DALAM MAHKAMAH TINGGI MALAYA

DI KUALA LUMPUR

DALAM NEGERI WILAYAH PERSEKUTUAN

KUALA LUMPUR, MALAYSIA

(BAHAGIAN KUASA-KUASA KHAS)

[RAYUAN SIVIL NO. WA-16A-106-09/2024]

ANTARA

SUNSHINE BREAD SDN BHD

(Yang dahulunya dikenali sebagai Auric Flavours Sdn Bhd)

(NO. SYARIKAT: 201701005392/1219557-K)

... PERAYU

DAN

TAN SENG KOK

(NO. K/P: 690813-05-5051)

... RESPONDEN

(Dalam Mahkamah Perusahaan Kuala Lumpur

Dalam Wilayah Persekutuan Kuala Lumpur, Malaysia

Kes No: 14/4-1316/2022

Antara

Tan Seng Kok

(No. K/P: 690813-05-5051)

... Penuntut

Dan

Sunshine Bread Sdn Bhd

(Yang dahulunya dikenali sebagai Auric Flavours Sdn Bhd)

(No. Syarikat: 201701005392/1219557-K)

... Pihak Syarikat)

JUDGMENT

INTRODUCTION

1. The respondent, Tan Seng Kok ("the claimant"), was terminated by his employer, Sunshine Bread Sdn Bhd ("the company"). The claimant made representations to the Director General of Industrial Relations ("DGIR") that his dismissal was without just cause and excuse. Efforts of conciliation failed, and the dispute was referred by the DGIR to the Industrial Court for adjudication.

2. The learned Chairman of the Industrial Court, after a trial, found that the dismissal was without just cause and excuse and awarded the claimant back wages and compensation in lieu of reinstatement to the amount of RM342,900.00. Hence, this appeal by the company against the decision of the Industrial Court pursuant to Section 33C of the Industrial Relations Act 1967.

BACKGROUND

3. The facts leading to the dismissal are as follows. The claimant commenced employment with the company on 11.2.2019 as an IT Manager vide letter of appointment dated 18.1.2019.

4. Everything was fine until the country was hit with the COVID-19 virus. On 27 June 2021, the claimant tested positive and was quarantined at the Serdang Quarantine Centre. His condition worsened, and he was admitted to the Intensive Care Unit ("ICU") at the Sungai Buloh Hospital. He was categorised as a Category 5 COVID-19 patient. On 15 August 2021, the claimant was discharged from the ICU and, at his request, transferred to Sunway Medical Centre ("Sunway Medical"). He was discharged from Sunway Medical the same day.

5. The claimant was suffering from post-COVID-19 symptoms and was allowed to work from home after his medical leave from 1 October 2021 to 28 November 2021 and was advised to undergo physiotherapy and rehabilitation.

6. The following leave taken by the claimant was approved by the company.

1.

3.7.2021 -2.9.2021

COVID-19 hospitalisation

60 days

2.

3.9.2021 -4.9.2021

Hospitalisation leave

2 days

3.

6.9.2021 -15.9.2021

Emergency leave

10 days

4.

17.9.2021 -27.9.2021

Annual leave

11 days

5.

28.09.2021

Replacement leave

1 day

6.

29.9.2021 -30.9.2021

Unpaid leave

2 days

7.

29.11.2021 -31.12.2021

Unpaid medical leave

25 days

8.

3.1.2022-24.1.2022

Medical leave

14 days

9.

25.1.2022-27.1.2022

Emergency leave

3 days

10.

28.1.2022-31.1.2022

Replacement leave

4 days

11.

3.2.2022 -9.2.2022

Emergency leave

7 days

12.

10.2.2022-15.2.2022

Medical leave

6 days

13.

16.2.2022-26 4.2022

Medical unpaid leave

70 days

7. Thereafter, the company instructed the claimant via WhatsApp to attend a medical examination with an Occupational Safety & Health (OSH) doctor at Poliklinik MUC, Jalan Reko, Kajang. The claimant attended the examination on 8.4.2022. He was examined by one Dr Rokeshwar Hari Dass ("COW3").

8. In a report, known as the Occupational Health Doctor Fit to Work Assessment Report ("the OHD Report") dated 8.4.2022, COW3 concluded that the claimant was recovering from restrictive lung disease due to post-stage 5 COV1D-19, stage 2 chronic kidney disease with regular and normal urination and electrolytes, and mild post-traumatic stress disorder. COW3 said that these conditions were reversible in due time. COW3 also found that the claimant's lungs were not severely impaired, while the kidneys had mild impairment. COW3 said that the impairments would not hamper the claimant's activities of daily living and that the psychological effects of the claimant during Post-COVID were real but mild and controlled.

9. U