By Richard Wee, Lesley Lim, Janessa Kok, Oh Jia Ling
Employment Law: Medical Boarding Out or Not?
Every employee of an employment contract will inadvertently fall ill every now and then. Of course, all employees are entitled to take medical leave, but in extreme cases where the employee has unfortunately contracted a disease or became medically or physically unfit; can the employer take steps to release this employee? This is an issue commonly referred to as “Medical Boarding Out”.
What is medical boarding out?
It is the termination of an employee’s services on the ground that the employee has no or little prospect of recovering from a chronic illness or injury.
How is this justified so as not to be unfair or prejudicial towards the employee?
This area is relatively ambiguous and debatable as no set framework or guideline is statutorily provided for. The Employment Act 1955 only caters for statutory sick leave and hospitalisation leave. Therefore, in such a situation, it would be pertinent to refer to relevant precedents and case laws. Each case on medical boarding out is unique and has to be analysed individually.
Directly citing the words of Abu Hashim Abu Bakar J. in MHS Aviation Sdn. Bhd. v Zainol Akmar Mohd Noor, there is crucial balance that needs to be stuck between “the employer’s need for the work to be done and the employee’s need for time in which to recover his health” before concluding that the employee is unfit for work.
Taking sick leave is an entitlement of every employee. However, these medical leaves should not be abused and taken advantage of. If an employee suffers from a chronic illness and requires a long absence from work, how does an employer deal with such a situation?
The Judge in the case of Lynock v Packaging Ltd. (cited in Kempas Edible Oil Sdn. Bhd. v Abu Bakar Talib) suggested three words on the approach the employer can take when facing such a situation – sympathy, understanding and compassion. Lynock further listed a few factors which may be important in arriving at an inevitably arduous decision:
- The nature of the illness
- The likelihood of recurring or some other illness arising
- The length of the various absence and the spaces of good health between them
- The need of the employer for the work done by the particular employee
- The impact of the absence on others who work with the employee
- The adoption and the exercise carrying out of the policy
- The important emphasis on a personal assessment in the ultimate decision
- The understanding and knowledge of the employee on the extent of the difficult situation the company is faced with due to his medical condition
The list provided above is not limited to nor conclusive and they are merely approaches for understanding. Employers should take appropriate steps before medically boarding out an employee.
Below is a very helpful passage by John McGlyne in his book Unfair Dismissal Cases, cited by various medical boarding out related cases:
|“Sickness and Unfair Dismissal|
If an employee is incapacitated by ill-health and is no longer able to perform the job he was employed to do, his employer should consider whether or not the man could be kept in employment in another capacity. If there is an existing job, even if it is the lower paid, the employer should offer alternative employment to the employee. If the employee refuses any such offers, then it seems to be reasonable for the employer to dismiss the employee. It should be noted that the employer is only required to consider the employee’s ability to perform, existing jobs – there is no duty on the employer to create a new job or to modify and existing one, in order to continue the employment.”
This seems to be the minimum requirement or threshold the employer has to fulfill before deciding to medically board out an employee. However, it is highlighted that each case is different and even if such steps are taken, the employee may still potentially be found by the Courts to have wrongfully dismissed an employee.
In Gopalakrishnan A/L Vasupillai v Goodyear Malaysia Berhad and Anor, after looking at past cases on medical boarding out, Mohamad Ariff bin Md. Yusof J. echoed the essence in McGlyne’s passage above, surmised that “the employer in medical boarding out cases is expected to act reasonably in accordance with its obligations of social consciousness, and should attempt to offer an alternative employment to the employee, even though it might be a lower paying job”.
Often, many companies have in their Employee Handbook listed down the procedure on medical boarding out and the compensation to be given. Even though such guideline on medical boarding out is provided for, the Court may still scrutinise the situation to determine if it was fair and just to the employee based on the surrounding facts and circumstances.
To summarise, taking several steps (as stated above) may be a minimum safeguard for the employers to prevent a claim for unlawful dismissal. The employer should endeavour to be understanding, compassionate and empathise with the employee in dealing with a medical boarding out situation.