[2010]  1 ILR  546   

JC FREIGHT & ENTERPRISE V. NGOH LOOI
INDUSTRIAL COURT, KUALA LUMPUR
GULAM MUHIADDEEN ABDUL AZIZ
AWARD NO. 132 OF 2010 [CASE NO: 12(22)(15)/4-466/03]
29 JANUARY 2010



DISMISSAL:
Breach of company rules and policies - Claimant absent from work - Claimant on medical leave for a prolonged period - Medical certificates submitted - Backdated medical certificates - Genuineness of the medical certificates - Effect of - Issuing doctor questioned and giving an explanation - Whether his explanation had been reasonable - Effect of - Whether it had constituted just cause to dismiss the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)


DISMISSAL:
Breach of company rules and policies - Claimant on medical leave for a prolonged period - Whether the medical leave taken had been excessive - Effect of - Whether there had been a suspicion of the abuse in taking medical leave - Effect of - Whether dismissal had been without just cause and excuse - Industrial Relations Act 1967


DISMISSAL:
Breach of company rules and policies - Claimant on medical leave for a prolonged period - Whether the claimant had informed her employer's of the fact that she had been on medical leave - Steps taken by the claimant - Whether they had been sufficient - Effect of - Whether the claimant had discharged her burden of proof - Whether it had been a fundamental duty on the part of the claimant to inform the company of her absence - Effect of - Claimant's attitude - Effect of - Whether dismissal had been without just cause and excuse - Industrial Relations Act 1967


The company had employed the claimant as an Import Officer. Sometime in June 2000 whilst she had been working in the office, the claimant felt pain in her eyes and she went to the Medical Centre for a check-up. She was admitted and given medical leave until the end of June 2000. On her next appointment date, she was given medical leave from the beginning to the middle of July 2000 and on her following appointment date, she was again given medical leave from the middle to the end of July 2000. She reported back to work in August 2000. On 19 July 2000, the company issued the claimant a warning letter to which she duly replied. Then when she reported back to work in August 2000, she was handed a termination letter on the basis that she had been absent from work without leave. The claimant contended that she had been dismissed without just cause and excuse. There were 2 main issues that arose for determination before this court. The first was whether the 3 backdated medical certificates that had been issued by CLW3 ('MC's') had been valid MC's and the second was whether the claimant had complied with the statutory requirement to inform the respondent within 48 hours of the commencement of her medical leave or within a reasonable time.

Held for the company: Dismissal had been with just cause or excuse

(1) In the instant case, the company had in fact not disputed the genuineness of the MC's but only the issue of its backdating. CLW3 as the doctor who had treated the claimant had been fully entitled to backdate the MC's if in his expert opinion, the claimant had not been fit to perform her work on those dates. He had been the best qualified to issue the MC's and the Court should accept his evidence on the reasons why he had issued the MC's (para 38).

(2) In the instant case, there had not been any issue of the claimant having taken excessive sick leave and thereby the question of suspicion or abuse in taking the MC's had not arisen. Thus the MC's obtained by the claimant and issued by CLW3 had been in order (paras 40 & 41).

(3) CLW2 had only informed Ms. Chia Mun Yee of the claimant's hospitalisation on 20 June 2000. She had only called the office once and thereafter had failed to call again to confirm whether her message to the management had been conveyed or not. Even then, she had only informed Miss Chia of the claimant's hospitalisation and not on her MC's which had only been issued on 22 June 2000. The claimant had alleged that the MC's had been forwarded to the company through Mr. Letchumanan but could not remember the dates that the MC's had been given to him. Mr. Letchumanan had not been called as a witness to verify the claimant's claim. The burden of proof had been on the claimant to show that she had informed the company of her sick leave (paras 47, 48 & 49).

(4) If the claimant had in fact forwarded her MC's to the company during her period of leave through Mr. Letcumanan, then there would not have been any need for the company to have issued a warning letter to her. Further she would have mentioned the crucial fact of sending the MC's through Mr. Letchumanan in her Letter of Reply, which she had failed to do. These omissions and the failure to call Mr. Letchumanan had only gone to show that the claimant had not notified the company of her MC's within 48 hours of her leave or within a reasonable time (para 51).

(5) It had been the claimant's duty to ensure that the management of the company had been fully aware of her medical leave, in particular when it had been prolonged medical leave. Accepting that the claimant could have been unwell and had not been able to communicate personally with her superior had however not relieved her of her fundamental duty as an employee to inform her employer of her illness. She had been obliged to inform her employer within 48 hours or within a reasonable time. There had not been any reason given for her failure to submit the medical certificate on 1 August 2000 after the show cause letter had been issued. This attitude of indifference by the claimant had been inexcusable. There had thus been a willful violation of discipline on the claimant's part in the circumstances, which had resulted in her misconduct by her own acts. The claimant's failure to notify her absence to her employer when she had been on medical leave, could be construed as a continuous absence without leave or prior permission from the company which had justified her dismissal (paras 53 & 54).

Award(s) referred to:

Cycle & Carriage Bintang Bhd v. Kong Yuen Hoong [2006] 2 ILR 1445 (Award No. 1223 of 2006)

Etonic Garment Mfg Sdn Bhd v. Kalaimagal Muthusamy [1998] 3 ILR 698 (Award No. 587 of 1998)

General Tyre Retreaders Sdn Bhd v. Vadiveloo Munusamy [1996] 2 ILR 1419 (Award No. 532 of 1996)

Malaysia Airlines System Bhd. v. Julais Stephen [2005] 3 ILR 34 (Award No. 1139 of 2005)

Seng Lee Plywood Sdn Bhd Seremban v. Jayabalan M Nathan [1994] 1 ILR 423b (Award No. 153 of 1994)

Syarikat Telekom Malaysia Bhd v. Madurai Veeran Gopal [1992] 1 ILR 282 (Award No. 110 of 1992)

Case(s) referred to:

Pan Global Textiles Bhd Pulau Pinang v. Ang Beng Teik [2002] 1 CLJ 181

Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314

Legislation referred to:

Employment Act 1955, s. 60F(2)(b)

Industrial Relations Act 1967, s. 20(3)


Other source(s) referred to:

Dunston Ayadurai, Industrial Relations In Malaysia, Law And Practice, 3rd edn, p. 433

[Dismissal with just cause or excuse.]

Reported by Sharmini Pillai