13 March, 2019
Company had unfairly dismissed him.
In its decision, the Industrial Court Chairman had made the following findings
a) The Claimant was the one who had raised the issue of being medically boarded out to the Company;
b) The Union who was involved in the meetings and dialogue between the Company and the Claimant was silent in this whole ordeal;
c) The Claimant had weakened his own case when he had testified that he had proposed to leave the Company on a voluntary separation scheme. This clearly showed that the Claimant’s sole intention was that he wanted more monetary payment from the Company.
d) Despite an agreement reached between the Claimant and the Company to be released from employment, he had reneged against it.
e) The Industrial Court further made a finding that the employment contract was in fact frustrated by the Claimant’s prolonged illness and absence from work.
The Claimant had failed to report to work from 18 September 2014 to 30 June 2015 with no indication when he would be able to return to work. The Claimant also failed to provide evidence to the Company indicating that he was fit for work. After considering the documentary and testimony evidence, the Industrial Court ruled that there was no dismissal in law by the Company and that the employment contract was in fact frustrated by the Claimant prolonged illness and absence from work.
This decision by the Industrial Court shows the willingness of the Industrial to accept that a contract of employment can be frustrated, which results in the inevitable conclusion there is no dismissal in law.
The Company was represented in this matter by Vijayan Venugopal, who is a Partner in our Industrial Relations Practice.
Please click on http://www.shearndelamore.com/alerts/Industrial-Court-Malaysia-No873.pdf to read the text of the judgment.
For further information, please contact:
Sivabalah Nadarajah, Partner, Shearn Delamore & Co
sivabalah@shearndelamore.com
