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2024 MarsdenLR 2250
INDUSTRIAL COURT KUALA LUMPUR
ZAITON IBRAHIM – Appellant
Versus
MALAYSIA AIRLINES BERHAD – Respondent
Award No: 1740 Of 2024 [Case No: 14/4-530/22]
An employer may lawfully dismiss an employee for insubordination in refusing a mandatory vaccination policy aimed at ensuring workplace safety during a pandemic.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Occupational Safety and Health Act 1994 - Sections 15 and 24 - Dismissal of employee for refusing mandatory Covid-19 vaccination - Employer's duty to provide safe working environment - Employee's refusal deemed insubordination - Dismissal found to be with just cause. (Paras 41, 46, 72)
(B) Employment Law - Employer's right to enforce health policies during a pandemic - Employee's refusal to comply with lawful instructions - Justification for dismissal upheld. (Paras 73, 84)
Facts of the case:
The Claimant was dismissed for refusing to comply with the Company's Covid-19 vaccination policy, which was deemed necessary for workplace safety during the pandemic. The Claimant did not provide a medical exemption for her refusal. (Paras 21, 39)
Findings of Court:
The Claimant's refusal to be vaccinated constituted serious misconduct and was a breach of the Company's policies. The dismissal was justified and upheld. (Paras 89)
Issues: Whether the Claimant's refusal to comply with the vaccination policy constituted just cause for dismissal. (Paras 45)
Ratio Decidendi: The court ruled that the Company acted within its rights to enforce a mandatory vaccination policy for the safety of all employees, and the Claimant's refusal constituted insubordination. (Paras 72, 84)
Result: Claim dismissed.
AWARD
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 Zaiton binti Ibrahim ("the Claimant") by Malaysia Airlines Berhad ("the Company") on 13 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 27 May 2022;
(ii) Statement in Reply dated 12 July 2022;
(iii) Rejoinder dated 9 August 2022;
(iv) Company's Bundle of Documents (Volume 1): COB-1;
(v) Company's Bundle of Documents (Volume 2): COB-2;
(vi) Company's Bundle of Documents (Volume 3): COB-3;
(vii) "Ikatan Dokumen Penuntut": CLB-1;
(viii) "Ikatan Dokumen Penuntut 2": CLB-2;
(ix) "Ikatan Dokumen Penuntut 3": CLB-3;
(x) Witness Statement of Muhammad Fauzi bin Mahayuddin: COWS-1;
(xi) Witness Statement of Mohammad Razin Kamarulzaman: COWS-2A;
(xii) Supplementary Witness Statement of Mohammad Razin Kamarulzaman: COWS-2B;
(xiii) "Penyata Saksi Penuntut", Zaiton bin Ibrahim: CLWS-1;
(xiv) The Company's Written Submission dated 12 July 2024;
(xv) "Hujahan Bertulis Penuntut" dated 12 July 2024;
(xvi) The Company's Written Submission In Reply dated 9 August 2024; and
(xvii) "Hujahan Bertulis Balas Penuntut" dated 9 August 2024.
The Company's Case
[3] The Company avers that the Claimant, through a letter dated 27 May 2015 was issued fresh employment with the Company as a Senior Officer Scanning/Fuel Log/ Vouchers, with effect from 1 September 2015.
[4] The Claimant was then assigned to the role of Senior Officer - Accounts Payable with effect from 1 October 2016.
[5] Sometime in December 2019, a novel corona virus scientifically known as SARS-CoV-2 (Covid-19) was identified from an outbreak in Wuhan, China.
[6] Due to the highly infectious nature of Covid-19, efforts to contain it failed and the virus quickly spread across the world at an unprecedented rate. Covid-19 easily transmits through airborne particles containing the said virus and resulted in a high casualty and severely ill rates. Malaysia recorded its first Covid-19 case in January 2020.
[7] Not long thereafter, Malaysia saw an increase of the spread of the Covid-19 virus amongst its citizens. Owing to the ease of transmission of the Covid-19 virus, the Malaysian government declared a complete national lockdown, termed as the Movement Control Order (MCO) with effect from 18 March 2020, as a preventative measure to contain and combat the outbreak of the Covid-19 pandemic in the nation.
[8] Although the MCO was initially scheduled to expire on 31 March 2020, it was then extended to May 2020, whereby the lockdown restrictions were slowly eased with effect from 4 May 2020.
[9] Notwithstanding the ease of the MCO restrictions sometime in June 2021, as the highly infectious nature of the novel coronavirus Covid-19 virus and pandemic was unprecedented, the Company had implemented a flexible working arrangement as a measure to safeguard the health and safety of its employees by implementing, such as work-from-home arrangements and/or extended flexible working hours.
[10] The Company contends, as at 31 December 2020, Malaysia recorded the following number of cases in relation to Covid-19:
[11] Thereafter, in early 2021, the Malaysian Government announced the National Covid-19 Immunisation Programme (NIP). The NIP is a campaign implemented whereby citizens of Malaysian and non-citizens will be inoculated with the vaccines against the Covid-19 virus, at various phases or stages. The Claimant was eligible to participate in the NIP.
[12] Unfortunately, sometime in May 2021, the Malaysian Ministry of Health announced that it recorded the emergence of a new variant of the Covid-19 virus strain, ie the Delta variant. It was reported that the Delta variant was almost twice as more transmissible than the original strain of the Covid-19 virus and that the viral load of the Delta variant was
