Dismissal for absenteeism deemed unlawful due to insufficient evidence of misconduct by the employer, validating the employee's claim of presence at the worksite.

AWARD

Ani Solep @ Julia Anne Marie Solep:

[1] This is a Ministerial reference to the Industrial Court under s 20(3) of the Industrial Relations Act 1967 ( IRA ) made on 8 December 2020 for an award in respect of the dismissal of Bong Soi Fah (Claimant) by United Consultants (Company/Respondent) on 18 May 2020.

Background Facts

[2] The Respondent is an engineering consulting firm which operates in Sarawak. The Claimant was, vide a Letter of Offer dated 6 January 2020, employed by the Respondent as Clerk of Works to oversee a project undertaken by the Respondent, "Cadangan Pembangunan Landskap Perbandaran, Bintulu, Sarawak" (Bintulu Project) with effect from 6 January 2020.

[3] While working as Clerk of Works at the Bintulu Project, the Claimant was paid a basic salary of RM3,700.00 per month and monthly site allowance and housing allowance of RM800.00 and RM700.00 respectively.

[4] On or about 16 March 2020, the said Bintulu Project ceased to operate as the result of the implementation of the Movement Control Order (MCO) brought about by Covid-19 pandemic. When the MCO was implemented, the Claimant without the express consent or knowledge of the Company left Bintulu and travelled back to Kuching.

[5] On or about 12 May 2020, the MCO was lifted and the Government implemented Conditional Movement Control Order (CMCO). Upon discovering that the Claimant was in fact in Kuching, the Respondent assisted the Claimant in travelling to Bintulu. The Respondent on 11 May 2020 forwarded to the Claimant Application for Travel Permit and COVID- 19 Surat Pengesahan Pekerja dari United Consultants whereby the Claimant was to travel to the Bintulu site.

[6] According to the Claimant, on 12 May 2020 his Application for Travel Permit was rejected by the Police because he could not show any proof of transportation when required by the Police. The Claimant alleged that at that point of time, the operation of bus company and airline industry was halted as a result of the implementation of the MCO.

[7] On 13 May 2020, the Claimant applied leave from 13 May 2020 to 30 May 2020. According to the Claimant, he applied for leave because he feared that that he might not be able to get any transportation to travel to Bintulu. The leave application was rejected by the Company on the same day.

[8] On 14 May 2020, the Claimant again went to the police station to apply for travel permit and this time his application was allowed. Upon obtaining the travel permit, the Claimant claimed he travelled to Bintulu using his family car on the same day.

[9] The Claimant filed this action against the Company for unlawful dismissal by the Company on 18 May 2020, in which the Company alleged that the Claimant was absent from site and/or work without official leave and/or without informing the company. The Claimant denied such allegation.

[10] By this action, the Claimant prays to be reinstated to his previous employment or to any employment of the position similar to that before the Claimant was dismissed, and without any loss of seniority, cut or deduction of wages, allowances, bonus, and other benefits and reliefs as stated in the Statement of Case.

[11] The Company disputes the Claimant's claim and pleads that the Claimant's dismissal was with just cause and excuse.

[12] It is the Company's contention that the Claimant was absent without leave from the Bintulu site. The Claimant had returned to Kuching during the MCO without informing the Company.

[13] The Company alleged that the Claimant had failed to supervise the concreting works performed at the Bintulu site on 15 May 2020.

[14] Because of the Claimant's failure to supervise the concreting works performed at the Bintulu site, the Respondent had no representatives to ensure that the concreting works were performed according to the Respondent's specification.

[15] Because of these incidents, the Respondent had no other option but to terminate the Claimant's employment. The Claimant was informed of this matter vide a Letter dated 18