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Award No:1368/2022
  
Company:HBI Enterprise
  
Claimant:  Muhd Hazizi Bin Ismail 
 
  
Case  
  
No. Kes: 2/4-1062/21
 
Muhd Hazizi Bin Ismail
dan
HBI Enterprise
 
No. Award 1368 Tahun 2022
 
[1] The Claimant commenced his employment with the Company as a crane operator on the 3.12.2018. The Claimant was paid RM4,000.00 per month as base salary. This did not include over time and replacement allowance.
 
[2] The Claimant was paid his salary during the operation of the project. In the event, the Claimant failed to turn up for work, he was responsible for obtaining a replacement crane operator. In the event the Claimant was unable to get a replacement, the Company would get and pay the replacement.
 
[3] The Movement Control Order (MCO) commenced on the 18.3.2020. The MCO encompassed restrictions on movement and mandated the closure of business and industry to curb the spread of SARS-CoV-2, the virus that causes COVID-19.

[4] The Ministry of International Trade and Industry (MITI) allowed certain sectors to operate under the MCO. The Company vide its letter dated 28.4.2020 to MITI applied for permission for its employees to cross borders and return to work as crane operators at its construction sites.

[5] Having obtained permission from MITI the Company on the 6.5.2020 informed and ordered the Claimant to report for work at its construction site.

[6] It was mandatory for the Claimant to undergo a Covid-19 swab test as a condition for moving across the state and entering the construction site.

[7] The lack of money and the Company’s failure to pay for the Covid – 19 swab test is the reason and cause of the Claimant’s failure to return to work.

[8] The failure of the Claimant to return to work after the 6.5.2020 forced the Company to find a replacement crane driver to undertake the duties of the Claimant. Having obtained a replacement crane driver the Company terminated the services of the Claimant.
 
  
Held   
  

​[9] Despite not having a written contract of employment, the Claimant commenced employment on 3.12.2018 and was paid RM4,000.00 per month. Hence, there was an employer/employee relationship between the Company and the Claimant.


[10] The failure of the Claimant to recommence work as directed lead to an indication that the Claimant no longer intended to be bound by the terms and conditions of the employment relationship.


[11] It was not the responsibility of the Company to make payment for the Covid - 19 swab tests. Thus, the failure of the Claimant to undertake the Covid - 19 swab test was the reason for his failure to attend work. His lost of employment was with just cause.


[12] It was a mandatory requirement by the Government that the Covid – 19 swab test was a condition to move across states for purposes of work. Safeguarding its interests and in complying with the instructions issued, the Company was required to obtain the test results of the Covid 19 swab test from an employee before issuing approval to the employee to cross states to report for work at the worksite. The Company was required to enclose the test results of the Covid - 19 swab test in its application to MITI.


[13] The Company informed the Claimant that he was required to take the Covid - 19 swab test on the 10.4.2020 and 6.5.2020. There was no evidence in the form of documents or otherwise before the Court that the Claimant undertook the Covid – 19 swab test. In the absence of the Covid – 19 swab test results from the Claimant, the Company could not recall the Claimant to work.


[14] The lack of money for the purpose of undergoing the Covid – 19 swab test is not a reasonable reason for the Claimant to claim unfair termination of employment by the Company for his failure to attend work at the worksite. There are other various alternatives for the Claimant to get money for that purpose other than placing full reliance on the Company for that purpose.


[15] Bound by the MCO, the Company has the right and mandate to organize activities at the project site in accordance with the conditions, limits and time limits placed by the Government. The Company’s conduct of placing another employee as crane driver at the worksite was reasonable to ensure that the work is carried out in an orderly manner as scheduled.


[16] The Claimant’s termination was with just cause and excuse.

 
[17] The Claimant’s claim is dismissed.

DATED 6th JULY 2022
  
 
Tags/Keywords
dismissal, MCO, Covid-19, swab test
  
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