CASE OF THE WEEK

The plaintiff was formerly employed by the defendant as its learning management services manager before retiring after 34 years of service. Since 1977, the plaintiff had been suffering from a neurological condition called `cerebellar ataxia' which worsened when the plaintiff had a fall a year before his retirement. This caused the plaintiff to be on medical leave for about two and a half months. The plaintiff then applied for a mutual separation scheme (`MSS') offered by the defendant to its employees but the application was rejected. Subsequently, he applied to be medically boarded out (`MBO') but no medical board was convened by the defendant in order to determine whether the plaintiff was fit to continue working. Instead, the plaintiff was told by the defendant that he could either recuperate at home until he commenced his leave prior to his retirement or come to work whenever he wanted to do so. Upon examination by the defendant's consultant physician and a consultant neurologist of a private hospital, the plaintiff was confirmed as qualified to be boarded out and a letter was sent to notify the defendant of the plaintiff's condition. The plaintiff appealed to the defendant to convene a medical board or alternatively, accept the said specialists' findings and declare him to be eligible to be MBO. However, his appeal proved futile. Hence, the plaintiff filed the instant action, claiming for damages for being deprived of the opportunity of having a medical board convened. It was further contended that the defendant failed to act fairly, in good faith and without discrimination to its employees and was therefore in breach of an implied term in the 2005 Memorandum of Understanding (`MOU'). The issues that arose for the court's determination were (i) whether the MOU contained an implied term requiring the defendant to convene a medical board to verify the plaintiff's fitness to work; (ii) whether the defendant was required to convene a medical board and to refer the plaintiff to the medical board for medical examination for the purpose of giving recommendation; and (iii) whether the decision to MBO the plaintiff was the defendant's prerogative and if so, whether the prerogative decision was fair, just and reasonable.

Held (dismissing claim for damages; allowing application in part):

(1) It was an implied term that the defendant had to convene a medical board where it was fair and just to do so and this case was such a case. Although the discretion to convene a medical board lay with the defendant, it (discretion) was a discretion which had to be exercised fairly and reasonably in good faith and without bias or discrimination which the defendant failed to do. The plaintiff had made an application to be MBO and the defendant's action in allowing the plaintiff to `recuperate at home' and to come to work as and when he wished, indicates that the defendant did find the plaintiff unfit to carry on with his job. Under such circumstances, it was only fair and reasonable that the defendant should have convened a medical board to investigate further the plaintiff's illness. (para 31)

(2) The defendant was required to convene a medical board and to refer the plaintiff to the medical board for medical examination for the purpose of giving recommendation under art. 35(1)(a) of the MOU. (para 39)

(3) The decision to MBO the plaintiff was the defendant's prerogative. However, the decision not to refer the plaintiff to a medical board was unfair, unjust and unreasonable. This was so since there were reports from medical experts that say that the plaintiff should be MBO since he was unfit to do his job. Under the said MOU 2005, had the defendant referred the plaintiff to a medical board, it would be one which `Is constituted by the company (defendant) in accordance with the terms and conditions of employment'. Therefore, the company or the defendant had the prerogative to select the composition of the medical board members to investigate into the fitness of the plaintiff to continue to do his job. (para 40)

(4) The plaintiff's claim was based upon the assumption that if a medical board was set up or convened, the medical board would recommend that the plaintiff be MBO and the defendant would accept and act on that recommendation. The plaintiff's initial request was for a medical board to be convened. When the plaintiff's application was refused or rejected, the plaintiff ought to have sought a mandatory injunction for a medical board to be convened by the defendant. (paras 42 & 43)

(5) The plaintiff in its claim was asking the court to not only speculate on the recommendation of the medical board but also to speculate on the decision of the defendant which the court cannot and would not do. The court was not in a position to speculate the outcome of the medical board's recommendation and the findings of the defendant whether to accept or not the medical board's recommendation. This would tantamount to the court usurping the prerogative of the medical board and that of the defendant; and rewriting the MOU 2005 which was a collective agreement made between the defendant and MASMA. (paras 44-54)

Case(s) referred to:

Dr A Dutt v. Assunta Hospital [1981] 1 LNS 5 FC (refd)

Harpers Trading (M) Sdn Bhd v. National Union of Commercial Workers [1991] 2 CLJ 881; [1991] 1 CLJ (Rep) 159 SC (refd)

Innoprise Corporation Sdn Bhd Sabah v. Sukumaran Vanugopal, Sabah [1993] 1 ILR 373B (refd)

Lim Eng Kay v. Jaafar Mohamed Said [1982] CLJ 298; [1982] CLJ (Rep) 190 FC (refd)

Pushpadevi Singam v. University of Malaya [1993] 4 CLJ 602 HC (refd)

Sinar Wang Sdn Bhd v. Ng Kee Seng [2004] 3 CLJ 679 CA (refd)

Yap Kok Foong v. Colgate Palmolive (M) Sdn Bhd & Anor & Another Case [2000] 1 LNS 150 HC (refd)

Counsel:

For the plaintiff - Sangeet Kaur Deo; M/s Karpal Singh & Co

For the defendant - Christopher Arun; M/s Zaid Ibrahim & Co

Reported by Najib Tamby