The tribunal heard that the claimant, Tonny Chan, had accumulated RM30,467 in medical bills for 222 clinic visits he and his family members made in 2019. He also incurred another RM12,728 for 92 visits in the first five months of 2020.

Eight days after a domestic inquiry cleared him of wrongdoing, the management sacked him on the same grounds.

Sabah Industrial Court chairman Indra Ayub said falling sick was beyond the control of Chan or his dependents.

It is also beyond their control which medicine they are prescribed, which is entirely at the discretion of the doctor based on the type of treatment, nature of illness and the condition of the patient, the chairman said in an award handed down on July 29.

Chan, whose last drawn monthly pay was RM3,089, was awarded compensation totalling RM107,513 by the court.

The sum comprised 24 months’ backpay worth RM70,439.52, after a 5% reduction for post-dismissal income. It also included compensation for 12 full years of service in lieu of reinstatement, amounting to RM37,073.

Indra said Chan’s service record showed no disciplinary issues over the length of his entire service with MAHB, noting that he was even awarded a loyalty service appreciation certificate in 2018.

The chairman also found that the claimant’s employment contract contained no guidelines on claims for medical treatment. In particular, it neither limited the number of visits the claimant or his dependents could make or imposed a price cap on them.

Indra cited as authority a 1991 Indian Supreme Court decision which held that the right to livelihood “cannot hang on to the fancies of individuals in authority”.

“The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes fundamental.

“Fundamental rights can ill afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them,” the Indian case said.

Reviewing the evidence, Indra said the company’s witness, Dr Jasman Haris, had confirmed that frequent clinic visits may be “reasonable and necessary” if early treatment and medication fails to cure a patient.

He said MAHB’s allegation that certain panel clinics in Kota Kinabalu were charging excessively did not concern the claimant as he did not submit claims for payment to the company himself.

“The medical bills were submitted by the respective clinics to be processed by a service provider engaged by the company to manage and process medical claims,” the award read.

Indra also found no evidence to suggest that the claimant had received items other than medication from the clinics.

MAHB said the claimant was among 24 employees sacked for abusing medical benefits after an investigation found that some among them had admitted to receiving items such as vitamins, jamu, milk powder, diapers, wet tissues and toiletries.

Indra also described MAHB’s decision to terminate the claimant eight days after the domestic inquiry as “hasty”, noting that it did not meet the minimum 30 days’ notice or one month’s salary in lieu of notice prescribed in his employment offer letter.

“Despite the domestic inquiry panel finding the claimant not guilty for the abuse of medical benefits, he was drastically dismissed by the company. The claimant’s version is inherently more probable than the company’s version.

“This Court is satisfied on a balance of probabilities that the company had failed to make out the case of misconduct against the claimant. As such the termination of the claimant is now rendered as null and void,” the court ruled.

In any event, even if the claimant had committed the misconduct alleged, Indra said the punishment meted out to him was “too harsh and disproportionate to the seriousness of the alleged misconduct”.

Indra said MAHB’s disciplinary guidelines do not compel the company to dismiss the claimant even if he had committed a major misconduct. Instead, he said the company was obliged to impose a punishment “in order of its magnitude starting from the less punitive suspension without pay, and then a demotion, and finally a dismissal.”

The court also noted that the Code of Conduct for Industrial Harmony 1975 calls for “penalties to be graduated according to the seriousness of the offence”.

Catherine Jikunan from the Malaysian Trades Union Congress appeared for the claimant, while MAHB was represented by Kate Hwa and Kate Ngu.