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2024 MarsdenLR 1269
INDUSTRIAL COURT SARAWAK
MOHD RAUF ABD RAHMAN – Appellant
Versus
LL MALAYSIA TAMAN TEMA SDN BHD – Respondent
Award No: 1852 Of 2024 [Case No: 8(16)/4-1423/22]
The dismissal of an employee for refusing to comply with a lawful vaccination directive is justified if it constitutes insubordination and jeopardizes business operations.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee for non-compliance with vaccination directive - The Court must determine if the misconduct was established and if it constituted just cause for dismissal - The employer bears the burden of proof - The dismissal was upheld due to insubordination and failure to comply with lawful directives. (Paras 2, 4, 16, 20, 29, 62)
(B) Employment Law - Just Cause for Dismissal - The test for determining just cause is whether the employer had reasonable grounds for believing the employee committed the misconduct at the time of dismissal. (Paras 20, 56)
(C) Public Interest vs. Private Interest - The claimant's refusal to be vaccinated contradicted public health interests, justifying dismissal. (Paras 43, 55)
Facts of the case:
The claimant was dismissed for failing to comply with a company directive to get vaccinated against Covid-19, which was mandated by government guidelines. (Paras 5-13)
Findings of Court:
The Court found the dismissal was with just cause, as the claimant's refusal constituted serious misconduct and jeopardized the company’s operations. (Paras 62)
Issues: Whether the dismissal was justified based on the claimant's non-compliance with vaccination requirements.
Ratio Decidendi: The Court ruled that the employer's requirement for vaccination was lawful and reasonable in light of public health directives.
Result: Claimant's case dismissed.
AWARD
Reference
[1] This is an order of reference dated 11 October 2022 by Director General of Industrial Relations Department pursuant tosubsection 20(3) of the Industrial Relations Act 1967 arising out of the alleged dismissal of Mohd Rauf Bin Abd Rahman (the Claimant) by LL Malaysia Taman Tema Sdn Bhd (the Respondent) on 5 January 2022.
Roles And Functions Of The Court
[2] It is a trite law that the role of this Court is two-fold. Firstly, to determine whether the misconduct complained of by the employer has been established, and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal (see Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd ; ; [1988] 1 MLJ 92; [1988] 1 CLJ (Rep) 298; Milan Auto Sdn Bhd v. Wong Seh Yen; [1995] 3 MLJ 537; [1995] 4 CLJ 449; [1996] 1 AMR 049; K A Sanduran Nehru Ratnam v. I-Berhad; [2006] 1 MELR 114; [2006] 2 MLRA 467; [2006] 2 MLRA 778; [2007] 2 MLJ 430; [2007] 1 ILR 257; [2007] 1 CLJ 347).
[3] The burden of proof lies with the employer in proving that he has just cause or excuse for making the decision and not for the employee to prove otherwise (see Ireka Construction Berhad v. Chantiravathan A/l Subramaniam James ; [1995] 2 ILR 11 ).
[4] As regards the standard of proof to prove case in this Court is on a balance of probabilities that is the civil standard, which is flexible, so that the degree of probability required is proportionate to the nature of gravity of the issue, as decided in Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor; ; [2002] 3 MLJ 129; [2002] 3 CLJ 314; [2002] 3 AMR 2898, where His Lordship Justice Abdul Hamid Mohamad JCA held: "Thus, we can see that the preponderant view is that the Industrial Court , when hearing a claim of unjust dismissal, even where the ground is one of dishonest act, including "theft", is not required to be satisfied beyond reasonable doubt that the employee has "committed" the offence, as in a criminal prosecution."
Facts Of The Case
[5] The event that led to the adjudication in this Court is that the claimant has failed to comply with the order or direction of his employer to get vaccine for Covid-19. Later, he was dismissed for his non-compliance.
[6] The claimant joined the Company as a Retail Assistant, Retail Department in 2013, specifically with effect on 25 November 2013. He was confirmed in his employment, and this was communicated to him via a letter dated 28 February 2014.
[7] Effective 1 September 2020, the claimant was re-designated to the position of Retail Supervisor (Grade F).
[8] In early 2020, the Covid-19 pandemic occurred and affected, not only Malaysia, but globally. This pandemic affected all the business in Malaysia, where all the business premises were ordered by the Government to be closed, including the Company's theme park business.
[9] Later, after being closed for so long, for a theme park business to resume and continue as usual, the Government has issued instructions, through its agency, known as Majlis Kesehatan Negara (MKN), in term of standard operating procedures for the employees to be vaccinated, before approval can be granted.
[10] The Company then issued a memorandum dated 29 September 2021 (hereinafter referred to as "the Memorandum") and the 'Return to Work Guidelines for Model Citizens' ("Garis Panduan Warga Kerja untuk Kembali ke Tempat Kerja") (hereinafter referred to as "the Guidelines) for all the employees to comply with ie to be vaccinated on or before 31 December 2021. According to the Guidelines, starting 1 January 2022, only the employees with complete vaccination would be allowed to enter the workplace.
[11] Before the dismissal, reasonable steps were taken by the Company to get the claimant vaccinated, such as, by arranging an online meeting between the claimant and the Company's officers regarding the order or direction to be vaccinated, arranging a medical officer to give explanation regarding the vaccinati
