Court chairman Eswary Maree said Sunshine Bread Sdn Bhd acted with “pre-planned malice” and “made life difficult” for Tan Seng Kok, before terminating his services summarily.

On June 30, 2021, Tan was admitted to a quarantine centre in Serdang where he was diagnosed as a Category 5 Covid-19 patient.

He took a total of 183 days of hospitalisation, medical, annual and no pay leave which was set to end on April 26, 2022.

On April 4, he attended an occupational safety and health check at a private clinic in Kajang, Selangor, as instructed by his employers, and was certified in an OHD report to be “fit to work without restrictions or conditions”.

By a letter dated April 22, the company instructed him to return to work on April 27, adding that he will otherwise be deemed to have abandoned his job.

On April 26, Tan, being unable to access the company’s online leave application system, emailed his employers seeking an additional 22 days of unpaid leave for physiotherapy and rehabilitation. He said he would return to work on June 1.

However, by a letter dated April 28, 2022, the company terminated his employment after he failed to show up for work the previous day. The company issued another letter the following day rejecting his leave application, saying it was “unreasonable and unsubstantiated”.

In a 27-page award issued last week, Eswary said the leave rejection letter was an “apparent afterthought” as it was issued after Tan’s services were terminated. She also found that the company had already planned to terminate his services earlier.

Eswary said Tan had to resort to applying for unpaid leave as the company had stated in its return-to-work letter that it would henceforth only accept medical certificates issued by a government hospital.

“This part of the conduct of the company clearly establishes the fact that it (had) decided to make the claimant’s life difficult,” said Eswary.

The court said the company’s act of barring Tan from accessing its online leave application system despite his ongoing struggle with post-Covid-19 symptoms, showed “a pre-planned malice” to terminate his employment.

Eswary also noted that the company had failed to allow Tan the option of working from home although it was in possession of a private hospital’s medical report stating that he could return to work under an “alternate working scheme”.

She also said the OHD report, issued two months later, which certified Tan to be fit for work, was “not conclusive”.

“The report stated he was still suffering from lethargies, lack of energy, shortness of breath on exertion, some derangements” and several other “medical conditions” which were “reversible in due time”, including lung and kidney diseases, and mild post-traumatic stress disorder.

Given the contents of the OHD report, Eswary said “the company should not have rejected the claimant’s application for unpaid leave”.

She also said the company had “acted too hastily” by terminating Tan’s employment without giving him the right to be heard.

“By not giving (Tan) an opportunity to rebut the allegations of wilful insubordination and gross negligence of his duties, the company had failed to comply with standards of procedural fairness,” she said.

Eswary also noted that Section 15(2) of the Employment Act 1955 stipulates that workers  who are continuously absent for more than two consecutive working days without prior leave from their employer are deemed to be in breach of their contracts of service.

“The company failed to prove that (Tan) had been absent for more than two consecutive working days to rely on the provision.

“Furthermore, (Tan) had duly informed the company that he is applying for unpaid leave from Apr 27 until May 31 and will report to work on June 1 due to his health condition,” she said.

As such, she said, Tan had successfully rebutted the presumption that he had abandoned his employment.

Eswary also said the company should have exercised “sympathy, understanding and compassion” and ought to have discussed Tan’s request for unpaid leave with him given his medical condition.

Tan, whose last-drawn monthly salary was RM12,700, was awarded 24 months’ back wages and an additional three months’ salary as compensation in lieu of reinstatement.

Lee Kai Yet and Lim Chun Weng represented Tan.

Sunshine was represented by Adam Abdullah, Adlina Atikah Zainal Abidin and Nur Khairunnisa Adriana Zainuddin.