The Industrial Court recently upheld the dismissal of an employee who refused to be vaccinated against COVID-19 despite the Company's mandatory vaccination policy.

In Mazuna Begum Binti Kadir Mira v. Malaysia Airlines Berhad [2024] 1 ILR 389, the Company, part of the Malaysian Aviation Group, implemented a COVID-19 Immunisation Policy, requiring all employees to be vaccinated against COVID-19. The Claimant, a Leading Cabin Crew, refused the vaccination without any medical reasons, save that she had concerns on the purported side effects of the vaccine.

The Company considered the Claimant’s refusal to comply with the COVID-19 Immunisation Policy as an act of insubordination, and subsequently terminated her employment. The Claimant claimed she was unfairly dismissed, contending that she had a right to refuse any medical treatment, including vaccination, and that she was discriminated against and victimized by the Company.

The Industrial Court upheld the Claimant’s dismissal, finding her refusal to be vaccinated as insubordination, for, amongst others, the following reasons: -

1. although the Claimant has a legitimate right to be concerned about the side effects of the vaccine, such concern must be reasonable and supported by sound medical justification. The Claimant did not furnish any information/data to support her concerns, nor did she consult a medically qualified person to determine her suitability for the vaccine;
   ‍
2. the Claimant’s refusal to be vaccinated put the Company’s effort to provide and ensure a safe working environment for all employees and the public at great risk, considering the Claimant’s role as a Leading Cabin Crew. The Claimant would not be able to perform her function as a Leading Cabin Crew, as airline passengers would not feel safe in the presence of an unvaccinated cabin crew;
   ‍
3. the Company’s COVID-19 Immunisation Policy was a lawful and reasonable exercise of managerial prerogative. As an employee, it was the Claimant’s duty to obey the Company’s lawful and reasonable instructions. Her wilful refusal to do so warranted dismissal;
   ‍
4. the claim of discrimination was without merit as the COVID-19 Immunisation Policy was made compulsory for all Malaysian Aviation Group employees; and
   ‍
5. due to the severity and wide spread of COVID-19, COVID-19 could not fall under the category of illnesses where a person can easily claim that he/she is endowed with the inalienable right to refuse vaccination or medical attention. Where the two are inconsistent, private interests must give way to the larger and greater interest of the nation or public.

In a similar case, the High Court in Wan Ramli Wan Seman v. LT Kol Sharull Hesham MD Yasin & Ors [2023] 8 CLJ 314 upheld the discharge of a former army sergeant for his refusal of the COVID-19 vaccine without being exempted, which was in breach of the Malaysian Army’s standing order for all members to receive the vaccine.

The High Court found that the respondents were justified in issuing the vaccination order and that it was appropriate for all Malaysian Army members to be vaccinated to curb contagion among themselves, their families, and society.

These cases highlight that an employee’s failure to comply with a lawful and reasonable order of an employer, including mandatory vaccination policies, can warrant dismissal.

‍

*Written by Priscilla Faith Lim, Associate

‍

For any related enquiries, please contact our Partner, Janice Anne Leo (janiceanne@stsp.my) or Senior Associate, Adrienne Sena (adriennesena@stsp.my).

The content of this article is of a general nature and does not constitute legal or other advice or the provision of legal or other professional services, and shall not be relied upon as such.

Click here to download this article.