Employees are required to comply with company policies, failing which the employer may take disciplinary action for misconduct. A recurring question is whether an employee has any discretion to depart from an established policy without prior approval, particularly where the employee believes the underlying purpose of the policy has still been met.
The Industrial Court examined these issues in CSY v JMNH (SA), a case involving termination arising from an employee’s alleged failure to comply with the employer’s face mask policy during working hours.
Factual Background
- The Claimant was employed as a Branch Supervisor at the Company’s Shah Alam restaurant outlet in September 2021.
- On 1.10.2021, the Company received complaints from customers that the Claimant did not wear her face mask properly. The Company reminded the Claimant to wear her face mask properly during working hours, but the Claimant refused to comply.
- Since then, the Claimant was verbally reminded by management on multiple occasions to wear her face mask properly, but the Claimant refused to wear her face mask properly.
- On 24.10.2021, the Claimant’s employment was terminated on the grounds of misconduct.
- Aggrieved with her termination, the Claimant filed a claim of unfair dismissal.
Court’s Findings
The Industrial Court examined CCTV recordings, documentary evidence, and witness testimony, and found that the Company had successfully established repeated non compliance with workplace standard operating procedures.
The Claimant contended that she had worn a face shield and therefore considered herself compliant with the policy requirements. She also asserted that she suffered from a respiratory condition which prevented her from properly wearing a face mask.
The Court rejected these arguments and held that:-
- The applicable government COVID 19 standard operating procedures at the material time required the wearing of face masks in public spaces and business premises. A face shield was not recognised as an equivalent substitute. Hence, reliance on a face shield did not amount to compliance with the policy.
- The alleged respiratory condition was not raised at the time of the warnings or reminders. Despite repeated instructions, the Claimant did not inform management of any medical condition nor provide supporting medical documentation.
Key Takeaways
This case reinforces the principle that employees do not have unilateral discretion to modify or reinterpret company policies based on personal views of compliance or perceived equivalence.
However, employers must still ensure that workplace policies are clearly communicated, consistently enforced, and aligned with applicable legal or regulatory requirements. Where an employee raises medical or other legitimate constraints, these should be properly considered and documented, particularly before disciplinary action is taken.
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This article was written by Leow Ho Eng (Senior 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.
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