MALAYASIA Malaysia Smelting Corp. Bhd. Butterworth v.

Kesatuan Kebangsaan Pekerja-pekerja Peru- sahaan Peleboran Logam Butterworth Industrial Court, Penang Chairman: Haji Sabarudin bin Haji Othman Members: Mohamed Anwar Abu Bakar bin Omar [Case No. 5/3-531/88 (24 NOVEMBER 1988)] 7 & MAY 1990, 1 & 2 APRIL 1991 Award No. 148 of 1991 [16 MAY 1991] Dismissal: Excessive medical leave - inferences - whether absence with leave is misconduct common law, statutory law and industrial law - medical certificates on all occasions - no provision in contract of service and collective agreement - just cause or excuse reinstatement. The claimant K had been employed as a furnace labourer in the production department of the company since 28 January 1968. On 7 February 1988, he was dismissed due to excessive medical leave taken by him over a period of time. Under the collective agreement there was no provision for ordinary medical leave beyond 22 days but provision was made for prolonged illness like TB, Cancer or Polio. Apart from minor type of sickness, K was also hospitalised as a result of two motor accidents. Between 1982 to 1987, the days of medical leave also a number of occasions on which K went to the which K took amounted to 340 days. There were doctor but he did not obtain medical leave; he was also reminded not to go to non-company doctors. The company issued a show cause letter in 1986 in relation to K's medical leave and he also attended counselling services. Another show cause letter was given to K in 1988 ; K contended that under article 28 of the collective agreement and labour law, he was entitled as of right to medical leave. The company held a domestic inquiry on the basis of misconduct of taking excessive medical leave which it was alleged indicated his unwillingness to perform his duties under the contract of employment. K was found guilty and was dismissed by the company pursuant to a recommendation from the board of inquiry. Held: [1](a) Absence with leave is not a misconduct. The taking of excessive medical leave is an unknown misconduct, it is unknown in common law and statutory law or industrial law. It would be a misconduct if the taking or excessive medical leave is based on false medical certificates. It would then be "absence without leave"; (b) the prohibition of "taking excessive medical leave" is not a term of the collective agreement nor was it in the contract of service, the breach of which disciplinary action could be taken. [2] K produced medical certificates on every occasion that he was absent and these medical certificates were accepted by the company without protest and the company even reimbursed K for the medical fees incurred by him. Therefore it can be inferred that the company had agreed and admitted that K was unfit for work as certified by the doctors who gave him the medical leave. [3] Article 29 of the collective agreement does not prohibit a worker from taking more than 22 days medical leave. It is irrelevant whether K had taken more than the average medical

leave permitted; there was also no evidence that K was a malingerer and that he refused to perform his obligations under the contract of service. [4] The charge did not disclose any misconduct known in common law or statutory law or industrial law and neither was it a breach of the terms of the collective agreement or the contract of service. Dismissal unjustified; Reinstatement ordered. Legislation referred to: Employees Fund Act 1951 For the Company - S. Sivagnanam, MalaysianEmployers Federation For the Union - Mohideen Abdul Kader, Counsel Dismissal unjustified; Reinstatement ordered. This is a dispute between the company and the union over the dismissal of the claimant which took effect from 7 February 1988. The facts of the case were that the claimant joined the company on 28 January 1968. His last job was a furnace labourer in the production department. His duty was to carry out all manual jobs required for smooth operation of the furnace. According to the claimant his job included, After the tin has been smelted the crane will come and I have to put the smelted tin into the crane. At the furnace I have to pull the slag out and put it down. It is very hot at that time. During the process gas is produced and I found it difficult to breathe. There will be dirt flying around. If one goes close to the furnace clothing could be burnt. The claimant, as stated earlier was dismissed on 7 February 1988 because of his excessive medical leave taken over a period of time. The company has got panel doctors. The doctors are located where the workers are living. It has one in Butterworth, one in Kulim where the claimant stays. According to the collective agreement, CO-1, workers who have more than five years continuous service are entitled to 22 days paid medical leave. There is no provision for ordinary medical leave beyond 22 days. But for prolonged illness like T.B., Cancer, Polio etc. a worker is entitled to 6 months full pay medical leave followed by up to another 6 months half pay medical leave. The summary of medical leave taken by the claimant from 1982 to 1987 is produced as CO5. The summary is as follows: In 1982, 35.5 days given by company's panel doctors and 21 days given by other doctors, totalling 56.5 days. In 1983, 17 days given by company's panel doctors and 34 days given by other doctors, totalling 51 days. In 1984, 20.5 days given by company's panel doctors and 31 days given by other doctors, totalling 51.5 days. In 1985, 16.5 days given by company's panel doctors and 42 days given by other doctors, totalling 58.5 days. In 1986, 22 days given by company's panel doctors and 19 days given by other doctors, totalling 41 days. In 1987, 28 days given by company's panel doctors and 55 days given by other doctors, totalling 83 days. The list of the types of medical problems of the claimant is produced in court as CO6. From the list it appears that most of the illness is of minor type of sickness with no identifiable permanent illness like TB etc. In 1987, the average medical leave taken by the company's workers which were 471 was 17 days, but for the same year claimant took 83 days. But in 1987 claimant met with a motor accident and was hospitalised. Because of the accident he was given 43 days medical leave. The balance of 40 days medical leave was due to ordinary sickness. With the claimant there were 42 other furnace labourers. According to CO8 the medical record of these labourers, the average medical leave was 19.3 days. However, the

claimant claimed that there were only 11 or 12 workers with him who were exposed to danger while the rest of furnace labourers were doing a different job. There is no average medical leave for these 11 or 12 workers prepared by the company. According to CO9 the claimant made visits to the doctor but did not get medical leave: Year No of occasion 1982 5 visits 1983 7 visits 1984 2 visits 1985 7 visits 1986 13 visits 1987 18 visits However the company did not claim that the claimant was absent from work on these occasions. The claimant on the other hand had testified that on these occasions he was sick and after collecting his medicine he reported for work. On 24 August 1985 the company sent the claimant for a medical check up. The doctor found him to be fit for work. This is stated in CO10. In view of his medical problems the company decided to issue claimant a show cause letter asking him to give explanation in writing over his excessive medical leave taken in 1985. The show cause letter is CO11 dated 2 January 1986. Claimant was also required to be present before a counselling panel on 9 January 1986. The counselling took place. The result was communicated to claimant in writing on 21 January 1986 which is CO12. He was advised in CO12 not to abuse the medical facilities. He was advised only to visit company's doctors unless in an emergency. The next counselling took place on 26 July 1986. He was told in writing to improve his attendance - CO13. He was again reminded to see company's doctors unless it was an emergency. It was pointed out to him that there was no improvement compared to last counselling. The next counselling took place on 15 October 1986. He was again told to improve his absence on medical leave. He was again reminded not to go to non-company's doctors. These are in a letter CO14. Further counselling was carried out on 21 January 1987. He was told to improve further in a letter CO15. There were 3 further counsellings, the last of which was on 27 October 1987. He was told his medical leave continued to be high. He was asked to change his attitude and adopt a positive one. Expenses incurred by company in providing medical facilities are as in list CO20. On 1985 the company spent $139,777.10 on medical expenses for employees. In 1986, $139,406.25. In 1987, $143,022.34. In 1988, $144,035.95 and in 1989, $161,947.05. The expenses increase year by year. Since the company found that there was no improvement in the claimant's case the company issued the claimant with a show cause letter - CO21 asking claimant to explain in writing why disciplinary action should not be taken against him. CO21 was sent to claimant on 8 January 1988. The claimant replied to CO21 by sending CO22. In CO22 claimant said that he had met with two major accidents and was once admitted to General Hospital, Penang and once treated by the company doctor. He also claimed that prior to after joining the company he had been suffering joining the company his health was good, but from fever and had to seek medical treatment and produced medical certificates. He maintained that there was no reason for the company to take disciplinary action against him as he was entitled as of right to medical leave under article 28 of the collective agreement and Labour Law. The company was not satisfied with the claimant's explanation and decided to hold a domestic inquiry. The inquiry was finally held on 22 January 1988. The charge against the claimant was: That you have persistently taken excessive medical leave for the last six years in order not to come to work and indicating unwillingness to perform your contractual duties and obligations which is contrary to the expected performance as per your contract of employment with the company. Due to your persistently high medical absences, your rate of absences for the last six years are as follows: 1982 - 27% of available mandays per year. 1983 - 23% of available mandays per year. 1984 - 21% of available mandays per year. 1985 - 25% of available mandays per year. 1986 - 17% of available mandays per year. 1987 - 42% of available mandays per year.

Claimant was found guilty as charged and was recommended by the board of inquiry to be dismissed. He was dismissed by the company vide letter dated 6 February 1988 - CO23. Claimant was dismissed with effect from 7 February 1988. These is no dispute at all that claimant has been dismissed. The sole issue therefore is whether or not the dismissal was without reasonable cause or excuse. The charge against the claimant for which he was found guilty and dismissed is for misconduct of persistently taking excessive medical leave in 1982 to 1987. According to the Law of Industrial Disputes, Vol.1 by Malhotra at p.761. Absence without leave is misconduct in industrial employment warranting disciplinary punishment. Logically absence with leave is not a misconduct. The taking of excessive medical leave is an unknown misconduct, it is unknown in common law and statutory law or industrial law. It would be a misconduct if the taking of excessive medical leave is based on false medical certificates. It would then be "absence without leave". The prohibition of "taking excessive medical leave" is not a term of the collective agreement nor was it in the contract of service, the breach of which disciplinary action could be taken. From the evidence we have before this court we find that on every occasion claimant was absent he produced medical certificates. Even when the medical certificates were issued by noncompany doctors, they were accepted by the company without protest and even reimbursed the claimant for the medical fee that he had paid. The company could have refused to accept them unless they were issued by company's doctors. The company could under the collective agreement have referred the claimant to the company's doctors. All those days he was absent were supported by medical certificates issued by competent medical doctors who found him unfit to work. The company must have accepted the medical certificates produced by the claimant. If the company had doubts as to the bona fide of the medical certificates they could have sent the claimant to be examined by the company's doctors. The only inference that could be drawn is that the company had agreed and admitted that the claimant was unfit for work as certified by the doctors who gave him the medical leave. According to article 29 of the collective agreement (U1) it does not prohibit a worker from taking more than 22 days medical leave. It only does not oblige the employer to pay him his salary for the days in excess of the 22 days. It is not a misconduct if a worker is absent due to sickness and is certified to be unfit for work by a competent medical doctor and unchallenged by the employers. It is irrelevant if the worker has taken more than the average if he is certified sick. In this case there is no evidence that the claimant was malingering. There was also no evidence adduced that claimant refused to perform his obligation under the contract of service. The fact that he was found by the company's doctors fit for work on 24 August 1985 when he was sent for medical check up does not necessarily mean that he could not get sick even on the following day. The court is of the finding that the charge does not disclose any misconduct known in common law or statutory law or industrial law and neither was it a breach of the terms of the collective In the circumstances this court is satisfied on agreement or the contract of service. a unanimous decision that the claimant was dismissed on 7 February 1988 without just cause or excuse. The court is also of the unanimous opinion that this is a fit case for reinstatement and compensation in lieu would not be an appropriate remedy. This court, therefore, orders that the claimant be reinstated as a worker of the company. The claimant will report for duty on 16 June 1991. This court further orders that the claimant be paid all his salary, bonus and allowances in full, for the entire term of his dismissal, without any loss of any benefits, seniority or privileges. This court further orders that the company shall deduct and pay the EPF contributions in respect of the back wages in accordance with the Employees Provident

Fund Act 1951. Finally, this court further orders that all salary and all other payments and dues ordered shall be paid through the union within one month of the date of this award.