Employees who are contributors to the Social Security Organisation (“SOCSO”) scheme can make a claim if they have suffered a disability due to an “employment injury”.
If an employee is injured offsite while they are travelling to or from work, does this amount to an “employment injury”?
The Court of Appeal in Sathiaseelan Nagappan v Ketua Pengarah, Pertubuhan Keselamatan Sosial [2023] 3 ILR 18 addressed this issue.
Brief Facts
- The Employee worked at a factory in Kulim, where he rented a place to stay (“Rented House”).
- Every weekend, the Employee would return home to his family in Ipoh. On Sunday evening, he would travel back to Kulim to his Rented House, so he could go to work at the factory on Monday at 8:00 a.m.
- One Sunday, he met with an accident on his way from Ipoh to his Rented House.
- The Employee claimed temporary disability benefits from SOCSO.
- His claim was rejected because the injury was not an “employment injury” under the Employees’ Social Security Act 1969 (“ESSA”).
- The High Court held that this was not an “employment injury” because the journey from Ipoh to Kulim was not necessary to be undertaken for his work.
- The Employee appealed to the Court of Appeal.
Findings of the Court of Appeal
The Court of Appeal allowed the Employee’s appeal:
- Employees may still claim from the SOCSO scheme even if the injury happened outside the workplace, so long as the accident arose out of and in the course of their employment with their employer.
- The Employee’s journey from Ipoh to his Rented House was “directly connected” to his employment, as this journey was necessary for the Employee to arrive at Kulim for work the next day. The Employee would not have needed to travel to his Rented House if not for his work.
- The Employee’s travel from Ipoh did not amount to an interruption or deviation of his journey that would disqualify it from being classified as an “employment injury”. Such interruption had to be substantial or arising out of some “economic pursuit”, for example if the Employee took a detour to undertake another remunerative part-time work.
- The ESSA is a social legislation designed to protect employees who may not have the means to have their own insurance coverage or personal accident policy. The Courts must adopt a purposive approach in interpreting social legislation where the intent of the statute is to protect the employee from untoward injuries arising from his course of employment.
- These factors would have tilted the decision in favour of SOCSO, none of which applied in this case:
- If it was not a daily routine for the Employee to travel to Ipoh and he travelled there merely for a weekend retreat;
- If his employer had arranged for a van to pick him up to and from his workplace, then only the injury suffered from this pick-up route would be considered employment injury; and
- If the employer had rented a house for the employee to ease his commute to work, then arguably only his travel from this employer-rented house to his workplace would be covered by the SOCSO scheme.
Key Takeaways
As “working from home” or “work from anywhere” has become commonplace, defining what constitutes an “employment injury” has grown increasingly intricate.
While this case did not specifically address the scenario of an employee working from home, it underscores a crucial point: employment-related injuries can transpire outside the conventional workplace setting.
Should an employee demonstrate that their commute adhered to a regular route to and from work, it’s likely to be deemed directly linked to their employment, regardless of where the injury occurred. The Courts will also evaluate how “necessary” the route is, and consider whether other options were provided by the employer.
If an employee voluntarily takes an “unnecessary” route to/from work, or otherwise strays from their usual commute for reasons like engaging in additional paid work or pursuing social or economic activities, such deviations could invalidate their claim under SOCSO.
***
This article was written by Sabrina Chang (Associate) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation. Have a question? Please contact us.
