzuan bin Abdul Hamid: CLWS-1;

(x) "Hujahan Bertulis Syarikat"dated 24 September 2024;

(xi) "Hujahan Bertulis Penuntut"dated 24 September 2024;

(xii) "Hujahan Balas Syarikat" dated 17 October 2024; and

(xiii) "Hujahan Balas Penuntut"dated 17 October 2024.

The Company's Case

[3] The Company is a Company incorporated in Malaysia and is and was at all material times involved in the manufacturing, processing and packing of food for pet animals.

[4] At all material times, the Claimant was employed by the Company as an Electrical Technician.

[5] Notwithstanding the title of the Claimant's position in the Company, the scope of the Claimant's services includes, among others, carrying out general repairs and installation of the machinery, tools and equipment, furniture and fittings belonging to the Company either at the Company's premises, or the premises of its distributors and retailers.

[6] In March 2020, as a result of a global pandemic caused by COVID-19, the Government of Malaysia (Government) had implemented several measures under the Prevention and Control of Infectious Deceased Act 1988, including lockdown, to curb the said pandemic.

[7] In February 2021, the Government had kickstarted the National COVID-19 Immunisation Programme (NIP) as an approach to curb the spread of COVID-19 and to end the COVID-19 pandemic by achieving the highest immunization rate among the citizens and non-citizens residing in Malaysia.

[8] On 17 August 2021, the Government through the National Security Council (NSC) had announced the Standard Operating Procedures (SOP) whereby a Company involved in manufacturing business would be allowed to operate provided its employees are vaccinated:

(a) By the same SOP, the Government also made it compulsory for every employee to use the "MySejahtera" application before entering his/her workplace, and that any employee who has a "High Risk" status as shown in the "MySejahtera" will not be allowed to enter his/her work place;

(b) In the circumstances, the Company, through its Human Resources Department, had taken the appropriate steps to ensure and encourage all its employees are properly vaccinated under the NIP, consistent with the collective will and efforts of the Government;

(c) Guided by the spirit behind the NIP and the said SOP, the Company had implemented a "No Vaccination No Entry" policy at all its offices whereby all employees and visitors who wished to enter the Company's premises must show their "MySejahtera" profile to prove that they have been vaccinated under the NIP;

(d) Similar policy was also implemented at the premises of the Company's distributor and retailers at which the Company's assets were stored, installed or located;

(e) Sometime in early September 2021, it has come to the knowledge of the Company that the Claimant had not taken any COVID-19 vaccination under the NIP, despite it having been made available to the public by the Government;

(f) When enquired by the Human Resource Department of the Company, the Claimant explained that he did not want to be vaccinated because his body is allegedly allergic to the vaccines;

(g) However, the Claimant is unable to produce any proof of such allergy to any