Dalia BT Ash'Ari V Malaysia Airports (Niaga) SDN BHD (2020) 2 ILJ 8

JOBNAME: No Job Name PAGE: 1 SESS: 1 OUTPUT: Thu Dec 10 18:16:15 2020
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8 Industrial Law Journal [2020] 2 ILJ
Dalia bt Ash’Ari v Malaysia Airports (Niaga) A

Sdn Bhd
INDUSTRIAL COURT (KUALA LUMPUR) — AWARD NO 178 OF B

2020
PARAMALINGAM A/L J DORAISAMY, C
2 APRIL 2019
C
Labour Law — Industrial Court — Unfair dismissal —
Whether there was misconduct — Whether the misconduct
constitutes just cause or excuse for dismissal — Industrial
Relations Act 1967 s 20(3)
D
The claimant was dismissed from employment as senior
executive, advertising & promotions after the company had
conducted a domestic inquiry and later on decided that they
could no longer repose the necessary trust and confidence in
E
the claimant to be retained in her employment. The
company viewed the claimant’s conduct of travelling for
holiday whilst being on medical leave as a serious
misconduct. The claimant however, contended that her
dismissal by the company was without just cause or excuse
F
and thus prayed for reinstatement to her former position in
the company. The issues before the Industrial Court to
consider were: (a) whether the claimant was guilty of the
allegations of misconduct levelled against her by the
company; and (b) whether the allegations of misconduct
G
constitutes just cause or excuse for the claimant’s dismissal.
Held, dismissing the claim:

(1) It is evident that the claimant had abused the very
purpose of the medical certificate by travelling for a H
holiday. Whether she rested and/or cured herself
during the holiday becomes irrelevant. She was not
supposed to travel whilst being sick in the first place.
She had led the company to believe that she was
genuinely sick and resting at home when she I
informed them that she was on medical leave. She
had clearly betrayed the trust and confidence reposed
in her by the company by travelling for a holiday
whilst purportedly being sick. It does not matter one
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Dalia bt Ash’Ari v Malaysia Airports (Niaga) Sdn

[2020] 2 ILJ Bhd (Paramalingam a/l J Doraisamy C) 9
A jot whether the company’s guidelines are silent on an

abuse of medical leave being an act of serious
misconduct (see para 34).
(2) The evidential burden is on the claimant to prove that
the claimant’s superior had mala fide intention in not
B
approving her annual leave application in time. The
evidence before this court shows that the claimant’s
superior simply was not aware of the application until
the claimant sent her a WhatsApp message to which
she immediately approved the claimant’s annual
C
leave application. There was no evidence produced by
the claimant before the court that shows the
existence of a mala fide intention on the part of the
company to withhold the claimant’s annual leave
application. The claimant has clearly failed to
D
discharge that evidential burden. This court finds that
the claimant had committed a serious misconduct
when she abused her medical leave by travelling for a
holiday with her family (see paras 40 & 42).
E (3) The company has succeeded to prove on a balance of
probabilities that the claimant is guilty of a serious
misconduct when she abused her medical leave by
travelling for a holiday. She had then exhibited her
sheer defiance and rebelliousness by posting videos of
F her holiday during that period. The court is satisfied
and do hereby finds that the claimant’s dismissal by
the company was done with just cause and excuse
(see paras 43 & 46).
G [Bahasa Malaysia summary

Penuntut telah dipecat daripada pekerjaan sebagai
eksekutif kanan, pengiklanan & promosi selepas syarikat
menjalankan siasatan dalaman dan selepas itu
memutuskan bahawa mereka tidak lagi boleh meletakkan
H kepercayaan sepatutnya dan keyakinan kepada penuntut
untuk dikekalkan di dalam pekerjaan. Syarikat memandang
tindakan penuntut dalam melancong untuk bercuti semasa
dalam cuti sakit adalah kesalahan tingkah laku yang serius.
Penuntut walau bagaimanapun, menyatakan bahawa
I pemecatan syarikat adalah tanpa sebab dan alasan yang
adil dan oleh itu, menuntut untuk dikembalikan jawatan
lamanya di syarikat. Isu-isu di hadapan Mahkamah
Perusahaan untuk pertimbangan adalah: (a) sama ada
penuntut bersalah atas alegasi-alegasi salah laku yang
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dibuat ke atasnya oleh syarikat; dan (b) sama ada A

alegasi-alegasi salah laku menjurus kepada sebab atau
alasan yang adil untuk pemecatan penuntut.
Diputuskan, menolak tuntutan:

B
(1) Ia terbukti bahawa penuntut telah menyalahgunakan
tujuan sebenar cuti sakit dengan melancong untuk
bercuti. Sama ada beliau telah rehat sepenuhnya
dan/atau sembuh semasa percutian menjadi tidak
relevan. Beliau tidak patut melancong semasa sedang C
sakit pada mulanya. Beliau telah membuat syarikat
untuk percaya bahawa beliau benar-benar sakit dan
berehat di rumah apabila beliau memaklumkan
bahawa beliau sedang dalam cuti sakit. Beliau telah
jelasnya mengkhianati kepercayaan dan keyakinan D
yang diberikan olehnya daripada syarikat dengan
melancong untuk bercuti semasa kononnya sedang
sakit. Ia tidak langsung menjadi isu sama ada garis
panduan syarikat adalah senyap atas
penyalahgunaan cuti sakit sebagai satu tindakan E
salah laku yang serius (lihat perenggan 34).
(2) Beban keterangan adalah atas penuntut untuk
membuktikan bahawa pihak atasan penuntut
mempunyai niat buruk dengan tidak meluluskan
F
permohonan cuti tahunannya pada waktunya.
Keterangan di mahkamah menunjukkan bahawa
pihak atasan penunut hanya tidak sedar mengenai
permohonan penuntut sehinggalah penuntut
menghantar kiriman mesej WhatsApp di mana beliau
G
terus meluluskan permohonan cuti tahunan
penuntut. Tiada keterangan yang ditunjukkan
penuntut di mahkamah yang menunjukkan
kewujudan niat buruk pada bahagian syarikat untuk
menahan permohonan cuti tahunan penuntut.
H
Penuntut jelasnya telah gagal untuk melepaskan
beban keterangan. Mahkamah ini mendapati bahawa
penuntut telah melakukan salah laku yang serius
apabila beliau menyalahgunakan cuti sakit dengan
melancong untuk bercuti bersama keluarganya (lihat
I
perenggan-perenggan 40 & 42).
(3) Syarikat telah berjaya membuktikan atas imbangan
kebarangkalian bahawa penuntut adalah bersalah
atas tingkah laku serius apabila beliau
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A menyalahgunakan cuti sakit dengan melancong

untuk bercuti. Beliau telah pun menunjukkan
penolakan dan pemberontakan dengan memuat naik
video-video percutiannya semasa tempoh tersebut.
Mahkamah berpuas hati dan dengan ini mendapati
B pemecatan penuntut oleh syarikat dilakukan dengan
sebab dan alasan yang adil (lihat
perenggan-perenggan 43 & 46).]
Cases referred to
C
Ambank Bhd v Rasidah Othman [2007] 4 ILR 656; [2007] 9
MELR 352, IC (refd)
Etonic Garment Mfg Sdn Bhd v Kalaimagal Muthusamy
[1998] 3 ILR 698; [1998] 2 MELR 722, IC (refd)
D Farahtina Kassim & Anor v Malaysian Airline System Bhd
[2018] 2 LNS 1209; [2018] MELRU 1209, IC (refd)
General Tyre Retreaders Sdn Bhd v Vadiveloo Munusamy
[1996] 2 ILR 1419; [1999] 1 MELR 309, IC (refd)
E
Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 2 MLJ 129;
[1981] 1 MLRA 415, FC (refd)
Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & other
appeals [1996] 1 MLJ 481; [1997] 1 CLJ 665; [1996] 1
MELR 216, CA (refd)
F Ireka Construction Bhd v Chantiravathan a/l Subramaniam
James [1995] 2 ILR 11; [1995] 1 MELR 373, IC (refd)
Maju Holdings Sdn Bhd v Nor Ashika Mohamed Dom [2004]
1 ILR 1026; [2004] 1 MELR 79, IC (refd)
G Sarimah Lee v Freescale Semiconductor (M) Sdn Bhd [2010]
1 ILR 103; [2009] 2 MELR 783, IC (refd)
Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd
& Anor Appeal [1995] 2 MLJ 753; [1995] CLJ 344; [1995]
1 MLRA 412, FC (refd)
H
Legislation referred to
Industrial Relations Act 1967 s 20(3)
Nanthini Nair Ramakrishnan together with Faridah Begum

I Abdul Rahman (Luknes, Faridah & Assoc.) Counsel for the
Claimant
Thavalingam Thavarajah together with Michelle Paulsen
(Lee Hishammuddin Allen & Gledhill) Counsel for the
Company
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A
Paramalingam a/l J Doraisamy C:
REFERENCE:
This is a reference made under s 20(3) of the Industrial B

Relations Act 1967 (Act 177), arising out of the dismissal of
Dalia Binti Ash’ari (hereinafter referred to as “the Claimant”)
by Malaysia Airports (Niaga) Sdn. Bhd. (hereinafter referred
to as “the Company”) on 1st November 2018.
C
AWARD
[1] The Ministerial reference in this case required the

Court to hear and determine the Claimants’ complaint of
dismissal by the Company on 1st November 2018. D
PROCEDURAL HISTORY
[2] The Industrial Court received the letter pertaining to E

the Ministerial reference under s 20(3) of the Industrial
Relations Act 1967 on 5th April 2019.
[3] The matter was fixed for mention on 30th April 2019,
31st May 2019, 28th June 2019 and 14th August 2019. F
[4] The trial proceeded before the then learned Chairman

of Court No. 22, Dato’ Fredrick Indran X.A. Nicholas, on 25th
September 2019 and concluded on 26th September 2019. G
[5] Due to the learned Chairman Dato’ Fredrick Indran

X.A. Nicholas’ elevation to the High Court of Malaya as a
Judicial Commissioner on 25th November 2019, the learned
President of the Industrial Court on 26th December 2019 H
instructed the matter to be transferred from Court No. 22 to
Court No. 4, for the purposes of handing down an Award for
this case on or before 31st January 2020.
[6] On 9th January 2020, the learned President of the I

Industrial Court instructed the matter to be transferred back
from Court No. 4 to this Court, i.e. Court No. 22, for the
purposes of handing down the Award for this case on or
before 31st January 2020.
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A [7] This Court, after perusing the pleadings, the

documents, the witness statements, the notes of
proceedings as well as the written submissions (together
with the bundles of authorities) filed by the parties to this
matter, herein hands down the Award as per the instructions
B of the learned President of the Industrial Court.
FACTUAL BACKGROUND
[8] The Claimant commenced employment with the

C Company on 18th May 2003 as a Buyer. She then held the
position of Senior Executive, Advertising & Promotions until
her dismissal on 1st November 2018. All in all, the Claimant
had served the Company for 15 years before she got
dismissed.
D
[9] On 7th December 2017, the Claimant had applied for
her annual leave for the period 13th December 2017 to 20th
December 2017 on the Company’s leave application system,
E i.e. the eMASS portal, wherein she was required to make the
application 5 days in advance before the period of leave
applied for.
[10] The Claimant contends that her leave application was

F still not approved by her superior, i.e. one Noraishah Binti
Mohd Nasir (COW-3), as at 13th December 2017 and thus
she had decided to go to work in the morning of 13th
December 2017. Whilst driving to her workplace in the
morning of 13th December 2017, the Claimant suffered a
G numbness attack. She had gone to a clinic known as Klinik
Fuziah where she was given medical leave for 13th
December 2017 for myalgia and numbness on her upper
limb. She was then referred to Subang Jaya Medical Centre
and in turn was given a further 2 days medical leave for 14th
H and 15th December 2017. The Claimant informed the same
to COW-3 and her leave was then approved for 18th
December 2017 to 20th December 2017, since she was
already on medical leave for the 13th to 15th December
2017. 16th and 17th December 2017 was a Saturday and
I Sunday respectively.
[11] The Claimant admits that she still went on her family
trip to Hat Yai, Thailand as it seems she had already bought
the bus tickets for herself and her children. The Claimant
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had also been seen to be on holiday in Thailand via her A

Instagram account ‘ladyd.official’ for the same dates she
was on medical leave as stated in her medical certificates.
[12] The Company viewed the Claimant’s conduct of

travelling to Thailand for a holiday whilst being on medical B
leave as a serious misconduct and proceeded to issue a
Show Cause Letter dated 18th December 2017 (“the 1st
Show Cause Letter”) to the Claimant. The Claimant
responded on 21st December 2017 whereby she admitted
that she had already planned her holiday earlier but denied C
that she had pretended to be sick in order to go for her
planned holiday using the medical leave.
[13] Upon finding the Claimant’s response to the 1st Show

D
Cause Letter to be unsatisfactory, the Company issued
another Show Cause Letter dated 19th January 2018 (“the
2nd Show Cause Letter”) to accord her yet another
opportunity to explain herself. The Claimant however
resubmitted her reply to the 1st Show Cause Letter and
E
included additional supporting documents. The Company
however found that the Claimant’s explanation yet again
failed to justify her actions and proceeded to issue her with
a Notice of Inquiry dated 23rd February 2018.
F
[14] A Domestic Inquiry was held on 28th March 2018
wherein the Domestic Inquiry Panel (“DI Panel”) concluded
that the Claimant was guilty of the charge levelled against
her. Following from this, the Punishment Committee
imposed the punishment of suspension of 14 days without G
pay.
[15] The Management of the Company appealed to the

Disciplinary Appeal Committee against the decision of the
Punishment Committee to merely impose the punishment of H
14 days’ suspension without pay on the Claimant. The
Disciplinary Appeal Committee, after going through the DI
Panel’s and Punishment Committee’s decisions, instead
decided to reverse the findings of the DI Panel and found the
Claimant not guilty of the charge levelled against her. I
[16] The Claimant thereafter continued to work as usual

after the decision of the Disciplinary Appeal Committee until
10th October 2018 when the Senior Management reviewed
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A the decisions of the DI Panel, the Punishment Committee

and the Disciplinary Appeal Committee. Taking into account
the perverse nature and gravity of the misconduct
committed by the Claimant, the Senior Management took
the view that the Claimant’s abuse of the medical leave was
B serious enough to warrant the punishment of dismissal.
[17] The Company contends that they accorded the

Claimant a further opportunity to submit a written plea of
mitigation as to why the Claimant’s services should not be
C terminated in respect of the Claimant’s serious misconduct.
The Claimant submitted her written plea of mitigation on
17th October 2018. The matter was thereafter escalated to
the Board wherein the Board found that the Claimant had
failed to provide any justifiable mitigating circumstances.
D
[18] The Company contends that taking into
consideration the gravity and the compelling evidence of the
Claimant’s acts of misconduct, they found that they could no
longer repose the necessary trust and confidence in the
E Claimant to be retained in her employment. Thus, the
Company terminated the Claimant’s services with
immediate effect vide a Notice of Termination dated 1st
November 2018.
F
[19] The Claimant contends that her dismissal by the
Company was without just cause or excuse and thus prays
for a reinstatement to her former position in the Company.
THE ROLE OF THE INDUSTRIAL COURT

G
[20] It is established law that the function of the Industrial

Court in a s 20(3) Industrial Relations Act 1967 reference is
two-fold, i.e. to determine:-
H (i) whether the misconduct of the employee alleged by
the employer has been established; and
(ii) whether the misconduct, if proven, constitutes just
cause or excuse for the dismissal.
I
[21] In the case of Wong Yuen Hock v Syarikat Hong
Leong Assurance Sdn Bhd & Anor Appeal [1995] 2 MLJ 753;
[1995] CLJ 344; [1995] 1 MLRA 412 the Federal Court had
held:
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“On the authorities, we were of the view that the main and only A
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
B
workman, and if so, whether such grounds constitute just cause
or excuse for the dismissal.”
[22] And in the case of Goon Kwee Phoy v J & P Coats (M)
Bhd [1981] 2 MLJ 129; [1981] 1 MLRA 415 the Federal Court C
(vide the judgment of Raja Azlan Shah CJ) held:
“Where representations are made and are referred to the

Industrial Court for enquiry, it is the duty of that court to
determine whether the termination or dismissal is with or D
without just cause or excuse. If the employer chooses to give a
reason for the action taken by him, the duty of the Industrial
Court will be to enquire whether that excuse or reason has or
has not been made out. If it finds as a fact that it has not been
proved, then the inevitable conclusion must be that the
termination or dismissal was without just cause or excuse. The E
proper enquiry of the court is the reason advanced by it and
that court or the High Court cannot go into another reason not
relied on by the employer or find one for it”.
[23] The burden of proof in an unfair dismissal claim lies F

on the employer to prove on a balance of probabilities that
the employee had committed the misconduct complained of.
It was held by the Industrial Court in the case of Ireka
Construction Bhd v Chantiravathan a/l Subramaniam James
[1995] 2 ILR 11; [1995] 1 MELR 373: G
“It is a basic principle of industrial jurisprudence that in a

dismissal case the employer must produce convincing evidence
that the workman committed the offence or offences the
workman is alleged to have committed for which he has been H
dismissed. The burden of proof lies on the employer to prove
that he has just cause or excuse for taking the decision to
impose the disciplinary measure of dismissal upon the
employee. The just cause must be, either a misconduct,
negligence or poor performance based on the case”. I
[24] The standard of proof would be on a balance of

probabilities that the dismissal was done with just cause or
excuse. In the case of Sarimah Lee v Freescale
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A Semiconductor (M) Sdn Bhd [2010] 1 ILR 103; [2009] 2

MELR 783 the Industrial Court held:
“The burden of proof lies on the employer. He is obliged to

prove his case on a balance of probabilities. It is for him to
B adduce evidence that the workman was dismissed for just
cause or excuse”.
ISSUES TO BE DECIDED
C [25] The issues to be determined in this case are:

(i) whether the Claimant was guilty of the allegations of
misconduct levelled against him by the Company; and
(ii) whether the allegations of misconduct constitute just
D cause or excuse for the Claimant’s dismissal.
COURT’S FINDINGS AND REASONS
Whether the Claimants were guilty of the allegations of

E
misconduct
[26] The primary charge against the Claimant is contained

in the 1st Show Cause Letter dated 18th December 2017 (at
F p. 15 of Bundle ‘A’) which reads as follows:-
“It was reported that you were in Thailand on 15th December

2017 while on Medical Leave from 13th-15th December 2017.
We view this as Serious Misconduct where you are required to
take rest at home and not travelling far away from your base”
G
[27] The Claimant does not dispute that she had indeed
travelled to Hat Yai, Thailand for a holiday during the same
dates that she was on medical leave, i.e. 13th to 15th
H December 2017. Her only explanation is that she had
already planned her holiday in advance with her family and
had bought the bus tickets. During cross- examination, the
Claimant (CLW-1) has testified that she had bought the bus
tickets and was scheduled to leave for Thailand earlier in the
I day of 13th December 2017. But when she realised her leave
was not about to be approved in time, she decided to buy
another set of bus tickets on 12th December 2017 to leave
for Thailand, this time scheduled for the night of 13th
December 2017.
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[28] Counsel for the Claimant had submitted at length on A

how the authenticity of the medical certificates obtained by
the Claimant for the period between 13th to 15th December
2017 cannot be questioned or that the Company had failed
to call the necessary witnesses, i.e. the doctors, if they are
questioning the authenticity of the said medical certificates. B
Counsel for the Claimant seems to have missed the point.
The Company in fact is not even disputing the authenticity of
the medical leave that the Claimant had obtained for the
period between 13th to 15th December 2017. They genuinely
C
believed that the Claimant was sick. The point of contention
rather is that the Claimant should have been at home, as the
purpose of the medical certificates was for convalescence
and cure, and not for her to go gallivanting in Thailand.
D
[29] From the evidence tendered before this Court, oral
and documentary, the Claimant had clearly abused the
medical leave given when she saw it fit to travel to Thailand
for a holiday when she should have been resting at home
and the only conclusion that can be arrived at is that the E
Claimant had been malingering. ‘Malingering’ had been
defined in Black’s Law Dictionary (6th Edn.) at page 959
as “to feign sickness or any physical disablement or mental
lapse or derangement, especially for the purpose of
escaping the performance of a task, duty, or work, or for F
purpose of continuing to receive disability payments”.
[30] This Court is simply unable to agree with the

submissions of the Counsel for the Claimant that it is up to
the Claimant to choose how she spends her medical leave. G
To fully comprehend the full extent of the Claimant’s
attitude, an extract of the submissions of the Counsel for the
Claimant (at p. 13 of The Claimant’s Submission In Reply) is
reproduced below:-
H
“She was in fact sick and it is totally up to the Claimant on how
she spends the medical leave. How the employee chooses to
spend her medical leave is purely her rights and there was not
restriction that it has to be at home and Company shall not
interfere. ‘Malingering’ is only if the employee was fit but
I
decided to get a medical leave. In the case there was no
evidences to that the Claimant was well and fit to work.
Moreover the video shown only shows that she is carrying a
knapsack at her shoulder and her pain was in upper limbs which
are two different areas and if she came to work would have to
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A use computer and that would have direct coordination and

movement to the upper limb and lower limb”.
[31] With regards to the above submissions by the

Claimant’s Counsel, firstly, it clearly shows the irresponsible
B attitude shown by the Claimant when it is insisted that the
Claimant has every right to choose how she spends her
medical leave. As stated above, the purpose of a medical
leave is for convalescence and cure. Thus, it is not up to the
Claimant to decide on what she can or cannot do depending
C on the gravity of her illness or injury. It is not about whether
the Claimant had been fit but yet decided to obtain a medical
leave. If a medical certificate had been issued, then the
Claimant should have rested at home instead of travelling all
the way to Thailand. In the case of Maju Holdings Sdn Bhd v
D Nor Ashika Mohamed Dom [2004] 1 ILR 1026; [2004] 1
MELR 79 it was held by the learned Chairman of the
Industrial Court, K. Ramakrishnan:
“When a medical certificate is issued by a doctor, then the said
E medical certificate should generally be believed because the
doctor is an expert in his field and is in a best position to say
whether an employee is in a position to join his duties or not.
When in such a case the leave is refused by the employer
without any basis then the action of the employer is arbitrary
F and capricious.
When the medical certificate was issued to the claimant,
it was assumed that the claimant was sick and unfit to
work. If she was unfit to work then she was also unfit to
travel. The claimant who reported sick on the day travelled
G 350 km ie. from Malacca to Kuala Lumpur and then to Shah
Alam and then back to Malacca. If the claimant was really sick
she certainly could not have travelled the distance. It is the
view of this court that the claimant was not sick on 25
September 1997. She was in fact malingering. The word
malingering is to feign sickness in order to avoid duty. The
H claimant’s act tantamount to misconduct. The court views the
act of the claimant seriously”.
(Emphasis added.)
I [32] Secondly, Counsel for the Claimant admitted in the

said submissions that the video postings on her Instagram
account merely showed the Claimant carrying a knapsack
on her shoulder and that the pain was actually on her upper
limb. Counsel then goes on to suggest, rather bemusingly,
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that the shoulder is actually a different area from the upper A

limb. The Court is simply unable to accept this suggestion as
the upper limb includes the hand, the arm and the shoulder.
[34] It is evident that the Claimant had abused the very

purpose of the medical certificate which she obtained from B
the said Klinik Fuziah and Subang Jaya Medical Centre,
which was to convalesce and cure herself, by travelling all
the way to Thailand for a holiday. Whether she rested and/or
cured herself in Thailand becomes irrelevant. She was not
supposed to travel whilst being sick in the first place. She C
had led the Company to believe that she was genuinely sick
and resting at home when she informed them that she was
on medical leave. She had clearly betrayed the trust and
confidence reposed in her by the Company by travelling to
Thailand for a holiday whilst purportedly being sick. It does D
not matter one jot whether the Company’s guidelines is
silent on an abuse of medical leave being an act of serious
misconduct.
[35] In the case of Ambank Bhd v Rasidah Othman [2007] E

4 ILR 656; [2007] 9 MELR 352 the employee had obtained a
medical certificate for her purported illness on 4th December
2002. In the afternoon of the same day, two officers of the
bank spotted the employee in a shopping complex at
F
KOMTAR carrying a few bags. The bank viewed her
subsequent conduct despite taking medical leave as
tantamount to malingering and dismissed the employee
from her services. The Industrial Court stated:-
“In Employees’ Misconduct [As Cause for Discipline and G

Dismissal in India and the Commonwealth] by Alfred Avins
1968 Edition with 1987 Supplement on p. 488: - Malingering.
An employee may be disciplined for malingering and feigning

illness to get out of a particular job is misconduct. H
In Misconduct in Employment (in Public and Private Sector) by

BR Ghaiye on p. 724, the learned author stated that:
Workers have no right to take leave on the ground of sickness

I
when they are not actually sick. - Sometimes the workers feign
sickness in order to get leave which is called ‘malingering’. The
dictionary meaning of the word ‘Malinger’ is to feign sickness in
order to avoid duty. It is usually done by producing false
medical certificate. Malingering is a recognized misconduct but
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A in order to show that the worker has taken leave on false

grounds of sickness the medical certificate has to be examined
in the light of the attendant and other circumstances”.
B [36] In the case of General Tyre Retreaders Sdn Bhd v

Vadiveloo Munusamy [1996] 2 ILR 1419; [1999] 1 MELR
309 it was held by the Industrial Court:-
“It is settled law that an employee is entitled to sick leave after

examination by a doctor appointed by the employer so long he
C
does not abuse the purpose of sick certificate. Sick leave is
meant for employees who fall sick and who are not medically fit
to perform their duties and not as a means to avoid coming to
work. Persistent absenteeism by an employee under the
pretext of medical unfitness may be taken as an indication not
D to perform his contractual obligations to his employer. This is
because extensive absence causes inconvenience and has a
disrupting effect on the productivity of the business.
The conduct of the claimant on medical absenteeism gathered
from the documents and evidence before this Court or his
E medical leave is not commendable. The panel doctor had
doubts on his complaint of backache, nevertheless gave him
medical leave on the benefit of doubt. He insisted on reference
to the General Hospital to supplement his excessive medical by
SOCSO leave. He had admitted it was not his duty to lift heavy
F tyres but put up the queer story he was helping a fellow
employee and sustained the back injury. The veracity of his
back injury was the main complaint of the company and from
what had transpired it would appear the company had some
valid grounds.
G It is also valid undisputed fact he has already taken medical
leave in excess of five days from the maximum of 22 days of
medical leave permissible under the collective agreement.
SOCSO leave entitlement is based on “Employment Injury” and
the claimant had alleged his injury was caused by his
purportedly lifting of heavy tyres.
H
The company is not disputing the doctor’s competence nor is
the company challenging the doctor’s professionalism. What
the company is contending is that the claimant at the material
time induced the procurement of medical leave by misleading
the doctor as to the cause of his alleged backache. The
I
company, in fact, conceded that employees do fall sick and are
entitled to medical leave. It is the claimant’s modus operandi in
obtaining medical leave that is under scrutiny and suspicion. In
my view it is reasonable for employers to go behind a sicknote
when there are reasonable grounds and where an employee
//ilj/2020/2/ilj2020_2_0008
has a past track record of taking excessive medical leave, that A

will be one of the valid grounds for suspicion. The company’s
belief that the claimant had obtained medical leave under false
pretence was further strengthened when the claimant was seen
at the bank while on sick leave. Such behaviour, in my view,
gave rise to suspicion of feigned sickness and is not consistent
B
with the faithful discharge of his duty in the employment. Such
conduct is prejudicial to the interests of the company and
punishable”.
[37] In the case of Farahtina Kassim & Anor v Malaysian C

Airline System Bhd [2018] 2 LNS 1209; [2018] MELRU 1209
I had held that the Claimants conduct in attending a union
gathering whilst being on medical leave was a clear case of
malingering.
D
[38] The Claimant then lays the blame for the entire
episode squarely on her superior, i.e. COW-3, for refusing to
approve her application for annual leave. However, this
contention of the Claimant is without merits as it is trite that
the approval of annual leave is entirely at the discretion of E
the employer. Unless and until the application is approved
by the employer, an employee is not entitled to go on his
annual leave according to his/her whims and fancies without
the knowledge and/or permission of the employer.
F
[39] In the case of Etonic Garment Mfg Sdn Bhd v
Kalaimagal Muthusamy [1998] 3 ILR 698; [1998] 2 MELR
722 it was held by the Industrial Court Chairman, Tan Kim
Siong:-
G
“It is a misconception to suggest that an employee can
go away whenever he submits his leave application
without regard to the employer’s convenience. The right
of an employee to go on leave must be balanced
equitably to the exigencies of the employer’s business. H
The discretion to grant or not to grant the employees’
leave is the discretion of the employer. An employee is
not at liberty to absent himself from work unless and
until his leave is formally and properly approved by his
employer. The claimant’s contention that her leave was
approved automatically is untenable and unacceptable as it I
would deprive the employer’s vested right to refuse or grant the
leave”.
(Emphasis added.)
//ilj/2020/2/ilj2020_2_0008

A [40] The evidential burden is on the Claimant to prove

that COW-3 had a mala fide intention in not approving her
annual leave application in time. The evidence before this
Court shows that COW-3 simply was not aware of the
application until the Claimant sent her a WhatsApp message
B on 14th December 2017 (at pp. 24-25 of Bundle ‘A’). COW-3,
upon being notified via that WhatsApp message,
immediately approved the annual leave application but only
for the period between 18th to 20th December 2017 as the
Claimant was already on medical leave from 13th to 15th
C
December 2017. There was no evidence produced by the
Claimant before the Court that shows the existence of a
mala fide intention on the part of COW-3 to withhold the
Claimant’s annual leave application. The Claimant has
D clearly failed to discharge that evidential burden.
[41] The Claimant on the other hand saw it fit to

reschedule her travel time to the night of 13th December
2017 when she found that her annual leave application was
E still yet to be approved. She proceeded to purchase a new
set of bus tickets on 12th December 2017 to travel to
Thailand on the night of 13th December, she had sourced for
the medical leave for the period between 13th to 15th
December 2017 in the morning of 13th December 2017
F whilst purportedly on her way to work, and then abused the
medical leave by travelling to Thailand during the period of
medical leave. The Court finds it hard to believe that it was
a mere coincidence that the Claimant fell sick on the
morning of her travel day to Thailand, i.e. 13th December
G
2017 after finding out her annual leave application had yet
to be approved. The modus operandi in which the Claimant
had gone about obtaining the medical certificates when she
found that her annual leave had yet to be approved by
H COW-3 and then rescheduling her travel to Thailand for the
night of 13th December 2017 raises the presumption of
malingering on the part of the Claimant, which she had
failed to rebut.
I [42] This Court finds that the Claimant had committed a

serious misconduct when she abused her medical leave
between the period of 13th to 15th December 2017 by
travelling to Thailand for a holiday with her family.
//ilj/2020/2/ilj2020_2_0008
Whether the allegation of misconduct constitutes just cause A

or excuse for the Claimant’s dismissal.
[43] As can be seen from the findings above, the

Company has succeeded to prove on a balance of B
probabilities that the Claimant is guilty of a serious
misconduct when she abused her medical leave between
13th to 15th December 2017 by travelling to Thailand for a
holiday with her family. She had then exhibited her sheer
defiance and rebelliousness by posting videos of her holiday C
during that period, and in particular on 15th December 2017,
on her Instagram account.
[44] The Claimant had contended that an adverse

D
inference should be drawn against the Company for their
failure to call the members of the Board and the members of
the Disciplinary Appeal Committee as witnesses during the
trial. This contention is without merits as the General
Manager of the Company, Zulhikam Bin Ahmad (COW-5), E
who had signed the dismissal letter after due authorisation
being given by the Board to do so, had testified before the
Court to explain the veracity and contents of the dismissal
letter.
F
[45] It is also the contention of the Claimant that the
Disciplinary Appeal Committee had reversed the finding of
guilt of the DI Panel. But it is trite law that the Industrial
Court is not bound by the proceedings or findings of the DI
Panel (Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & G
other appeals [1996] 1 MLJ 481; [1997] 1 CLJ 665; [1996]
1 MELR 216) and the same principle is equally applicable
herein with regard to the findings of the Disciplinary Appeal
Committee. Lest it be forgotten, proceedings under s 20(3)
H
Industrial Relations Act 1967 references before the
Industrial Court are heard de novo.
[46] Upon analysing the evidence and facts of the case in

its entirety, the Court is satisfied and do hereby find that the I
Claimant’s dismissal by the Company was done with just
//ilj/2020/2/ilj2020_2_0008

A cause and excuse.
CONCLUSION
[47] The Company’s action in terminating the Claimant’s

B services was done with just cause and excuse.
[48] The Claimant’s case is hereby dismissed.
Claim dismissed
C
Reported by Addibah Adnan

Dalia BT Ash'Ari V Malaysia Airports (Niaga) SDN BHD (2020) 2 ILJ 8

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JOBNAME: No Job Name PAGE: 1 SESS: 1 OUTPUT: Thu Dec 10 18:16:15 2020

8 Industrial Law Journal [2020] 2 ILJ

Dalia bt Ash’Ari v Malaysia Airports (Niaga) A

INDUSTRIAL COURT (KUALA LUMPUR) — AWARD NO 178 OF B

Held, dismissing the claim:

Dalia bt Ash’Ari v Malaysia Airports (Niaga) Sdn

A jot whether the company’s guidelines are silent on an

G [Bahasa Malaysia summary

10 Industrial Law Journal [2020] 2 ILJ

dibuat ke atasnya oleh syarikat; dan (b) sama ada A

Diputuskan, menolak tuntutan:

Dalia bt Ash’Ari v Malaysia Airports (Niaga) Sdn

A menyalahgunakan cuti sakit dengan melancong

Nanthini Nair Ramakrishnan together with Faridah Begum

12 Industrial Law Journal [2020] 2 ILJ

This is a reference made under s 20(3) of the Industrial B

[1] The Ministerial reference in this case required the

[2] The Industrial Court received the letter pertaining to E

[4] The trial proceeded before the then learned Chairman

[5] Due to the learned Chairman Dato’ Fredrick Indran

[6] On 9th January 2020, the learned President of the I

Dalia bt Ash’Ari v Malaysia Airports (Niaga) Sdn

A [7] This Court, after perusing the pleadings, the

[8] The Claimant commenced employment with the

[10] The Claimant contends that her leave application was

14 Industrial Law Journal [2020] 2 ILJ

had also been seen to be on holiday in Thailand via her A

[12] The Company viewed the Claimant’s conduct of

[13] Upon finding the Claimant’s response to the 1st Show

[15] The Management of the Company appealed to the

[16] The Claimant thereafter continued to work as usual

Dalia bt Ash’Ari v Malaysia Airports (Niaga) Sdn

A the decisions of the DI Panel, the Punishment Committee

[17] The Company contends that they accorded the

THE ROLE OF THE INDUSTRIAL COURT

[20] It is established law that the function of the Industrial

16 Industrial Law Journal [2020] 2 ILJ

“Where representations are made and are referred to the

[23] The burden of proof in an unfair dismissal claim lies F

“It is a basic principle of industrial jurisprudence that in a

[24] The standard of proof would be on a balance of

Dalia bt Ash’Ari v Malaysia Airports (Niaga) Sdn

A Semiconductor (M) Sdn Bhd [2010] 1 ILR 103; [2009] 2

“The burden of proof lies on the employer. He is obliged to

C [25] The issues to be determined in this case are:

COURT’S FINDINGS AND REASONS

Whether the Claimants were guilty of the allegations of

[26] The primary charge against the Claimant is contained

“It was reported that you were in Thailand on 15th December

18 Industrial Law Journal [2020] 2 ILJ

[28] Counsel for the Claimant had submitted at length on A

[30] This Court is simply unable to agree with the

Dalia bt Ash’Ari v Malaysia Airports (Niaga) Sdn

A use computer and that would have direct coordination and

[31] With regards to the above submissions by the

I [32] Secondly, Counsel for the Claimant admitted in the

20 Industrial Law Journal [2020] 2 ILJ

that the shoulder is actually a different area from the upper A

[34] It is evident that the Claimant had abused the very

[35] In the case of Ambank Bhd v Rasidah Othman [2007] E

“In Employees’ Misconduct [As Cause for Discipline and G

An employee may be disciplined for malingering and feigning