PETALING JAYA: An information-technology (IT) engineer has won a lawsuit against his former employer following his dismissal after a prolonged recovery from Covid-19 was found not to be in breach of his contract by the Industrial Court.
Tan Seng Kok was awarded 24 months worth of back wages together with an extra three months’ pay amounting to RM324,900 as compensation in place of reinstatement while his last drawn salary was RM12,700.
The New Straits Times reported that the engineer was admitted to a quarantine centre in Serdang on June 30 2021 after he was diagnosed as a Category 5 Covid-19 patient and took 183 days of hospitalisation, medical, annual and unpaid leaves, valid until April 26 2022.
Later on April 4 2022, his employers instructed Tan to attend an occupational medical and safety check-up at a private clinic in Kajang and was certified as fit to attend work without restrictions.
Tan then received a letter on April 22 from his employer, instructing that he return to work on April 27, warning that he would be deemed to have “abandoned” his duties if he did not turn up.
ALSO READ: Woman awarded RM180,000 after dismissal during menstrual leave
However, trouble started brewing for Tan as he could not access his workplace online leave application system and sent an e-mail requesting an additional 22 days of unpaid leave for his physiotherapy and rehabilitation, adding that he informed the company he would come back on June 1.
But he was terminated on April 28 after he did not turn up to work on the date requested in the letter asking him to return to work, and was sent another letter after that rejecting his leave application, calling his application “unreasonable and unsubstantiated”, as quoted.
However, the charge sheet reportedly said the rejection letter was reportedly an “afterthought” as it was issued after Tan’s dismissal, according to Industrial Court of Malaysia chairman Eswary Maree, on top of finding out that his termination was “planned earlier”, as quoted.
Eswary added that Tan had to take unpaid leave as his employer stated that they only accepted government hospital issued medical certificates in the April 22 letter.
The Industrial Court stated during the proceeding that the employer’s action of blocking Tan’s access to the online leave application system during his recovery from Covid-19 indicated a premeditated “malice”, as quoted.
ALSO READ: RM66,000 was granted to a pregnant employee as a constructive dismissal
The company also reportedly failed to provide other alternatives such as working from home during his recovery despite having medical records from a private hospital stating he can work if provided another means to do his job.
Furthermore, the occupational health doctor’s (OHD) report issued two months later that certified Tan as fit to return to work was found to be “inconclusive”, as quoted.
The report said that Tan still suffered from lack of energy, shortness of breath upon exertion, some derangement and other medical ailments such as lung and kidney disease and mild post-traumatic stress disorder - which were said to be reversible as time goes by.
Eswary also pointed out that Section 15(2) of the Employment Act 1955 specifies that employees absent for more than two consecutive days without taking leave beforehand will be regarded to have breached their terms of contract.
ALSO READ: 17 former private college lecturers awarded RM1.4m for unfair dismissal
With this, she also noted that Tan’s application for unpaid leave from Apr 27 until May 31 due to health issues proved that he did not abandon his work since he also informed his employer of his return to work on June 1.
“The company failed to prove that (Tan) had been absent for more than two consecutive working days to rely on the provision,” she was quoted as saying.
