2024 MarsdenLR 2033

INDUSTRIAL COURT MALAYSIA
Tan Seng Kok – Appellant
Versus
Sunshine Bread Sdn Bhd – Respondent
14/4-1316/22

An employer's dismissal based on a statutory deeming provision for employment abandonment is invalid if the employee provides a reasonable excuse for absence. Furthermore, termination without an opportunity for the employee to be heard regarding medical-related absences violates procedural fairness and does not constitute just cause.

Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal without just cause or excuse. Employment Act 1955 - Section 15(2) - Deeming provision regarding abandonment of contract - Whether employer discharged burden of proof. (Paras 51-54, 64-65)

(B) Procedural Fairness - Absence of domestic inquiry - Failure to afford employee opportunity to be heard - Whether curable by proceedings in the tribunal. (Paras 55-57, 76)

(C) Scope of Judicial Inquiry - Duty to restrict examination to reasons operative at the time of dismissal - Prohibition against relying on post-dismissal justifications. (Paras 61-62)

(D) Abandonment of Employment - Rebuttable presumption - Requirement for employer to prove absence was without reasonable excuse - Duty to accommodate medical conditions during recovery. (Paras 65, 71, 78)

Facts of the case:
The claimant, an employee recovering from a severe medical condition, was instructed by the employer to undergo a fitness-to-work evaluation. Upon being declared fit by the employer's appointed facility, the claimant was ordered to report to work. The claimant, citing ongoing medical symptoms and a requirement for rehabilitation, requested unpaid leave and notified the employer of an intended return date. The employer rejected the leave application and dismissed the claimant for alleged abandonment and insubordination.

Findings of Court:
The tribunal found that the employer failed to prove the elements of abandonment or insubordination. The claimant had provided reasonable grounds for his absence, and the employer acted with undue haste and a lack of procedural fairness by failing to grant the employee an opportunity to be heard before termination. The dismissal was found to be malicious and lacking in compassion for the claimant's documented health status.

Issues: Whether the dismissal was executed with just cause or excuse and whether the employer's reliance on the deeming provision for abandonment was legally sound.

Ratio Decidendi: A statutory deeming provision for abandonment is a rebuttable presumption that is defeated if the employee demonstrates a reasonable excuse for absence. Furthermore, an employer's decision to dismiss an employee experiencing health complications without providing an opportunity to be heard or exploring tailored working arrangements constitutes an unfair labor practice. The tribunal’s scope is circumscribed by the reasons for dismissal recorded at the material time, and employers cannot retrospectively justify a termination using subsequent events.

Result: Dismissal found to be without just cause or excuse; employer ordered to pay specific monetary compensation in lieu of reinstatement.