Shantini Parmasivam

[2023] MELRU 1052 v. Oakbridge International School pg 1

SHANTINI PARMASIVAM
v.
OAKBRIDGE INTERNATIONAL SCHOOL

Industrial Court, Kuala Lumpur

Syed Noh Said Nazir @ Syed Nadzir
Award No: 1052 Of 2023 [Case No: 21/4-918/20]
3 May 2023

Case(s) referred to:

Institute Of Technology Petronas Sdn Bhd / Universiti Teknologi Petronas v.
Amirul Fairuz Ahmad [2023] 2 MELR 133; [2023] 3 MLRA 312; [2023] 3 MLJ
15 (refd)
JC Freight & Enterprise v. Ngoh Looi [2010] 1 MELR 246; [2010] 1 ILR 546
(refd)
Pan Global Textiles Bhd Pulau Pinang v. Ang Beng Teik [2001] 1 MELR 39;
[2001] 1 MLRA 657; [2002] 2 MLJ 27; [2002] 1 CLJ 181; [2002] 1 AMR 469
(refd)
Sarimah Othman v. Prasarana Malaysia Berhad [2019] MELRU 1178 (refd)
Shanthi Selvam v. Supcheng Fasteners Sdn Bhd [2020] MELRU 283 (refd)
Syahrizal Salam @ Mansor V. Desaru Damai Beach Resort Sdn Bhd [2018] 1
MELR 527; [2018] 1 ILR 381 (refd)
Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor
[2002] 1 MELR 4; [2002] 1 MLRA 188; [2002] 3 MLJ 129; [2002] 3 CLJ 314;
[2002] 3 AMR 2898 (refd)

Legislation referred to:

Industrial Relations Act 1967, ss 20(3), 30(5)

Counsel:
For the claimant: In person
For the company: Foo Kon Syn; Manager of Human Resources

[Dismissed the claimant's case.]

AWARD

Syed Noh Said Nazir @ Syed Nadzir:

Reference

[1] This is a reference by the Honourable Minister of Human Resources under

s 20(3) of the Industrial Relations Act 1967 dated 5 July 2020 pertaining to the
dismissal of Shanthini A/P Parmasivam ("the Claimant") by Oakbridge
International School ("the School") on 31 January 2020.

Introduction & Summary Of The Pre-Trial Proceedings

 Shantini Parmasivam
pg 2 v. Oakbridge International School [2023] MELRU 1052

[2] The Claimant in this case is self-represented whilst the school was
represented by its Manager of Human Resources & Industrial Relations in the
person of Mr Foo Kon Syn to act on its behalf. By a Warrant of Authority
dated 9 May 2021, the Claimant was initially represented by Mr Peter
Kandiah, a Representative of the MTUC who was later discharged by the
Claimant.

[3] On a mention date fixed for 10 August 2020, this Court had ordered that
hearing dates for this case be fixed for 12 October 2020 and 13 October 2020
for which purpose, the parties were ordered to file the relevant cause papers ie
Pleadings, Witness Statements and Bundle of Documents. Upon the discharge
of the Claimant's representative, the Claimant had thereon been acting in
person in the conduct of her case in Court and the preparation and filing of the
Written Submissions.

[4] This is the full Award handed down by this Court after full hearing of the
case which was fixed and went on for two days ie on 12 October 2020 and 13
October 2020. Having considered the relevant facts, evidence and submissions
presented by both parties, this Court had decided to dismiss the Claimant's
case; the grounds of which shall be dealt with further in this award.

Facts

[5] By a letter of appointment dated 12 November 2019, the Claimant

commenced employment with the Company with effect from 2 January 2020
as a Class Teacher for Grade 9 and 10 (1123 and ESL) and English for Grade
8 and was placed on a six month probation from 2 January 2020. The
Claimant was paid a monthly salary of RM 4,500.00. (Please see Letter of
Appointment at pp 1 to 2,COB1)

[6] It is undisputed that since the commencement of her employment, the

Claimant had only reported for duties for two (2) days ie on 2 January 2020
and 3 January 2020 prior to her eventual dismissal on 1 February 2020.
According to the Claimant vide a WhatsApp message sent on 6 January 2020
at 10:10 am, the Principal of the School was informed that the Claimant
needed to be admitted to the hospital due to an illness.

[7] The Claimant did not report for duty on 7 January 2020 and 8 January
2020 without informing the Company of her absence from work. By a
WhatsApp message sent on 8 January 2020 at 06:32 am by the Principal of the
School, the Claimant was informed to WhatsApp the Medical Certificates
(MCs) for her absence from work from 6 January 2020 until 8 January 2020 by
Monday, 13 January 2020. However, despite her assurance that she would
send the medical certificates requested by the Director of School in respect of
her absence from work on 6 January 2020, the Claimant continued to be
further absent from work from 9 January 2020 until 15 January 2020 without
informing the school or any authorization to be so absent from work.

[8] Reminders were sent to the Claimant by the Director of the school vide
 Shantini Parmasivam
[2023] MELRU 1052 v. Oakbridge International School pg 3

WhatsApp on 15 January 2020 at 11.42 am and 12.06 pm with regard to the

absence of her medical certificates from 6 January 2020 until 15 January 2020;
to which the Claimant responded vide WhatsApp on 16 January 2020 at 2.03
pm that she would do so on 17 January 2020; nevertheless no medical
certificate was forthcoming from the Claimant.

[9] By a letter dated 16 January 2020, the Director of School sent a Notice of
Abandonment of Contract to the Claimant due to her failure to submit any
medical certificate for her continued absence from work and warned the
Claimant inter alia that if the Claimant failed to report for work by 20 January
2020 and submit the required medical certificates to support her absence from
work, the School would take it that the Claimant no longer interested in her
employment and would thereby be deemed to have abandoned her contract of
employment.

[10] As responses from the Claimant by 20 January 2020 was in the negative,
the Principal of the School issued a Show Cause Letter dated 20 January 2020
to the Claimant indicting three allegations levelled against the Claimant. The
Claimant replied to the show cause letter dated 20 January 2020 vide an email
dated 22 January 2020 at 4:23 pm. She averred that she was issued a Medical
certificate on 6 January 2020 relating to the first allegation but for 7 January
2020 she had stated that she rested at home. The school took it that this
implies that the Claimant was never issued any medical certificate for her
absence on 7 January 2020. However, in respect of her absence from work for
the following dates, the Claimant admitted that she was never granted any sick
leave by the doctor:

Dates Claimant Admitted Not Granted Sick Leave

a) 9 January 2020 to 10 January 2020

b) 13 January 2020 to 16 January 2020

[11] The school was not happy with the Claimant's explanation and apparently
proceeded to terminate the Claimant's services vide Notice of Dismissal From
Employment dated 31 January 2020 that took effect from 1 February 2020.

Claimant's Pleaded Case

[12] The Claimant averred that vide her letter of explanation dated 22 January
2020, she had replied to the show-cause letter wherein she explained in detail
her daughter's and her medical condition. However, the school via email dated
28 January 2020, sought further particulars on her absence from work in
respect of 6 January 2020. On this note, it is pertinent to observe the
Claimant's continuous delay in submitting the medical certificate for her
absence on 6 January 2020 which prompted the school's demand for the
impugned medical certificate.

[13] Vide letter dated 31 January 2020, the Claimant explained that she had
submitted all the necessary documents to the Company. She stated her
 Shantini Parmasivam
pg 4 v. Oakbridge International School [2023] MELRU 1052

preference to discuss with the school management in person. On the same

date, the school dismissed the Claimant by letter dated 31 January 2020.

[14] The Claimant went on to dispute being given a copy of the school's
handbook and averred that the handbook was only given to her after dismissal.
In essence, the Claimant took issues with the school's reluctance despite
repeated verbal requests to provide her with the handbook which was heavily
relied on by the school in dismissing her. The Claimant further contended that
after her dismissal she went to the school to handover documents related to
her absenteeism, books and to clear all her personal belongings, as ordered by
the school. However, she was prevented by the school director, one Madam
Judith to hand over her documents on the allegation of absenteeism.

[15] The Claimant contends that the school's principal has agreed to visit her
and also collect the medical certificate and documents related to her health
issues as the Claimant could not go to the school because she was very ill and
so was her daughter. At that time her husband was away overseas. However,
she avers that she had sent all the requested documents to the principal via
WhatsApp.

[16] The Claimant admits she did not report for work but had already
informed the school about the issue. In response to the school's entire
pleading, the Claimant admitted that she not imply or say in anyway, she has
medical certificates for all her absences (see para 12, Rejoinder). However, she
had informed and sent to the school her absences via WhatsApp. She had also
informed the school that she had to undergo blood transfusion on 17 January
2020. The Claimant also refutes falsifying her medical condition or medical
certificates.

[17] The Claimant alleged dismissal in bad faith, that the Company's act was
perverse and was motivated by bad intentions. She avers that her dismissal
was without just cause or excuse and the act of the Company was against
equity and good conscience. The Claimant contends that the school had
breached the rules of natural justice and had deprived her of a decent
livelihood and security of employment.

Company's Case

[18] The School's primary contention centres around the Medical Certificate
produced by the Claimant that it undividedly doubtful; on the ground that the
Claimant had not submitted the Medical Certificate for as long as fourteen (14)
days after her first day of absence from work on 6 January 2020. Seemingly
dissatisfied, the Principal issued a Show Cause Letter to the Claimant on 20
January 2020 with three allegations of misconduct, the gist of which is
summarized by the school as below:

"Allegation No 1

"Failed to turn up for duties since 6 January 2020 until 16 January

2020 without authority of the School resulting in not only the students
 Shantini Parmasivam
[2023] MELRU 1052 v. Oakbridge International School pg 5

of her class being denied their proper education for the period of
absence but also the good image of the school arising from complaints
received from parents of the said students.

Allegation No 2

That the Claimant having absented herself from work from 6 January
2020 until 16 January 2020 without authority, was instructed by the
Director of the school and the Principal, including the Human
Resources Manager (HRM) to submit evidence, by Whatsapp
immediately that she was granted sick leave commencing on 6
January 2020 which the Claimant had failed to do so in disobedience
of the Superiors' lawful and reasonable instruction, including that of
the HRM, despite her assurance to the Company that she would do
so.

Allegation No 3

That she had falsely misrepresented to the Director of the School

including the Principal, that on each date of her absence from work for
the period from 6 January 2020 until 16 January 2020, she was
granted sick leave by a Doctor when in fact she was not granted any
sick leave on the said dates by her failure to Whatsapp the said sick
leave certificates immediately upon request by the Company despite
her assurance that she would do so. " (see: COB1, pp 57)

Pertinent chronology of events that the Company relies on in support

of its case of dismissal with just cause or excuse are laid down as
follows:

23 January 2020 - The Claimant gave her written explanation

(COB 1, p 8-9) 28 January 2020 - As the Claimant's written
explanation lacked essential information, by the Human
Resources Manager (HRM) issued a letter and requested the
Claimant to provide further particulars inter alia the time she
consulted the Hospital on 6 January 2020 and reasons she had
taken more than 2 weeks to submit the purported medical
certificate despite being requested on several occasions by the
School including the non compliance of her assurances.(COB
1, p 10)

30 January 2020 - The Claimant replied to the HRM but

evaded the request for the pertinent information on the date of
her visit to the Hospital on 6 January 2020 and the reason for
the delay of fourteen days to submit the purported medical
certificate for her first day of absence from work on 6 January
2020.(COB 1, p 13)

1 February 2020 - Taking into account the seriousness of

misconduct committed and other factors viz; the Claimant's
 Shantini Parmasivam
pg 6 v. Oakbridge International School [2023] MELRU 1052

employment status as a probationer, the position held by her

as a Teacher and a role model of the School, her
uncooperative attitude including the adverse effects caused by
her unauthorized absence from work in terms of denial of
providing continuity of lessons for her Class students, the
School had no other alternative but to dismiss the Claimant
with immediate effect. The Claimant was informed of the
School's decision vide a Letter of Dismissal dated 31 January
2020 (COB 1, pp 15-21)

Pleadings, Witnesses' Statements, Bundles Of Documents And Written

Submissions

[19] The relevant cause papers filed by both parties that this Court has
considered are as follows:

i. Statement of Case dated 7 June 2021 ("the Statement of Case");

ii. Statement in Reply dated 14 June 2021 ("the Statement in Reply");

iii. Rejoinder dated 17 July 2021 ("the Rejoinder");

iv. Claimants' Bundle of Documents (CLB-1) dated 11 August 2022;

v. Claimants' Bundle of Documents (CLB-2);

vi. Company's Bundle of Documents (COB-1) dated 27 September

2021;

vii. Company's Supplementary Bundle of Documents- Vol 1 (COB-2)

dated 27 September 2021;

viii. Company's Supplementary Bundle of Documents- Vol 2 (COB-3)

dated 21 July 2022;

ix. Company's Supplementary Bundle of Documents- Vol 3 (COB-4)

dated 27 July 2020

x. Company's Witness Statement by Denise Santa Devi P K Anandan

(COWS1);

xi. Company's Witness Statement by Woon ai Heng (COWS2);

xii. Company's Witness Statement by Lim Kwai Woh (COWS3);

xiii. Company's Witness Statement by Tan Swee Hoon (COWS4); and

xiv. Claimant's Witness Statement by Shanthini a/p Parmasivam

(CLWS1)
 Shantini Parmasivam
[2023] MELRU 1052 v. Oakbridge International School pg 7

xv. Company's Bundle of Authorites dated 13 November 2022;

xvi. Company's Supplementary Bundle of Authorites dated 5

December 2022;

xvii. Claimant's Written Statement dated 21 November 2022.

xviii. Claimant's Reply Written Statement dated 31 January 2023

xix. Company's Written Submission dated 15 November 2022.

xx. Company's Revised Written Submission dated 21 November 2022.

xxi. Company's Submission in Reply dated 5 December 2022.

The witnesses who had testified before this Court are as follows:

i. Danise Santa Devi P K Anandan (COW-1) the Principal of

the school at the meterial time;

ii. Woon Ai Heng (COW-2) the Director of the school at the

metarial time;

iii. Lim Kwai Woh (COW-3) the HR & IR Administrator of

Eduseeds (M) Sdn Bhd and also the School Administator;

iv. Tan Swee Hoon (COW-4) as Account Officer of the School

at the material time; and

v. The Claimant herself (CLW1)

Function Of The Industrial Court And Burden Of Proof

[20] The Court of Appeal in a recent case of Institute Of Technology Petronas

Sdn Bhd / Universiti Teknologi Petronas v. Amirul Fairuz Ahmad [2023] 2
MELR 133; [2023] 3 MLRA 312; [2023] 3 MLJ 15 (RAYUAN SIVIL NO A-
01(A)-122-02/2020) has adequately encapsulated the functions of this Court
which this Court need only to refer, as follows:

"[30] It is trite law that the function of the Industrial Court in dismissal
cases on a reference under s 20 of the Industrial Relations Act is
twofold, first, to determine whether the misconduct complained of by
the employer has been established, and secondly, whether the proven
misconduct constitutes just cause or excuse for the dismissal (see
Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 2 MLRA 23; [1995] 3
MLJ 537; [1995] 4 CLJ 449; [1996] 1 AMR 049, FC). In other words,
the Industrial Court will have to ascertain whether the Claimant had
been dismissed, and if so, whether the dism issal was with or without
just cause or excuse. Failure to determine these issues on the merits
 Shantini Parmasivam
pg 8 v. Oakbridge International School [2023] MELRU 1052

would be a jurisdictional error which would merit interference by

certiorari by the High Court.

[31] The Federal Court in Wong Yuen Hock v. Syarikat Hong Leong
Assurance Sdn Bhd & Another Appeal [1995] 1 MLRA 412; [1995] 2
MLJ 753; [1995] 3 CLJ 344; [1995] 2 AMR 2145 held that:

"On the authorities, we were of the view that the main and
only function of the Industrial Court in dealing with a
reference under s 20 of the Act (unless otherwise lawfully
provided by the terms of the reference) is to determine
whether the misconduct or irregularities complained of by the
management as the grounds of dismissal were in fact
committed by the workman, and if so, whether such grounds
constitute just cause or excuse for the dismissal."

[Emphasis Added]

[32] Therefore, in the present case, the duty of the Industrial Court is
to determine whether the misconduct complained of by the University
has been established, and whether the proven misconduct constitutes
just cause or excuse for the dismissal. It is also common ground that
the onus to prove, on a balance of probabilities that the dismissal was
for just cause or excuse, lies with the University (see Telekom Malaysia
Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 1 MELR
4; [2002] 1 MLRA 188; [2002] 3 MLJ 129; [2002] 3 CLJ 314; [2002] 3
AMR 2898).

[33] It is also important for the Industrial Court to determine whether

misconduct has been made out based on the evidence presented at the
trial. It is also pertinent to note that the Industrial Court cannot rely on
the Notes of Proceedings of the Domestic Inquiry only to decide
whether a prima facie case has been established."

Standard Of Proof

[21] It is trite that the standard of proof applicable to dismissal cases is the civil
standard of proof on a balance of probabilities as decided by the Court of
Appeal in Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair &
Anor [2002] 1 MELR 4; [2002] 1 MLRA 188; [2002] 3 MLJ 129; [2002] 3 CLJ
314; [2002] 3 AMR 2898 as follows:

"Thus, we can see that the preponderant view is that the Industrial
Court, when hearing a claim of unjust dismissal, even where the
ground is one of dishonest act, including "theft", is not required to be
satisfied beyond reasonable doubt that the employee has "committed
the offence", as in a criminal prosecution... In our view the passage
quoted from Administrative Law by HWR Wade & CF Forsyth offers
the clearest statement on the standard of proof required, that is the
civil standard based on balance of probabilities, which is flexible, so
 Shantini Parmasivam
[2023] MELRU 1052 v. Oakbridge International School pg 9

that the degree of probability required is proportionate to the nature

and gravity of the issue."

Law On Absenteeism

[22] The jurisprudence pertaining to disobedience to reasonable and valid

order from the employers has been well embedded. In Pan Global Textiles Bhd
Pulau Pinang V. Ang Beng Teik [2001] 1 MELR 39; [2001] 1 MLRA 657;
[2002] 2 MLJ 27; [2002] 1 CLJ 181; [2002] 1 AMR 469 his lordship Ahmad
Fairuz FCJ speaking on behalf of the Federal Court held as follows:

"Held: Per Ahmad Fairuz FCJ

[1a] If an employee tries to disobey an apparently lawful order on the

ground of illegality it will be difficult for the management to maintain
discipline and industrial peace. It is the duty of the employee to first
obey the order and then challenge it (BR Ghaiye on Misconduct in
Employment). (p 197 g)

[2] No employee can claim as a matter of right leave of absence

without permission and when there might not be any permission for
the same. Remaining absent without any permission is gross violation
of discipline. Hence, continued absence from work without permission
will constitute misconduct justifying the discharge of a workman from
service (OP Malhotra on The Law of Industrial Disputes). (pp 197 i &
198 b)"

Guiding Precedents

[23] In the Industrial Court case of Shanthi Selvam And Supcheng Fasteners Sdn
Bhd [2020] MELRU 283, (Award No 283 OF 2020), it was held, at paragraph
[24] of the said Award, as follows:

"[24] As there was no evidence adduced by the Claimant to show that

she came to work on 15 October 2018, 16 October 2018 and 17
October 2018 neither was there any evidence to show that she had
obtained approval from the Company to not come to work on 15
October 2018, 16 October 2018 and 17 October 2018, the Company
therefore had proven the misconduct against the Claimant."

[24] In Sarimah Othman v. Prasarana Malaysia Berhad [2019] MELRU 1178

(Award No: 1178 OF 2019) the Industrial Court Chairman held at para 33 of
the said Award as follows:

"[33] The Court observes that notwithstanding the Respondents'

policy, any employee should submit his/her medical certificate within
a reasonable time upon his return to work. The Court finds it
unreasonable for the Claimant to present her medical certificate only
after she is charged for being absent"
 Shantini Parmasivam
pg 10 v. Oakbridge International School [2023] MELRU 1052

[25] The Industrial Court also had the occassion to observe with regard to the
explanation on employees' medical condition.

1) On the issue of fitness to travel, in the case of Hazellah Abdul

Rahman v. Perusahaan Otomobil Nasional Berhad [2010] 8 MELR 203
(Award No 1245 of 2010) the Chairman had this to say:

"The Claimant's case is that he did not obtain the requisite

MCs because he had been too ill to travel to the
clinic/hospital. The respondent submits that this is not a
reasonable explanation and is merely an excuse. The Court
agrees."

[Emphasis Added]

2) In respect of the timeline for a medical document to be submitted to

the

Employer, in the case of JC Freight & Enterprise v. Ngoh Looi [2010] 1

MELR 246; [2010] 1 ILR 546, the Industrial Court Chairman held as
follows:

"[50] In Etonic Garment Mfg Sdn Bhd v. Kalaimagal

Muthusamy [1998] 2 MELR 722; [1998] 3 ILR 698 (Award
No 587 of 1998), at p 703 the learned chairman states: The
issue for determination before this Court is whether the
Claimant had been granted leave of absence for that period of
time, whether leave was automatically approved on filing the
leave application and whether her brother had informed the
Company of her long absence due to sickness in India. The
burden of proving those assertions lies with the Claimant and
not with the Company."

[Emphasis Added]

It is settled employees have the right of absence on the ground

of sickness but they must produce evidence of illness and
inform the employer within reasonable time. It is not
reasonable for the Claimant to tender her medical document
only on 25 March 1997 when she was supposed to be on sick
leave since 20 February1997.

[Emphasis Added]"

3) In the case of Hemavathi Venkitaraman v. Euro Chairs Manufacturer

(M) Sdn Bhd [2020] MELRU 752, (Award No 750 OF 2020), the
Industrial Court Chairman had this to say:
 Shantini Parmasivam
[2023] MELRU 1052 v. Oakbridge International School pg 11

[17] If the Claimant had sufficient reason for her medical

condition and that if she genuinely was unable to report to
work on those days when she was absent, she could have quite
easily forwarded her medical certificates to the Company or
her superior by sending the medical certificates justifying her
reasons for absenteeism through her family members or
otherwise. The Claimant could have even taken advantage of
various modern communication means available like Email,
WhatsApp or Short Message Service (SMS) to inform the
Company of her condition. The Claimant did none of these.
The Claimant simply did nothing to notify the Company the
reason for her absenteeism until 23 July 2018."

The Issues

[26] Having analyzed the facts of the case and guided by the decisions in the
aforesaid precedents, it is apparent that the issues for determination by this
Court are as follows:

a) Whether the misconduct of absenteesm were in fact committed by

the Claimant; and

b) If the answer is yes, whether such misconduct of absenteeism that

the Claimant had committed constitute just cause or excuse for her
dismissal.

Evaluation Of Evidence And Court's Finding

[27] To begin with, it would be beneficial to observe the following chronology

of the relevant events leading to the dismissal of the Claimant:

DATE EVENTS

6 January 2020 - Claimant informed the Principal she was sick and
needed to be admitted to hospital (COB 2, p 38)

6 January 2020 - The Director of School (Mdm Judith) requested the

Claimant (2:33 pm) to text or email the Medical Certificate for 6
January 2020 the Claimant had promised to submit (COB 2,Page 40).

8 January 2020 - The Principal of School texted the Claimant vide

whatsApp (06:32 am) that she must produce the MC for 6 January
2020 by Monday (COB 2,page 39)

9 January 2020 - The Claimant replied Director's Whatsapp of 6

January 2020 giving an assurance she would submit the MC for 6
January 2020 (COB 2,page 40)
 Shantini Parmasivam
pg 12 v. Oakbridge International School [2023] MELRU 1052

15 January 2020 - The Director of School by Whatsapp to the

Claimant had directed the Claimant to text the MC by the same day.
(COB 2, p 41)

16 January 2020 - The Director of the School issued a Letter of

Abandonment of her employment Contract to Claimant when the
Claimant failed to submit her MC for 6 January 2020 by 15 January
2020 (COB 1,Page 3-4)

16 January 2020 - The Claimant replied to the Director by Whatsapp

that she would submit all the documents on 17 January 2020
(COB2,page 41)

20 January 2020 - The School was doubtful that since the Claimant
had not submitted the Medical Certificate after fourteen (14) days of
her first day of absence from work on 6 January 2020, the Principal
issued a Show Cause Letter to the Claimant on 20 January 2020
alleging therein three allegations of misconduct (supra)

23 January 2020 - The Claimant gave her written explanation (COB 1,

p 8-9)

28 January 2020 - The letter of explanation lacked essential

information and as such by a letter dated 28 January 2020, the Human
Resources Manager requested the Claimant for further particulars
inter alia the time she consulted the Hospital on 6 January 2020 and
reasons she had taken more than 2 weeks to submit the purported
medical certificate despite being requested on several occasions by the
School and her assurance to so comply (COB 1, p 10)

30 January 2020 - The Claimant replied to the HRM but did not
provide pertinent information on the date of her visit to the Hospital
on 6 January 2020 and the reason for the delay of fourteen days to
submit the purported Medical certificate for her first day of absence
from work on 6 January 2020.(COB 1, p 13)

1 February 2020 - The Claimant was dismissed by the school vide a

Letter of Dismissal. The school took into account the seriousness of
the misconduct committed and other factors viz; the Claimant's
employment status as a probationer, the position held by her as a
teacher, her non-cooperative attitude including the adverse effects
caused by her unauthorized absence from work in terms of denial of
providing continuity of lessons for her students (COB 1, pp 15-21)

Whether The Acts Of Misconduct Were In Fact Committed By The Claimant

[28] In the course of discharging its burden to prove misconduct of absenteesm

by the Claimant, the school had produced four witnesses. The relevant and
material facts of the allegations of misconduct of absenteesm were testified in
 Shantini Parmasivam
[2023] MELRU 1052 v. Oakbridge International School pg 13

the testimony of COW 1 and COW 2 as reproduced in the followings.

Allegation 1 - Absence Without Leave (From 6 January 2020 Until 16

January 2020)

COW1 - Denise Santa Devi P K Anandan (who is the Principal of the

School)

Q9: What happened after that ?

A9: On 6 January 2020,10:10am, she sent me a Whatsapp

message as she needed to be admitted to a hospital.

Q10: Please refer to p 8 COB Supplementary Vol 2 (COBS

Vol 2) What is this document?

A10: This is text of the Whatsapp message sent to me at 10:10

am on 6 January 2020

Q11: What was your response?

A11: I replied on the same day at 13:04 and that i had been
doing all her classes since morning and also informed her that
the medical card is only issued for confirmed employees.

Q14: Please refer to p 9 COBS Vol 2. What is this document ?

A14: This is my Whatsapp reply i sent to the Claimant on 6

January 2020.

Q15: Did the Claimant report for duty from 7 January 2020 to
8 January 2020?

A15: The Claimant did not report for duty on 7 January 2020
and 8 January 2020.

Q16: Did the Claimant informed you or the Director that she
would be on sick Leave on these dates?

A16: No

Q19: Did the Claimant report for work on 9 January 2020 to

15th January?

A19: The Claimant continued to be absent from work from 9

January 2020 until 15 January 2020 without confirmation that
she was granted sick leave.

Q23: Did the Claimant report for work on 16 January 2020?

 Shantini Parmasivam
pg 14 v. Oakbridge International School [2023] MELRU 1052

A23: No

COW 2 - Woon Ai Heng (who is the Director of the School)

Q6: How are you involved in the present matter ?

A6: I oversee the entire operational affairs of the School

including the formulation of the School Policies including its
Rules and Regulations as well as selection of Teachers and
issuance of Disciplinary Punishment letters to delinquent
Teachers and administrative /office staff of the School.

Q7: What is the Rule of the School on Teachers' absence from

work on medical grounds ?

A7: Under the Teachers' Handbook, Section C cl 4, that if a

Teacher is unable to attend to her duties due to illness, she is
to inform the School on each occasion 30 minutes before the
School starts.

Q8: Please look at para 7 of the Claimant's Rejoinder. The

Claimant had alleged that the Teachers' Handbook was only
given to her after her dismissal. Is this correct?

A8: This is not correct because she had acknowledged receipt

of the Teachers' Handbook when she accepted the offer of
employment on 2 January 2020

Q9: Please look at the Letter of Appointment at pp 1 to 2 of

the COB. Can you state which paragraph of the said letter to
supports your testimony that she had received the Teachers'
Handbook?

A9: At para 5.1, page 1 of the letter. At p 2 the Claimant had

signed the said letter acknowledging acceptance of the terms
and conditions and this includes receipt of the Teachers'
Handbook.

Q10: When should the original Medical Certificate(MC) be

submitted to the School ?

A10: The original MC should be submitted together with the

absence from duty Application duly completed and signed for
the days of illness.

Q11: How should the MC be submitted to the School ?

A11: The MC is to be handed personally to the School

Administrator on the day the Teacher resumes duty.
 Shantini Parmasivam
[2023] MELRU 1052 v. Oakbridge International School pg 15

Q12: Did the Claimant inform the School when she would
resume duty ?

A12: No

Q13: When did you become aware of the Claimant's absence

from work?

A13: On 6 January 2020, was informed by the Principal of the

School.

Q14: What did you do then?

A14: On 6 January 2020 at 2;33 pm i sent a Whatsapp

message to the Claimant to text or email the MC.

Q16: What was the Claimant's response to your Whatsapp of

6 January 2020?

A16: She replied, "Hi ma'am sure" on 9 January 2020.

Q17: Did the Claimant send the MC as requested from you?

A17: No

Allegation 2 - Insubordination / Disobedience To Order COW1

(DENISE SANTA DEVI P.K ANANDAN)

Q12: Are you aware of any other officials of the Company

who had communicated with the Claimant when she did not
report for duty on 6 January 20207?

A12: I was informed by the Director that she also instructed

the Claimant to email or Whatsapp the Medical Certificate to
the School for her absence for 6 January 2020

Q17: What did you do then?

A17: I sent a Whatsapp message to the Claimant on 8 January

2020, at 06:32 am instructing her to Whatsapp the medical
certificates to me for her absence from work for 6 to 8 January
2020 by Monday, 13 January 2020.

Q20: What action did the School take after this?

A21: The Director of the School sent two Whatsapp messages

on 15 January 2020 to the Claimant. The 1st one at 11.42 am
and the 2nd one at 12:06 pm instructing her to send the
Medical Certificates to the School.
 Shantini Parmasivam
pg 16 v. Oakbridge International School [2023] MELRU 1052

Q21: Did the Claimant comply with the instruction of the

Director's Whatsapp messages to send the Medical Certificates
to the School immediately?

A21: No.

Q22: Did the Claimant respond to the Director's Whatsapp

message of 15 January 2020?

A22: Yes. On 16 January 2020, at 2:03 pm the Claimant

replied that she would send the medical certificates the next
day (ie 17 January 2020)

COW 2 (VOON Al HENG)

"Q13: When did you become aware of the Claimant's absence

from work?

A13: On 6 January 2020, was informed by the Principal of the

School

Q14: What did you do then?

A14: On 6 January 2020 at 2:33 pm i sent a Whatsapp

message to the Claimant to text or email the MC

Q16: What was the Claimant's response to your Whatsapp of

6 January 2020?

A16: She replied, "Hi ma'am sure" on 9 January 2020

Q17 Did the Claimant send the MC as requested from you?

A. No

Q19: What did you do then?

A19: On 15 January 2020,11:42 am i sent a WhatsApp to the

Claimant to send the medical slip by the same day

Q21: What was the Claimant's response to your WhatsApp

message of 15 January 2020?

A21: On the same day, the Claimant stated she would update
all the documents by that week

Q22: Did the Claimant communicate further with you after 15

January 2020?
 Shantini Parmasivam
[2023] MELRU 1052 v. Oakbridge International School pg 17

A22: Yes. On 16 January, the Claimant stated that she would

submit all documents on 17 January 2020.

Allegation 3 - Misrepresentation of Information

COW1 (Denise Santa Devi P K Anandan)

Q25: Why did you issue the SCL (show cause letter) to the
Claimant?

A25: From her evasive responses to the School instruction to

submit the 1st Medical certificate for her absence on 6 January
2020 to the School, i strongly suspected and believed that the
Claimant did not have any medical certificate for her period of
absence from work from 6 January 2020 until 16 January
2020.

Q26: What evidence do you have to support your suspicion?

A26: Firstly, in her Whatsapp messages to me on 6 January

2020 from 10:10 am until 16:18 pm the Claimant was still at
home and was at the Hospital at 21:23 pm. Secondly, the
Claimant underwent the blood test at 10:56 pm as indicated in
the Laboratory report, which the Claimant had attached via
the said Whatsapp message.

Q 29: Please look at pp 8 to 10 of COBS Vol 2. What are these

documents?

A29: These pages relate to the Claimant's Whatsapp messages

to me to show that she was never in possession of a Medical
Certificate for 6 January 2020 because she was still at home
until 16:18 pm

Q 31: Please inform this Honourable Court what were the acts
of misconduct committed by the Claimant ?

A31: There were three allegations of misconduct committed

by her as follows a. The 1st allegation was that she had failed
to turn up for her teaching duties from 6 January 2020 until 16
January 2020 without authority of the School. b The 2nd
Allegation was that she had failed to comply with my
instruction as well as that of the Director of the School, Mdm
Judith Woon Ai Heng to WhatsApp the Sick Certificate for 6
January 2020 immediately as well as other Sick Certificates
for the period of her absence from work for the period from 7
January 2020 until 16 January 2020. c. The 3rd Allegation
was that she had falsely represented to me and the Director
that she was granted Sick Leave for her period of absence
 Shantini Parmasivam
pg 18 v. Oakbridge International School [2023] MELRU 1052

from 6 January 2020 until 16 January 2020 by her failure to

submit the same on the dates and times as directed by me and
the Director in respect of the Sick leave certificates that she
had given an assurance that she would do so.

COW 2 (Voon Ai Heng)

"Q23: What did you do then after receiving the Claimant's

reply on 15 January 20207?

A23: The Principal and i deliberated on the matter due to the

Claimant's evasive attitude on our instructions to submit the
Medical Certificate. We suspected that the Claimant had no
medical certificates for her absence from 6 January 2020 until
15 January 2020 due to the Claimant's failure to submit the
relevant medical certificates especially for the medical
certificate for her absence on 6 January 2020, where the
Principal instructed the Claimant on 8 January 2020; 06.31
am to submit the Medical Certificate by Monday, 13 January
2020.

Q24 What did you do subsequently?

A24: As the Claimant had shown no concern and importance

to my instruction including that of the Principal, i then issued
a letter of abandonment of employment on 16 January 2020 to
the Claimant

Q27: What made you to suspect that the Claimant did not
possess any medical certificate?

A27: This was mainly her failure to even submit the medical
certificate for the 15 day of absence for 6 January 2020 despite
several reminders by me and the Principal

Q28. What are the key contents of the Letter of Abandonment

of employment to the Claimant ?

A28: The Claimant was informed that arising from her

uncertainty on her absence from work the School would
consider her employment contract is frustrated In that it is
incapable of continued performance. The Claimant was also
put on Notice that if she failed to report for work by 09.00 am
on 20 January and her absence from work with a valid Sick
leave Certificate, the School would take the stand that she
would no longer willing or interested to perform her
contractual duties and obligations and she would be deemed
to have abandoned her contract of employment with effect
from 20 January 2020
 Shantini Parmasivam
[2023] MELRU 1052 v. Oakbridge International School pg 19

Q30: What action did you then take ?

A30: I instructed the Principal to issue a show cause letter for

her days of absence from work without any medical certificate
until 16 January 20207"

[29] It must be observed that in the face of the explicit evidence presented by
the school in the testimonies of COW1 and COW2 above, the Claimant has
failed to materially challenge the evidence adduced by the school. This Court
is convinced that prima facie evidence as to the allegations levelled against the
Claimant had been made out. Based on the testimony of COW 1 and COW 2,
the Claimant is guilty of these three misconducts.

[30] For the misconduct of Absence from work, it is clear from the evidence
that the Claimant had admitted that she did not have any medical certificate to
support her absence from work from 7 January 2020 until 16 January 2020.
The Claimant however maintained her stand that she was issued with a
medical certificate on 6 January 2020. When asked during cross examination
to produce the said MC, she was unable to do so. In respect of the allegation of
insubordination, the Company had produced credible evidence through the
testimony of COW 1 and COW 2 in support of this allegation. As such that
the school had successfully discharged its burden of proof that the Claimant
had committed an act of insubordination. The Claimant had disobeyed their
instructions to submit the purported medical certificate within a reasonable
period of time.

[31] As for misrepresentation of information (ie Lying that the Claimant was
in possession of a medical certificate for her absence without leave) this Court
is satisfied that the Claimant had failed to tell the School Principal and the
Director the truth as testified by COW 1 and COW 2 (who were also the
Claimant's superiors) including the Whatsapp message exchanged amongst
them wherein the Claimant had given an assurance to her superiors that she
would submit the said MC despite her earlier assurance to do so. It was only
after 14 days when the school had on 20 January 2020 issued the Show Cause
letter to the Claimant that the Claimant finally thereafter responded to the
issue of the medical certificate. This is far from any stretch of defination of
reasonableness insofar as an employee and employer relation is concerned.

[32] On this point, the Industrial Court in the case of Shanthi Selvam v.
Supcheng Fasteners Sdn Bhd [2020] MELRU 283, (Award No 283 OF 2020),
had this to say:

"[24] As there was no evidence adduced by the Claimant to show that

she came to work on 15 October 2018, 16 October 2018 and 17
October 2018 neither was there any evidence to show that she had
obtained approval from the Company to not come to work on 15
October 2018, 16 October 2018 and 17 October 2018, the Company
therefore had proven the misconduct against the Claimant. [Please see
para 24 of the said Award ]
 Shantini Parmasivam
pg 20 v. Oakbridge International School [2023] MELRU 1052

[33] The Claimant's explanation during coss examination as to why she did
not immediately consult a doctor during working hours as she had to wait for
her brother to drive her to the hospital and that she would not travel by grab,
taxi and even the ambulance is devoid of any merit. This is because the
Claimant had failed to produce her brother in Court to confirm her allegation.
If at all the Claimant was given the MC on 6 January 2020, she would have
sent it to the Company by Whatsapp immediately to the School. This was not
done despite the Claimant's assurances to do so and the Company's repeated
reminders.

[34] Unreasonably, it took the Claimant 14 days and that is after the Company
had issued the Show Cause Letter to her on 20 January 2020 for the Claimant
to respond. This Court finds support on this issue in the case of Sarimah
Othman v. Prasarana Malaysia Berhad (supra) , where it was held that
notwithstanding the Respondents' policy, any employee should submit his/her
medical certificate within a reasonable time upon his return to work. In that
case, the Court found it unreasonable for the Claimant to present her medical
certificate only after she is charged for being absent. In the instant case before
this Court, the Claimant kept silent as to when she would return to work; a
conduct unbecoming of in particular, a newly started probationer like the
Claimant.

[35] It is pertinent to note that the Claimant could have conveniently

forwarded the MCs through telecommunication technologies such as
whatsApp, Telegram, emails etc; nevertheless did not adduce evidence as to
why she had failed to take advantage of these modern technologies (see:
Hemavathi Venkitaraman v. Euro Chairs Manufacturer (M) Sdn Bhd (supra))

[36] In JC Freight & Enterprise V. Ngoh Looi [2010] 1 MELR 246; [2010] 1 ILR
546 (supra) one of the issues was whether the Claimant's brother had informed
the Company of her long absence due to sickness in India. It was held that the
burden of proving those assertions lies with the Claimant and not with the
Company. It was further held that, it is settled that employees have the right of
absence on the ground of sickness but they must produce evidence of illness
and inform the employer within reasonable time. It is not reasonable for the
Claimant to tender her medical document only on 25 March 1997 when she
was supposed to be on sick leave since 20 February 1997.

Whether The Acts Of Misconduct The Claimant Had Committed Constitute

Just Cause Or Excuse For The Dismissal

[37] The fact that the Claimant had committed serious acts of misconduct, in
particular by being absent without leave for eight continuous working days,
warrants a punishment of dismissal. In support of this contention, this Court
can do no better than to refer to the Federal Court case of Pan Global Textiles
Bhd Pulau Pinang v. Ang Beng Teik [2001] 1 MELR 39; [2001] 1 MLRA 657;
[2002] 2 MLJ 27; [2002] 1 CLJ 181; [2002] 1 AMR 469 (supra) where the
Federal Court - at the risk of repetition - held as follows:
 Shantini Parmasivam
[2023] MELRU 1052 v. Oakbridge International School pg 21

"[2] No employee can claim as a matter of right leave of absence

without permission and when there might not be any permission for
the same. Remaining absent without any permission is gross violation
of discipline. Hence, continued absence from work without permission
will constitute misconduct justifying the discharge of a workman from
service (OP Malhotra on The Law of Industrial Disputes). (pp 197 i &
198 b)"

[38] In the Industrial Court case of Syahrizal Salam @ Mansor V. Desaru Damai
Beach Resort Sdn Bhd [2018] 1 MELR 527; [2018] 1 ILR 381 it was held as
follows:

"[38] This Court is of the opinion that being a probationer, the

Claimant's actions in this Case is very unbecoming, as the number of
leave days required by the Claimant had not been one (1) or two (2)
days but much more than that. Especially so, considering the fact that
his position in the Company was the Human Resource Manager and
the responsibilities that come with that position is of great importance,
the Claimant should have taken the trouble to contact his superior and
or the Resort Manager to explain the situation and request for the
approval of his leave in order to settle his personal matter and return
to work as soon as possible.

[41] This Court also opines that the Claimant's nonchalant attitude in
handling this matter left it open to the Company to exercise its
managerial prerogative of dismissal against him. The number of days
where the Claimant had been absent from work without prior
approval and without informing the Company had made the
Company lose all trust and confidence in the Claimant, not only as an
employee but more so an employee holding such big responsibility
who is incidentally still on probation."

Other Related Issues

The Claimant Was Prevented By The School Director To Hand Over Her
Documents On The Allegation Of Absenteeism

[39] On the evidence, it is unchallenged that the Claimant had only submitted
the MC when replying to the show case letter ie 2 weeks after being first
absented herself on 6 January 2020. This is notwithstanding repeated demands
from the school for the Claimant to submit her MC as can be seen in the
testimonies of COW1 and COW2. The Claimant had also omitted from
providing reasons for the delay for 14 days in submitting her MC. This Court
is of the views that any reasonable employer would have reasonably taken
similar action in refusing to accept the late submission of documents
pertaining to the Claimant's absenteeism more so after the Claimant being
served with a letter of termination. The Claimant has failed in this contention.

The School's Principal Has Allegedly Failed To Visit The Claimant And
Collect The Medical Certificate And Documents Related To Her Health Issues
 Shantini Parmasivam
pg 22 v. Oakbridge International School [2023] MELRU 1052

As The Claimant Could Not Go To The School Because She Was Very Ill
And At That Time Her Husband Was Away Overseas

[40] This Court has considered the Claimant's contention as above and found
no merit in her submission. The reason for this Court's finding is that the onus
of proof is on the Claimant that she had been issued with the relevant medical
certificate to confirm that she was unfit to work on the days that she had been
absent. The burden to prove is not on the school; notwithstanding the school
principal's impugned consensus to visit her and collect from her the documents
relating to her absenteeism.

[41] The Claimant is responsible to ensure that the relevant medical

documents were ipso facto submitted to her superiors by all means; so to speak
either by physically sending them or by way of current telecommunication
applications. Relying on her superiors' promise to see her at the hospital and
collect the documents from her is non consonent to the employer - employee
relations. The Claimant had failed to take remedial steps upon realizing that
her superiors were not coming to visit her and collect the documents from her.
This Court is of further views that the Claimant's dismissal is safe, in the
circumstances.

The School's Reluctance Despite Repeated Verbal Requests To Provide Her

With The Handbook

[42] On the evidence, the Claimant did not adduce any evidence that she had
requested for a copy of the handbook from the school. All that was alleged by
the Claimant was the requests were made orally, without documentary proof.
Be that as it may, it is important to note that the Claimant had been absent
after merely working for 2 days. She continued to be absent from 6 January
2020 until 31 January 2020 when she was served with the dismissal letter. In
such a situation, it is understandable why the school had been reluctant to
provide a copy of the handbook to an employee with the ongoing attendance
issues.

[43] This issue is irrelevant to the Claimant's case; in particular when the
Claimant was specifically instructed by the school on numerous occassions, to
submit her medical certificate which the Claimant had failed to do. To put it in
another way, the non provision of the school handbook to the Claimant - in
the circumstances of the case, is immaterial to the issues of the Claimant's
absenteeism at hand. The Claimant's misconduct has no nexus with the
question of whether or not the Claimant was provided with a copy of the
handbook.

[44] On the contrary, it must be said that the Claimant's case goes beyond
repair by her own admission. The straw that broke the camel's back is when
the Claimant admits that she did not report for work; albeit her claim that she
had already informed the school about her absence which obviously
insufficient. The Claimant's responses to the school's entire pleading, is plainly
that the Claimant admitted that she did not imply or say in anyway, she has
medical certificates for all her absences (see para 12, Rejoinder). That being so,
 Shantini Parmasivam
[2023] MELRU 1052 v. Oakbridge International School pg 23

this Court in no hesitation, dismisses the Claimant's case.

Decision

[45] In the upshot, this Court found that the school had successfully proved on
the balance of probabilities that the Claimant had committed the misconduct
of absenteeism, together with all of the allegations levelled against the
Claimant. The proven acts of misconduct warrants the subsequent action of
dismissal by the school. This Court found that the dismissal of the Claimant
was with just cause or excuse.

[46] Having considered the pleadings, the totality of evidence produced by

both parties and the Written Submissions filed and bearing in mind the
provision in s 30(5) of the Industrial Relations Act 1967 by which virtue this
Court shall act according to equity, good conscience and the substantial merit
of the case without regard to technicalities and legal form, this Court hereby
order that the Claimant's case be hereby dismissed.