- 雇主指出，该工人此前已多次拒绝加班。雇主也在法庭上提供双方所签署的劳资协议(Collective Agreement)。该协议提到，除非有正当理由，否则员工不能拒绝加班。 在有关协议的条款下，公司在加班事项上需要征得员工同意，然而员工不得无理拒加班的要求。
- 员工则表示他在往年都一直都有同意加班。之后他发生意外事故， 导致他的身体状况不允许他过度加班。
- 在这里笔者也顺道一提，若公司接到通知，员工因健康理由无法继续或长期工作时，雇主不能以员工的意外会影响公司生产率的原因，立刻辞退该员工。在处理方面，公司需要达到Medical Board Out的标准：
Employee Refused to do Overtime Work
- A factory worker was dismissed after refusing to do overtime work three days in a row, on a Friday, Saturday and Sunday. He had been requested to work overtime for two hours on Friday, an eight-hour shift on Saturday and the same on Sunday, his rest day. The employer noted that on many previous occasions, the worker had refused to do overtime.
- At the Industrial Court hearing into the worker’s claim for reinstatement, the employer gave evidence concerning the collective agreement (CA) in force at the time which required workers to agree to work overtime unless they had a valid reason to reject such a request. The CA stated, “Overtime shall be performed at the request of the Company and with the consent of the employee but such consent shall not be unreasonably withheld.”
- In previous years, the employee had carried out the order to work overtime but after he was involved in an accident, for which he was still undergoing physiotherapy at the time of the dismissal, he began to refuse. The employee told the Court that his medical condition precluded him from working overtime excessively.
- The Industrial Court noted that by refusing to work on his rest day, the worker had not committed an act of misconduct as he had the right to reject working on this day. As to the Friday and Saturday overtime work, there was evidence that the Company was facing a shortage of workers on the dates in question and there were many orders to complete.
- Hence, the Court decided that there was no element of victimization of the employee or mala fide when ordering him to work overtime. However, as the worker’s medical reports from the General Hospital made it clear, he would not be able to do his work for long hours without fatigue and other problems. The Court found that the employer should have taken into consideration the worker’s medical issues.
- The dismissal was found to be without just cause or excuse and the employer was required to compensate the employee.
- Employee Misconduct CLJ PUBLICATION
- B Braun Medical Industries Sdn Bhd Iwn. Mohamad Norizal Thiru Abdullah  1 ILR 699
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