Court chairman Rusita Lazim found that Irfan Sani Rashid’s dismissal was “unjust”, saying that Malaysia Airports Sdn Bhd (MASB) should have accepted his offer to conduct supervised self-tests in the office.
“The company’s actions (of) pressuring the claimant (Irfan) and ignoring the latest guidelines issued by the health ministry on Nov 26, 2021, were maliciously intended to terminate the claimant’s services on the grounds of insubordination and serious misconduct even though the claimant has no previous disciplinary record as regards his work performance,” she said in an award issued earlier this month.
Rusita said the national Covid-19 policy only required tests to be done before entering the workplace and did not mandate costly clinic tests.
She said the company failed to provide any documentary evidence to support its claim that unvaccinated employees who submitted negative saliva tests had contributed to workforce shortages between October and December 2021.
“What the company had done in imposing a condition for an employee to bear the cost of a health certificate is in contravention of the national testing strategy that came into force on Nov 26, 2021.
“Based on the (health ministry’s) guidelines, it is clear that it is sufficient for an unvaccinated employee to undergo a self-RTK-Ag test witnessed by the employer without having to submit a health certificate certified by the medical practitioner,” she said.
Irfan joined the company as an engineer in 2013 before rising to become a senior executive engineer in 2018. He was based at the Langkawi international airport and drew a monthly salary of RM5,037 at the time of his dismissal three years later.
Rusita said the company failed to consider alternative measures appropriate to the alleged misconduct, such as suspension without pay, salary reduction, or demotion with a pay cut.
She noted that the claimant’s refusal to get vaccinated or pay for RTK-Ag tests at a private clinic led to his predicament.
“The claimant also, in all good conscience, must be made to bear some responsibility for his unwillingness to do the RTK-Ag Test certified by the doctor at least for once, …rather than relying solely on being asymptomatic,” the 56-page award read.
“Given the small part of the claimant’s contributory conduct, this court finds it appropriate to impose a deduction of 10% from the back wages awarded,” she explained.
Rusita also deducted 40% from Irfan’s back wages on account of his post-dismissal earnings.
In total, Irfan was awarded RM100,743. The sum included compensation in lieu of reinstatement calculated at one month’s pay for each of his eight years of service with the company, amounting to RM40,297.
Habib Rahman Seeni and Hafiz Tajudin appeared for the claimant, while Raymond Low and Adam Thye represented the company.