Sapura Binti Mohd Noh v 1. ) Sentosa Medical Centre Sdn. Bhd. (WA-A52NCvC-425-06/2022)

AND SENTOSA MEDICAL CENTRE SDN BHD

KPJ HEALTHCARE BERHAD (COMPANY NO: 19920105575 (247079-M)) …DEFENDANT

This is an appeal filed by the Plaintiff against the court decision given on 27.5.2025 which dismissed the Plaintiff’s claim with costs RM 10,000 given to the Defendants. 05/08/2025 16:29:19 WA-A52NCvC-425-06/2022 Kand. 103 S/N laks8FWMH0yabxs8nDvz/w

BACKGROUND Plaintiff is an individual, who worked with the First Defendant as Chief Pharmacist.

The First Defendant owns and operates a private hospital, KPJ Sentosa KL Specialist Hospital (‘KPJ Sentosa KL’).

The First Defendant is a subsidiary of the Second Defendant and KPJ Sentosa KL is a member of the hospitals operated by the KPJ group. The Second Defendant also the shareholder of the First Defendant.

That from time to time the Second Defendant dealt with HR matters of the First Defendant. The Second Defendant’s Human Resources department had issued correspondences, memorandums, policies, etc., which are applicable to employees in the companies within its group, including the Plaintiff.

The events relevant to this claim took place in the years 2021 to 2022 which is at the height of the COVID-19 global pandemic.

Plaintiff claim that her constitutional right has been violated as the Defendants so called ‘forced’ her to take the COVID-19 vaccines although the requirement for the vaccines is not mandatory. Failure to take the COVID-19 vaccination, the Plaintiff is not allowed to enter the working premises and was put under the unpaid leave together S/N laks8FWMH0yabxs8nDvz/w with the medical benefit as the Defendants’ employer was been hold. The Plaintiff also claimed that she was been treated badly by the Defendants.

The Defendants failed to observed it duties under Occupational Safety and Health Act 1994 (OSHA) and certain policies especially regarding avoiding discrimination against employee, treatment at works, which involved verbal, physical, emotional and physiological harassment and few others matters when dealing with the vaccination policy at the workplace and Plaintiff’s stand in refusing to be vaccinated.

The Defendants also in breach of the employment contract by intimidating Plaintiff by unlawful means such as issuing various letters to Plaintiff enquiring about her reasons for not taking the COVID-19 vaccination, directing the Plaintiff to attend counseling on several occasions, aimed at getting her to be vaccinated, removing her from all the communication groups set up, to disrupt her proper execution of the job at the workplace and few other things.

The Plaintiff claim for declaratory relief together with damages and costs. The Plaintiff seek for the Court order as follows: a) A declaration that Plaintiff has acted lawfully in exercising her right not to take the Covid-19 vaccine. S/N laks8FWMH0yabxs8nDvz/w b) A declaration that the Defendants have acted unlawfully in requiring Plaintiff to take or be vaccinated with the Covid-19 vaccine. c) A declaration that the Defendants have acted in violation of Articles 5 and/or 6 and/or 8 of the Federal Constitution. d) Damages for violation of Articles 5 and/or 6 and/or 8 of the Federal Constitution to be assessed and paid by the Defendants to the Plaintiff. e) Damages for breach of contract and breach of statutory duties as aforesaid to be assessed and paid by the Defendants to the Plaintiff. f) Damages for harassment and/or intimidation as aforesaid to be assessed and paid by the Defendants to the Plaintiff. g) Damages for negligence as aforesaid to be assessed and paid by the Defendants to the Plaintiff. h) Aggravated damages and/or exemplary damages as aforesaid to be assessed and paid by the Defendants to the Plaintiff. i) Interest at the rate of 5 % per annum on the damages to be awarded as shall be assessed) to be paid by the Defendants to the Plaintiff and the interest to be paid from the date of the filing of this action to the date of actual payment, or at the rate and period as shall be assessed. j) Costs of this action to be paid by the Defendants to the Plaintiff. S/N laks8FWMH0yabxs8nDvz/w

The Plaintiff called five witness. The Plaintiff’s witnesses are: a) PW1 : Dr. Nordiana Mohammad b) PW2 : Dr Neelaveni Narkunan c) PW3 : Sapura Binti Mohd Noh (Plaintif) d) PW4 : Dr Manimalar Selvi Naicker e) PW5 :

The Defendants called three witnesses during the trial. The witnesses are: a) DW1 : Mohamad Hidhir RamIi b) DW2 : Zaiton Sulaiman c) DW3 :

The court on 27.5.2025 after hearing all the witnesses’ testimony, perusing all the documents involved and listening to the submissions of the parties, on the balance of probabilities decided that the Plaintiff failed proved her case and thus dismissed all the Plaintiff’s prayers in para 14 of the statement of claims with costs RM 10,000.

Not satisfied with the above decision, the Plaintiff filed a notice of appeal dated 5.6.2025 appealing against the whole of the Court's decision. S/N laks8FWMH0yabxs8nDvz/w

Plaintiff’s Case The Plaintiff based her case on the several cause of actions. Basically, the cause of action is based on the violation of the constitutional rights under Article 5 (life and personal liberty), Article 6 (forced labour) and Article 8 (equality). Plaintiff also claims for the breach of employment contract, breach statutory duty under OSHA, tort of negligence, harassment and intimidation.

The chronology of the facts is as below: Date Event 11.5.2010 Plaintiff started working with the First Defendant. When the suit was filed on 9.6.2022, the Plaintiff is the Pharmacist-In-Charge with monthly salary RM14,214 per month Early 2021 - The Defendants have been counselling and/or encouraging its employees to vaccinate against COVID-19. - The Plaintiff refused and/or failed to vaccinate against COVID-19 as for the Plaintiff, the vaccination is not mandatory.

20.9.2021 Defendants implemented a Group Policy which required employees to vaccinate against COVID-19 as an entry requirement to any premises and hospitals under the second Defendant’s group of hospitals effective on S/N laks8FWMH0yabxs8nDvz/w

20.10.2021 including KPJ Sentosa KL (“Vaccination Policy/Entry Requirement ”).

13.10.2021 The Plaintiff was reminded that her failure to provide proof of her vaccination against COVID-19 by 20.10.2021 will result in her being barred from entering the premises of KPJ Sentosa KL, in her placement on unpaid leave and in the suspension of her medical benefits.

16.10.2021 Plaintiff made a police report against the Defendants regarding Vaccination Policy/Entry Requirement and reprimand letter.

20.10.2021 The date of Vaccination Policy/Entry Requirement started being enforced.

22.10.2021 Defendants accorded the Plaintiff a temporary exemption from the Vaccination Policy /Entry Requirement as she had obtained a letter from Dr Nordiana Mohammad (“Dr Nordiana”), the Medical Officer in Charge at KPJ Sentosa KL which stated that she had contracted Chikungunya in August 2021.

3.1.2022 Dr Nordiana informed the Defendants that the Plaintiff was fit to receive the COVID- 19 vaccination.

12.1.2022 &

17.1.2022 Consultation sessions were held with the Plaintiff where she was advised of the 3 options available to her: S/N laks8FWMH0yabxs8nDvz/w

to proceed with the administration of the COVID- 19 vaccine;

(ii) to be placed on unpaid leave until she is administered the vaccine; or

(iii) to obtain a referral letter from a recognized medical practitioner for an exemption against the vaccine. She was provided a deadline until 19.1.2022.

20.1.2022 The Defendants verbally informed the Plaintiff that she would not be allowed to enter the premises KPJ Sentosa KL effective 21.1.2022.

8.2.2022 Defendant’s formal notice, informing the Plaintiff that she would be placed on unpaid leave should she remain unvaccinated as of 28.2.2022.

17.2.2022 Plaintiff made the second police report against the Defendants 18.2.2022 The Plaintiff informed the Second Defendant that she would not comply with Vaccination Policy/Entry Requirement and enclosed a police report which she had made against the Defendants on 17.2.2022.

28.2.2022 Cut of date to show the vaccination proof. Plaintiff continued to enter the premises of KPJ Sentosa KL after the deadline of 28.2.2022. S/N laks8FWMH0yabxs8nDvz/w

2.3.2022 Plaintiff was suspended on full pay for a period of two weeks until 15.3.2022 to permit a full investigation into her acts of insubordination. Her placement on unpaid leave which was supposed to be effective 1.3.2022 was therefore postponed until the end of the suspension period.

15.3.2022 The Plaintiff’s suspension on full pay was extended until 29.3.2022 pending conclusion of the due disciplinary process.

18.3.2022 The Plaintiff was issued a notice of domestic inquiry. She was required to attend a domestic inquiry on 28.3.2022. The Domestic Inquiry however was adjourned as the Plaintiff had undergone a surgical procedure and was on hospitalization/ medical leave.

23.3.2022 The Plaintiff’s suspension was extended to 12.4.2022 pending the domestic inquiry.

30.3.2022 Plaintiff undergone the surgery and was given medical leave until 12.4.2022 12.4.2022 Plaintiff’s medical leave was extended to 27.4.2022.

23.4.2022 The Plaintiff was informed that she would be put on unpaid leave with effect from 1.4.2022 as the suspension period was lifted after the domestic inquiry was indefinitely postponed due to the surgical procedure which the Plaintiff had undergone. S/N laks8FWMH0yabxs8nDvz/w

27.4.2022 Plaintiff’s medical leave was extended to 4.5.2022.

12.5.2022 the Plaintiff was instructed to return to work at KPJ Sentosa KL effective immediately. This was in line with the announcement by the Ministry of Health that vaccination status was no longer a prerequisite for entry into public buildings. As such, the Vaccination Policy/Entry Requirement was no longer applicable.

17.5.2022 - The domestic inquiry against the Plaintiff was conducted. - The Plaintiff was suspended from 17.5.2022 up to 30.5.2022 on full pay pending the outcome of the domestic inquiry.

30.5.2022 - The Plaintiff was found guilty of the allegations in the notice of domestic inquiry and was found to have violated the Defendants’ written instructions by intentionally entering the premises of KPJ Sentosa KL on 1.3.2022, 2.3.2022, and 3.3.2022 despite express prohibition from her superior, Puan Zaiton Binti Sulaiman, the Chief Executive Officer. - She was issued a final warning and instructed to report to the office with effect from 2.6.2022. S/N laks8FWMH0yabxs8nDvz/w

31.5.2022 Since 31.5.2022, the Plaintiff was on paid medical leave. Plaintiff gave the MC from the Psychiatric Department.

9.6.2022 Plaintiff failed this suit.

12.8.2022 - The Plaintiff ceased employment with the First Defendant on 12.8.2022 where she claimed she was purportedly forced to resign. - That is the subject matter of her Industrial Court Case No. 11/4-1159/23 against the First Defendant. - Plaintiff previously apply for unpaid leave due to psychiatric issue but was rejected by the Defendant. Defendant asked the Plaintiff to report for work on 10.8.2022. - Plaintiff claim forced dismissal by letter dated 12.8.2022 and the defendants asked the plaintiff to withdraw her resignation and come back to work before 22.8.2022.

According to the Plaintiff, she has been discriminated and been treated unfairly due to her refusal to take COVID-19 vaccine. The COVID-19 vaccine is not mandatory and she has choice not to take it. However, once she chooses not to take the said vaccine, the Defendant keep pushing her to be vaccinated. Counseling sessions, S/N laks8FWMH0yabxs8nDvz/w letters, were given to the Plaintiff and to the extend the Plaintiff is not allowed to enter the working premises.

For the Plaintiff, Plaintiff should be entitled to go to work and working as usual despite of not taking COVID-19 vaccine. Defendants’ actions in having rules, regulations and policy which prohibit or limit the Plaintiff in doing her work is the violation of Plaintiff’s constitutional right and also in breach of certain laws involving the work place and contract of employment.

Defendants’ Case At the material time, workers in the healthcare sector were considered ‘front liners’. The nature of the Plaintiff’s job scope as a pharmacist would inherently be patient-facing. She was required to work in confined and/or closed spaces where she had close contact with her colleagues and patients. The Plaintiff being an employee in the healthcare industry was also deemed a front liner at the material period.

In August 2021, the Covid-19 cases spiked in Malaysia, reaching around 20,000 cases per day.

On 20.9.2021, the Defendants implemented a group policy which required employees to vaccinate against COVID-19 as an entry requirement to any premises and hospitals under the Second S/N laks8FWMH0yabxs8nDvz/w Defendant’s group of hospitals effective 20.10.2021 (“Vaccination Policy”), which broadly encompassed the following: a) Employees who wished to physically enter the premises of the hospitals under the Second Defendant’s group of hospitals were required to provide a valid certificate of vaccination against COVID-19; b) Employees who were unable to meet the above requirement without reasonable cause would be placed on unpaid leave until and unless proof of vaccination against COVID-19 is provided; and c) Employees who remain unvaccinated as of 20.10.2021 may have certain benefits such as medical benefits and allowances suspended until such time as proof of vaccination is provided.

The Vaccination Policy was implemented in view of the Defendants’ statutory obligations as an employer to protect the health and safety of its employees, customers and patients. As the healthcare employees of KPJ Sentosa KL are front liners, vaccination is critical to ensuring the health and safety of this essential workforce, protecting not only them but also their patients, families and communities. S/N laks8FWMH0yabxs8nDvz/w

The Vaccination Policy was crafted in alignment with the stance of the following government bodies and associations, all of which were in support of Covid-19 vaccination for employees and/or employees in the private healthcare sector to protect against hospitalization, severe disease, and death including but not limited to: i) Ministry of Human Resources; ii) Ministry of Health; iii) Public Service Department; iv) Malaysian Employers Federation; and v) Association of Private Hospitals of Malaysia.

The Plaintiff’s terms and conditions of employment, among others, allowed the Defendants to introduce and/or promulgate policies, procedures and other administrative instructions from time to time, to which the Plaintiff’s adherence was required. The Plaintiff was also expected to comply with reasonable orders issued to her as an employee of the First Defendant.

Compliance with the Vaccination Policy was also required under the Plaintiff’s main duties, which stated that the Plaintiff was required to adhere to policies, procedures, guidelines and work instructions, and to comply with any instruction or measure on occupational safety and health. S/N laks8FWMH0yabxs8nDvz/w

Since early 2021, the Defendants have been counselling and/or encouraging its employees to vaccinate against Covid-19. The Plaintiff however refused and/or failed to vaccinate against Covid-19.

On 13.10.2021, the Plaintiff was reminded that her failure to provide proof of her vaccination against Covid-19 by 20.10.2021 will result in her being barred from entering the premises of KPJ Sentosa Hospital, in her placement on unpaid leave, and in the suspension of her medical benefits.

Around October 2021, the Defendants accorded the Plaintiff a temporary exemption from the Vaccination Policy, as she had contracted Chikungunya. This was following the advice from Dr Nordiana Mohammad (“Dr Nordiana”), the Medical Officer in Charge at KPJ Sentosa KL.

On 3.1.2022, the Defendants were informed by Dr Nordiana that the Plaintiff was physically fit and able to receive the Covid-19 vaccination.

Consultation sessions were then held with the Plaintiff where she was advised of the 3 options available to her: i) To proceed with the administration of the Covid-19 vaccine; S/N laks8FWMH0yabxs8nDvz/w ii) To be placed on unpaid leave until she is administered the vaccine; iii) To obtain a referral letter from a recognized medical practitioner for an exemption against the vaccine. She was provided a deadline until 19.1.2022.

The Plaintiff refused, and continued to refuse, to be vaccinated against COVID-19 due to personal reservations regarding the vaccine, despite the Defendants having taken various consultative steps to amicably encourage its employees including the Plaintiff to vaccinate against COVID-19.

The Plaintiff had thereafter behaved in an insubordinate manner by continuing to enter the premises of the First Defendant after the 19.1.2022 deadline. As such, on 20.1.2022, she was informed that she would not be allowed to enter the premises KPJ Sentosa KL effective 21.1.2022. She thereafter refused to comply with this instruction again. Her conduct was in blatant defiance of the Defendants’ instructions and/or lawful orders.

On 8.2.2022, the Defendants informed the Plaintiff that they would have no choice but to take the administrative action of placing her on unpaid leave pursuant to the Vaccination Policy should she remain unvaccinated as at 28.2.2022. This was in the interest of protecting S/N laks8FWMH0yabxs8nDvz/w the health and safety of other employees, customers and patients of the First Defendant.

On 18.2.2022, the Plaintiff informed the Second Defendant that she would not comply with the Vaccination Policy. The Plaintiff thereafter continued to refuse to comply with the Vaccination Policy. She instead continued to behave in an insubordinate manner when she continued to enter the premises of KPJ Sentosa KL, after the deadline of 28.2.2022.

The Plaintiff’s acts of insubordination were thereafter investigated by way of a domestic inquiry. From 2.3.2022 to 15.3.2022, and a subsequent extension to 29.3.2022, she was suspended on full pay pending conclusion of the disciplinary process.

Owing to the Plaintiff’s hospitalization at the material time, the domestic inquiry scheduled for 28.3.2022 was postponed to a later date.

On 23.4.2022, the Plaintiff was informed that she would be put on unpaid leave with effect from 1.4.2022 as the suspension period was lifted after the domestic inquiry was indefinitely postponed. S/N laks8FWMH0yabxs8nDvz/w

On 12.5.2022, the Plaintiff was instructed to return to work at KPJ Sentosa KL effective immediately. This was in line with the announcement by the Ministry of Health that Malaysia would be transitioning into the endemic phase, and vaccination status was no longer a prerequisite for entry into public buildings.

On 17.5.2022, the domestic inquiry against the Plaintiff was conducted for her acts of insubordination. She was suspended on full pay from 17.5.2022 to 30.5.2022 pending the outcome of the domestic inquiry. She thereafter continued to be paid her monthly salary.

On 30.5.2022, the Plaintiff was found guilty of the allegations in the notice of domestic inquiry, and was found to have violated the Defendants’ written instructions by intentionally entering the premises of KPJ Sentosa KL on 1.3.2022, 2.3.2022, and 3.3.2022 despite express prohibition(s) from her superior, Puan Zaiton Binti Sulaiman, the Chief Executive Officer. She was issued a final warning and instructed to report to the office with effect from 2.6.2022.

The Plaintiff, however, has been on paid medical leave from 31.5.2022, up until the filing of the Defendants’ defence on 18.7.2022. S/N laks8FWMH0yabxs8nDvz/w

The Defendants deny having breached any of the Plaintiff’s constitutional rights, contract and statutory rights. Further, the Defendants deny having conducted themselves in any manner that may constitute harassment, discrimination and/or negligence towards the Plaintiff.

According to the Defendants, they have the vaccination policy to limit the entrance of their premises for those who not vaccinated with COVID-19 vaccine at the material time is in line with the ongoing government policy at that time. This is to ensure the safety for the premises and others stakeholders as the Defendants is playing a major role in healthcare sectors.

The Plaintiff’s act in not following the Defendant’s policy and keep entering the Defendant’s premise despite of not having the COVID- 19 proof of vaccination is amount to the act of insubordination and therefore entitled for domestic enquiry to be done against the Plaintiff.

THE COURT FINDING The agreed issues to be tried are as follows: a) Issue 1: Whether the Defendants’ actions constitute: i) A breach of constitutional rights; ii) A breach of the statutory provisions of the Occupational Safety and Health Act 1994 (“OSHA”); S/N laks8FWMH0yabxs8nDvz/w iii) Harassment and/or intimidation; iv) An unlawful act and/or negligence. b) Issue 2: Whether the Plaintiff’s pleaded case against the Defendants can be proven. c) Issue 3: Whether the Plaintiff is entitled to the relief(s) sought in this action against the Defendants. d) Issue 4: Whether the Defendants have a legitimate and/ or proven defense against the Plaintiff.

Issue 1, 2 and 4 The Plaintiff submits that at Plaintiff has the following constitutional rights that apply to her as a citizen as well as an employee of the First Defendant: a) That as per Article 5 of the Federal Constitution, Plaintiff has the right to life or personal liberty to her livelihood, and that gave her the freedom to choose medication or vaccine. In this case Plaintiff refused to take COVID-19 vaccine. The Defendant cannot force the Plaintiff to take the said vaccine. b) That as per Article 6 of the Federal Constitution Plaintiff has been afforded the protection as the employee from all forms of forced labour. In this case, the Defendant’s Vaccination Policy/Entry Requirement will force the Plaintiff to take the COVID-19 vaccine. It put a condition for the Plaintiff in order to work with the Defendants. S/N laks8FWMH0yabxs8nDvz/w c) That as per Article 8 of the Federal Constitution, the Plaintiff has been afforded the protection to be treated equally in law and not to be discriminated against in her profession or employment. Since the Plaintiff refused to take the COVID-19, she was treated unfairly from other employee who take the said vaccine whereby the Plaintiff is given counselling, was remove from the group WhatsApp at work, was put under unpaid leave and the medical benefit has been suspended. The Plaintiff is cannot enter the her working premise as she not taking COVID-19 vaccine.

Articles 5, 6, and 8 of the Federal Constitution respectively read as follows: Article 5. Liberty of the person.

No person shall be deprived of his life or personal liberty save in accordance with law.

Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him. S/N laks8FWMH0yabxs8nDvz/w

Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate's authority: Provided that this Clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this Clause shall be have been an integral part of this Article as from Merdeka Day: Provided further that in its application to a person, other than a citizen, who is arrested or detained under the law relating to immigration, this Clause shall be read as if there were substituted for the words "without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey)" the words "within fourteen days": And provided further that in the case of an arrest for an offence which is triable by a Syariah court, references in this Clause to a magistrate shall be construed as including references to a judge of a Syariah court. S/N laks8FWMH0yabxs8nDvz/w

Clauses (3) and (4) do not apply to an enemy alien. Article 6. Slavery and forced labour prohibited.

No person shall be held in slavery.

All forms of forced labour are prohibited, but Parliament may by law provide for compulsory service for national purposes.

Work or service required from any person as a consequence of a conviction or a finding of guilt in a court of law shall not be taken to be forced labour within the meaning of this Article, provided that such work or service is carried out under the supervision and control of a public authority.

Where by any written law the whole or any part of the functions of any public authority is to be carried on by another public authority, for the purpose of enabling those functions to be performed the employees of the first-mentioned public authority shall be bound to serve the second-mentioned public authority, and their service with the second-mentioned public authority shall not be taken to be forced labour within the meaning of this Article, and no such employee shall be entitled to demand any right from either the first-mentioned or the second-mentioned public authority by reason of the transfer of his employment. S/N laks8FWMH0yabxs8nDvz/w Article 8. Equality.

All persons are equal before the law and entitled to the equal protection of the law.

Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.

No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority.

This Article does not invalidate or prohibit—

any provision regulating personal law;

any provisions or practice restricting office or employment connected with the affairs of any religion or of an institution managed by a group S/N laks8FWMH0yabxs8nDvz/w professing any religion, to persons professing that religion;

any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service;

any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election;

any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Merdeka Day;

any provision restricting enlistment in the Malay Regiment to Malays.

The Court agrees with the Defendants’ submission that the Plaintiff’s action for a constitutional remedy against the Defendants as private bodies is unsustainable in law. This is because the Federal S/N laks8FWMH0yabxs8nDvz/w Constitution it cannot be invoked by one private party against another the Federal Constitution as does not have a "horizontal effect".

In the case Beatrice a/p Fernandez v Sistem Penerbangan Malaysia & Anor [2005] 2 CLJ 713, the Court stated as follows: “… We took time to examine this allegation carefully and we found that it is simply not possible to expand the scope of art. 8 of the Federal Constitution to cover collective agreements such as the one in question. To invoke art. 8 of the Federal Constitution, the applicant must show that some law or action of the Executive discriminates against her so as to controvert her rights under the said article. Constitutional law, as a branch of public law, deals with the contravention of individual rights by the Legislature or the Executive or its agencies. Constitutional law does not extend its substantive or procedural provisions to infringements of an individual’s legal right by another individual. Further, the reference to the “law” in art. 8 of the Federal Constitution does not include a collective agreement entered into between an employer and a trade union of workmen.”

This principle was reaffirmed by the Court of Appeal in Airasia Bhd v Rafizah Shima Mohamed Aris [2015] 2 CLJ 510 where Mohd Zawawi Salleh JCA stated: S/N laks8FWMH0yabxs8nDvz/w “[25] In our considered opinion, the learned judge erred in law and facts in not following the Federal Court's decision in Beatrice 's case. There is no rhyme nor reason for the learned judge not to follow the decision of the highest court in Malaysia. It is clear that the Agreement entered between the appellant and the respondent is a lawful contract between private parties though it requires the respondent to resign upon being pregnant or termination would take place in the event of refusal to resign. [26] The interpretation accorded by Beatrice 's case on the constitutional effect is called "vertical effect" which essentially stipulates that constitutional law, as a branch of public law, only addresses the contravention of an individual's rights by a public authority. We must remind High Court Judges that they must observe judicial precedents in the interest of finality and certainty in the law and for orderly development of legal rules. (See PP v. Datuk Tan Cheng Swee & Anor [1980] CLJU 58; [1980] 1 LNS 58; [1980] 2 MLJ 277; Periasamy Sinnapan & Anor v. PP [1996] 3 CLJ 187; [1996] 2 MLJ 557).”

In Gabungan Pertubuhan Teksi, Kereta Sewa, Limosin Dan Teksi Lapangan Terbang Semalaysia-Gtsm v Grabcar Sdn Bhd [2022] 1 CLJ 956, the High Court ruled that provisions of the Federal S/N laks8FWMH0yabxs8nDvz/w Constitution cannot be invoked in a claim against private parties or bodies: “[57] It is an accepted fact that the Society and Grab Car are private parties. This is not a claim by individuals against the public authority or the Government but between private parties (the Society and Grab Car). As such, the Society cannot invoke the provisions of the Federal Constitution in bringing a claim against the defendant/Grab Car. From the authorities above, there is no horizontal effect in the enforcement of constitutional claims. [58] Hence, question 5 ought to be answered in the negative in that the Constitution does not have a horizontal effect to confer rights for individual to bring claims against another individual and that the Society’s constitutional claims against Grab Car for breach of arts. 5, 6, 8 and 13 of the Federal Constitution in paras. 9(iii) and 25(a)(iii) of the statement of claim be dismissed.”

The Defendants are private bodies. The Plaintiff’s cause of action of breach of constitutional rights under Articles 5, 6, and 8 of the Federal Constitution therefore cannot be sustained in this action. S/N laks8FWMH0yabxs8nDvz/w

At the same time, the Court agrees with the Defendant’s submission that there is no violation of the Plaintiff’s constitutional rights in this case.

General rules are that there will be no absolute right under the Federal Constitution. Certain limitation to the fundamental liberty is allowed when the law and regulations permit to do so. The Court of the opinion that the Defendant is entitled to have the vaccination policy/entry requirement at the material time. The Defendant’s action when dealing with the Plaintiff’s refusal to take COVID-19 vaccine is reasonable and justifiable.

The Plaintiff was responsible for the management and operations of pharmaceutical services at KPJ Sentosa KL. Her duties were inherently patient-facing, as seen in the summary of her duties captured in the Job Description & Competency Profile signed by her, inter alia, as follows: a) Dispensing medication and/or pharmaceutical drugs prescribed by consultants and/or other registered medical personnel; b) Managing plans, directing and overseeing all activities of the services to ensure proper provision and dispensing of medication; c) Ensuring quality assurance and optimal patient care in all functions of pharmaceutical services. S/N laks8FWMH0yabxs8nDvz/w d) Supervising all activities in the pharmacy including compounding, dispensing, sales and supply of medication; e) Overseeing the work of pharmacy support staffs; f) Supervising all pharmacy staff including hiring, orientation, determining workload and delegating assignments, training, monitoring, evaluating performance and initiative corrective and disciplinary actions; g) Adhering to the Defendants’ policies, procedure, guidelines and work instructions.

According to the Plaintiff, the Defendants owned certain statutory duties under the provisions of the Occupational Safety and Health Act 1994, (OSHA) arising from the contract of employment of Plaintiff with the First Defendant. The Defendants had breached the following: a) In failing to ensure the safety, health, and welfare of the Plaintiff as the employee was being protected, in complying with section 15 (1) of the Act; b) In failing to ensure that a written statement of the general policy of safety and health aspects of the Plaintiff as the employee was made available by the First Defendant for the benefit of the Plaintiff, in complying with Section 16 of the Act. c) In failing to avoid discrimination against the Plaintiff as the employee, and failed to avoid injuring her or putting her in a detrimental position following her complaint about the treatment S/N laks8FWMH0yabxs8nDvz/w at work that she considered as not safe or risky to her health, in complying with Section 27 (1) (a) of the Act; and

The Plaintiff also claimed that the First Defendant also failed to observe the Zero Tolerance Policy of 2.4.2021. This policy was aimed at avoiding verbal and physical harassment, including emotional and physiological harassment, and in keeping with the policy for avoiding all forms of discrimination at the workplace at KPJ Sentosa KL being the workplace of the Plaintiff.

The Defendants’ duty and obligation to provide a safe and healthy working environment is captured in under OSHA are as follow: Section 15. General duties of employers “(1) It shall be the duty of every employer and every self-employed person to ensure, so far as is practicable, the safety, health and welfare to work of all his employees.

Without prejudice to the generality of subsection (1), the matters to which the duty extends include in particular—

the provision and maintenance of plant and systems of work that are, so far as is practicable, safe and without risks to health; S/N laks8FWMH0yabxs8nDvz/w

the making of arrangements for ensuring, so far as is practicable, safety and absence of risks to health in connection with the use or operation, handling, storage and transport of plant and substances;

the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is practicable, the safety and health at work of his employees;

so far as is practicable, as regards any place of work under the control of the employer, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of the means of access to and egress from it that are safe and without such risks; Section 16. Duty of employer to formulate occupational safety and health policy. Except in such cases as may be prescribed, it shall be the duty of every employer to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the safety and health at work of his employees and the organization and arrangements for the time being in force for S/N laks8FWMH0yabxs8nDvz/w carrying out that policy, and to bring the statement and any revision of it to the notice of all of his employees. Section 27. Discrimination against employee, etc.

No employer shall dismiss an employee, injure him in his employment, or alter his position to his detriment by reason only that the employee—

makes a complaint about a matter which he considers is not safe or is a risk to health;

is a member of a safety and health committee established pursuant to this Act;

exercises any of his functions as a member of the safety and health committee; or

has assisted an officer or assessor in any inquiry in the conduct of any inspection or investigation under this Act.

No trade union shall take any action on any of its members who, being an employee at a place of work—

makes a complaint about a matter which he considers is not safe or is a risk to health; S/N laks8FWMH0yabxs8nDvz/w

is a member of a safety and health committee established pursuant to this Act; or

exercises any of his functions as a member of the safety and health committee.

An employer who, or a trade union which, contravenes the provisions of this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to a term of imprisonment not exceeding one year or to both.

Notwithstanding any written law to the contrary, where a person is convicted of an offence under this section the Court may, in addition to imposing a penalty on the offender, make one or both of the following orders:

an order that the offender pays within a specific period to the person against whom the offender has discriminated such damages as it thinks fit to compensate that person;

an order that the employee be reinstated or re-employed in his former position or, where that position is not available, in a similar position. S/N laks8FWMH0yabxs8nDvz/w

The Court in the opinion that the Defendants did not breach any duties under the OSHA. At the same time, section 27 deal with the criminal offence while in this case, deal with the civil matters. The Court refer to the nature of the Plaintiff’s work and workplace and agrees with the Defendants that the Defendants' obligation to uphold a safe and healthy work environment must be gauged by the unique environment of the hospital where the Plaintiff was employed. This duty extends beyond the protection of employees to encompass the well-being of patients, including vulnerable individuals such as those with weakened immune systems, pregnant women, the elderly, and children, who seek treatment at KPJ Sentosa KL.

The duty to provide a safe and healthy working environment is not limited not limited to employees per se but it extends to any person on its premises and in this case, it would include patients in KPJ Sentosa KL. Section 17 of OSHA states: Section 17. General duties of employers and self-employed persons to persons other than their employees.

It shall be the duty of every employer and every self-employed person to conduct his undertaking in such a manner as to ensure, so far as is practicable, that he and other persons, not being his employees, who may be affected thereby are not thereby exposed to risks to their safety or health. S/N laks8FWMH0yabxs8nDvz/w

It shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons, not being his employees, who may be affected by the manner in which he conducts his undertaking, the prescribed information on such aspects of the manner in which he conducts his undertaking as might affect their safety or health.

Since the Defendants had a duty to ensure a safe and healthy work environment for its employees as well as patients and their families, the Defendants can create certain policies to cope with the current situation which is COVID-19 at the material time. The counselling session, the letters and also the vaccination policy/ entry requirement is in line with the OSHA.

At the material time, especially during the year 2021, COVID-19 remind the main threat. The world never faces the situation like COVID-19 before, and the measurement taken during that time is consider as the best measurement that one could deal and at the material time.

This case revolves around the implementation of the Vaccination Policy/Entry Requirement by the Defendants which required S/N laks8FWMH0yabxs8nDvz/w employees to vaccinate against COVID-19 as an entry requirement to any premises and hospitals under the Second Defendant’s group of hospitals. Since the Plaintiff is not vaccinated, she is not allowed to come to the hospital and working as usual.

In August 2021, COVID-19 cases reached around 22,000 cases per day and close to 267,000 active cases. (see bundle D pages 82- 84). The Vaccination Policy/Entry Requirement was introduced on 20.9.2021 in response to the spike.

The Court take judicial notice that Defendants vaccination policy is in line with the government action and policy at the material time. Government of Malaysia during the material time do have the policy to restrict the movement of those who do not take the COVID-19 vaccine, whereby they were not allowed to enter into public premises without showing proof of vaccination such as eateries, shopping malls etc.

Beside OSHA, the Plaintiff also claim that the Defendants has breach it duty under tort and the Defendants is liable for negligence to the Plaintiff.

In the case Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd [ 2013] 6 CLJ 958 the Court of S/N laks8FWMH0yabxs8nDvz/w Appeal stated that in establishing the tort of negligence, Plaintiff must prove the following: a) Whether the Defendants owe the Plaintiff a duty of care; b) Whether the Defendants were in breach of that duty of care; and c) Whether the Plaintiff suffered damage as a result of that breach of duty and the damage is not too remote.

The Defendant do owe the Plaintiff a duty of care either under OSHA and general tort, to have a safe and healthy working environment. However, whether the Defendant breach that duty of care?

The question of whether there was a breach of the duty of care by the Defendants depends on whether the Defendants did something which they ought not to have done, or omitted to do something which they ought to have done.

The test is objective and subjective. It is subjective because whether the Defendants did something or omitted to do something turns on the particular facts of the case. However, whether the act or omission amounted to a breach of duty is determined by what a reasonable and prudent man would do or would not do in the circumstances - the objective test [Refer to Soh Yen Ling v S/N laks8FWMH0yabxs8nDvz/w Malayan Banking Berhad [2017] CLJU 716 and Arab-Malaysian Finance Bhd v Steven Phoa Cheng Loon & Ors [2003] 1 CLJ 585, 604].

According to the Court, the Defendants did not breach its duty of care as its actions were lawful and it is a reasonable measure as the Defendants is in the private healthcare sector and Defendants’ actions is in line with the posture of the Government of Malaysia and others bodies at the material time.

As discuss earlier, the Defendants need to have some measurement to balance the safety all the stakeholders including Plaintiff as workers and also the patients and relative of the patients.

In addition to the Government of Malaysia restriction orders that only those with the COVID-19 vaccination proof can enter the public premises, the Public Service Department (PSD) who governs and manages employees in the public sector also have some policy regarding vaccination. The PSD stated in September 2021 that those who refused vaccination without any medical exemptions would be subject to disciplinary action. The article also elucidates that the Government of Malaysia had, at that period of time, made vaccination mandatory for all employees in the public sector (Bundle F-pages 75-76). S/N laks8FWMH0yabxs8nDvz/w

The Ministry of Health issue Annex 21 on the Management of Healthcare Workers (HCW) (“Annex 21”) and among the “specific actions to be taken” by healthcare providers/ hospitals issued by the Ministry of Health as seen in Annex 21 was to ensure all healthcare workers were to “get their booster dose as soon as possible. (Bundle D, page 29).

The healthcare workforce was one of the first groups to be prioritized for vaccination in Malaysia, and Annex 21 included guidance on how to manage the vaccination rollout for HCWs, ensuring that they were vaccinated as soon as vaccines became available.

During that material time, the citizens and non-citizens alike were strongly encouraged by the Government of Malaysia to vaccinate. This included public health orders requiring proof of vaccination for persons entering restaurants, government premises, shopping complexes, and events etc.

The posture of the Ministry of Health during the material times was widely reported to the public which were in support of vaccination are set out below: a) The Ministry of Health published a statement dated 24.2.2021 regarding the formal commencement of the National COVID-19 S/N laks8FWMH0yabxs8nDvz/w Immunization Programme (“PICK”). PICK is a national vaccination campaign implemented by the Government of Malaysia as an approach to curb the spread of COVID-19 and boost the immunization rate among citizens and non-citizens alike. Citizens and non-citizens alike were strongly encouraged by the government to vaccinate. This included public health orders requiring proof of vaccination for persons entering restaurants, government premises, shopping complexes, and events etc. b) The Ministry of Health took the position that vaccines are highly protective against hospitalization, severe disease, and death for a variety of strains of COVID-19. For instance, Annex 21 highlights that vaccines are highly protective against hospitalization, severe disease, and death for a variety of strains of COVID-19. It specifically states that one of the “specific actions to be taken” by healthcare providers i.e., hospitals is to ensure all healthcare workers were to “get their booster dose as soon as possible”. c) The Health Minister at the material time, YB Khairy Jamaluddin, had released a statement regarding the efficacy of the vaccines in Malaysia’s portfolio in reducing deaths and severe infections, and/or admissions to Intensive Care Units. S/N laks8FWMH0yabxs8nDvz/w

The posture of the Government of Malaysia which were widely reported to the public also echoed the need for vaccination to tackle the COVID-19 pandemic as set out below: a) The PSD had released a statement in September 2021 stating that those who refused vaccination without any medical exemptions would be subject to disciplinary action. The article also elucidates that the Government of Malaysia had, at that period of time, made vaccination mandatory for all federal civil servants. It was reported that the vaccination mandate was intended to provide confidence to the general public, and was aligned with the aim of restoring government services to optimum capacity ahead of the aforesaid economic reopening. b) In a statement by the Human Resources Minister at the material time, Datuk Seri M Saravanan. It was reported that action could be taken against workers who refuse to be vaccinated for causing and/or creating an unsafe environment at the workplace. He emphasized that there is a duty on employers to ensure the health and safety of themselves and others at the workplace. c) The Human Resources Minister at the material time, Datuk Seri M. Saravanan, was reported stating that workers refusing to be vaccinated against COVID-19 could face action under OSHA S/N laks8FWMH0yabxs8nDvz/w for causing an unsafe environment at the workplace, emphasizing that OSHA requires employers to ensure the safety and health of themselves and others at the workplace.

There was also a host of statements made by other bodies which were made widely available to the public, including the Defendants, during the material time. These statements echo the posture of the Ministry of Health and Government of Malaysia relating to vaccine efficacy: a) A news article dated 3.9.2021 reported on a statement made by the president of the Malaysian Employers Federation (“MEF”) at the material time, Datuk Syed Hussain Syed Husman, highlighting that employers have a clear priority in wanting their staff inoculated to protect their co-workers as well as their clients, in line with the legal duty of employers to provide a safe and healthy work environment. The news report also records: “Employees who refuse to be vaccinated without reasonable excuses may be barred from entering the workplace until such time as they are vaccinated or the government declares that Malaysia is free from COVID-19”. Vaccination was also noted to be the only way for the population to achieve herd immunity and protect themselves against COVID-19. S/N laks8FWMH0yabxs8nDvz/w b) A news article dated 1.10.2021 reported a statement by the President of the Association of Private Hospitals Malaysia Dr Kuljit Singh, that the private sector must emulate the posture of the government and make vaccination for staff mandatory, to protect the welfare of staff and patients.

Thus, the Court consider the Defendants vaccination policy/entry requirement at the material time is lawful and reasonable at the material time. This is because PSD make it mandatory for the public servant at the material time and there is some and there are so many publications and policy to encourage vaccination. Although the Defendants is in the private sectors, and the vaccination is not mandatory, but is encouraged, but due to the position that the Defendants is in the health industry and are the healthcare provider, the Defendants should be more caution and more responsible regarding the vaccination.

In the Industrial Court Mohamad Hafiz Haji Husen v Airasia Berhad (Award No.: 2349 Of 2023) and Amir Hirman Sulaiman v Airasia Berhad (Award No.: 2363 Of 2023) held that the Covid- 19 full vaccination requirement implemented by the employer was a lawful and reasonable order within the ambit of employment. The Industrial Court recognized that the employer’s right to adopt S/N laks8FWMH0yabxs8nDvz/w higher public health standards at the workplace to make sure its employees are not exposed to or do not expose any health risks such as COVID-19 infections, especially in the confined area of an aircraft. The termination of the employees therein for their failure to comply with the employer’s COVID-19 vaccination policy was justified given the gravity of their misconduct, as follows: “This Court finds the Plaintiff’s dismissal was not a harsh punishment when the Plaintiff was against the Company's COVID-19 vaccination policy, which benefits the employees, the employer, and the public. Therefore, this Court concludes that the Company justified or excused the dismissal for all the above reasons.”

In Mazuna Begum binti Kadir Mira v Malaysia Airlines Berhad [Award No. 196 of 2024], the Industrial Court took judicial notice of the posture of the Government of Malaysia in encouraging vaccination and the need for employers to introduce a predictive and prescriptive preventive management policy to manage the spread of COVID-19 as seen below: [17] It is also not in dispute that the Ministry of Health had strongly encouraged every person residing in Malaysia to be vaccinated in view of the emergence of the Delta Variant of the COVID-19 virus which is easily transmissible. Numerous S/N laks8FWMH0yabxs8nDvz/w announcement and other forms of communications, dissemination of information to public at large was carried by the Government of Malaysia. … [32] The COVID-19 pandemic was unprecedented and the scale in which it affected the world was something that is unimaginable in our recent memory. Every nation was racing against time to do what was best to protect its people. The virus is airborne, highly contagious and easily transmissible unlike heart disease, cancer or diabetes which are not transmissible or contagious (not to be confused as transmissible or passed on hereditarily or genetically). Though in some instances like an individual’s right not to accept blood transfusion in the face of death has been recognized as fundamental personal and human rights elsewhere and this has been articulated by a leading Malaysian anesthesiologist Dato' Dr K Inbasegaran in JILID 5 BIL 4 NOVEMBER 2003 Newsletter of the Malaysian Society of Anesthesiologists and the College of Anesthesiologists, Academy of Medicine of Malaysia as stated below which this Court has taken judicial notice but the spread of COVID-19 virus requires a predictive, prescriptive preventive management policy…” S/N laks8FWMH0yabxs8nDvz/w

The Plaintiff argue that the vaccination policy/entry requirement tantamount to the breach of the employment contract between Plaintiff and Defendants. The Defendants action in putting the Plaintiff on unpaid leave, together with the suspension in March 2022 the issuance of the notice for domestic inquiry against the Plaintiff also should be considered as breach of contract by the Defendants.

The Court refer to the relevant terms and conditions of the Plaintiff’s employment was, inter alia, as follows a) The Plaintiff was expected to adhere to the policies and procedures set forth by the First Defendant and rules and regulations which may be promulgated from time to time; (Clause 15) b) The Plaintiff’ s employment is subject to the policies, procedures and other administrative instructions which may from time to time be issued relating to the conditions of service, employee benefits, work and conduct of employees; (Clause 19) c) The Plaintiff was not to conduct herself in such a manner as may be construed as an act of insubordination; d) The First Defendant reserved the right to amend the terms and conditions of the Plaintiff’s Employment Contract at any time and at its absolute discretion by notifying the Plaintiff of the same S/N laks8FWMH0yabxs8nDvz/w e) The Plaintiff was also required to abide by the Second Defendant’s Policy on Handling Employee Misconduct (“Disciplinary Policy”). The Disciplinary Policy states that willful insubordination or disobedience whether alone or in combination with others to any lawful and reasonable order of a superior is a major form of misconduct.

Plaintiff’s contract of employment entitled the Defendant to introduce new policy and new rules and regulation from time to time. The Court agree with the Defendants that the Plaintiff failed to specific which clause or term that the Defendants had breached in the employment contract.

Thus, the Court is satisfied that the Defendant acted within the express and/or implied right under the employment contract, job description, policy on work ethics and code of conduct by introducing the said Vaccination Policy / Entry Requirement.

The Plaintiff stress out that the vaccination is not mandatory. When the Vaccination Policy/ Entry Requirement, Plaintiff is seemed to be left with no choice except to take COVID-19 vaccine. This is actually not true. Plaintiff is given 3 options: a) Vaccinate and continue to earn an income; S/N laks8FWMH0yabxs8nDvz/w b) Remain unvaccinated but provide a reasonable cause; or c) Remain unvaccinated but lose her income.

The Plaintiff can remain unvaccinated, but she supposed to provide the reasonable cause for that. In this case, the reason for the Plaintiff to remain unvaccinated is because the COVID-19 vaccination is not being mandatory by the Government of Malaysia.

It is true that COVID-19 vaccination is not mandatory. However, there is certain regulations and policies imposed by the government during COVID-19 pandemic. The restriction of movement and other things was done under Prevention and Control of Infectious Diseases Act 1988 (Act 342). Those who failed to show the COVID-19 vaccination proof cannot enter the public premises such as hospital, restaurant and others. Those who failed to observe the restriction move moment order can be subject to criminal offence.

Certain sector makes the vaccinations status as mandatory. This can be seen in the case Wan Ramli Wan Seman v Lt Kol Sharull Hesham Md Yasin & Ors [2023] 8 CLJ 314 whereby, Ahmad Kamal Md Shahid J held that the COVID-19 vaccination S/N laks8FWMH0yabxs8nDvz/w order and his superior officer’ s order to comply with the same was lawful and he was hence, eligible and compulsorily required to be vaccinated since he did not provide any material or evidence to exempt him from receiving the COVID-19 vaccine as follows: “[30] The applicant received a lawful command from his superior officer, captain Noor Azlan bin Husin, Kompeni A Leader, Batalion 24, regarding the mandatory requirement of COVID-19 vaccine on all Malaysian Army personnel on 5 July 2021, 6 July 2021 and 7 July 2021. [31] Further, this court finds that the applicant did not provide any materials or evidence to exempt him from receiving the COVID-19 vaccine. As such, it is considered he is eligible and compulsorily required to be vaccinated. [32] I am of the view that as a member of the Malaysian Army serving in the Batalion 24, it is the applicant’ s duty to obey the standing orders and lawful command of his superior officers …”

In our case, Plaintiff is not the public servant. She is the employee of the Defendants. Defendants is not an ordinary employer as it part of the healthcare provider who play important role during the COVID-

Plaintiff also a frontliner whereby the both Plaintiff and Defendants carry a higher duty and responsibility compared to an S/N laks8FWMH0yabxs8nDvz/w ordinary person. The vaccination policy and entry requirement are an appreciate balance between the employer’s business interests, the rights of its employees to a safe and healthy work environment, and the interests of the clients they served and the national policy and situation at the material time.

In Mazuna Begum (supra), the Industrial Court held that the implementation of the employer’s immunization policy was cohesive with the Government of Malaysia’ s COVID-19 Immunisation Programme, and was therefore implemented for the greater good of the wider public. Such an immunization policy could not therefore be superseded by the stance of members of society refusing to be vaccinated: “…[34 ] The case before this Court involves a contractual relationship between an employee and employer pursuant to provisions of “ The Act”, and it must be borne in mind that the Malaysian Aviation Group’ s immunization policy was designed to be in harmony with the government of Malaysia’s National COVID-19 Immunisation Programme, the implementation of which was designed for the greater good of all Malaysian citizens thus protecting the welfare and wellbeing of all and as such this National Immunisation Programme and the Malaysian Aviation Group’s Immunization policy must not yield to the refusal of the S/N laks8FWMH0yabxs8nDvz/w Claimant or those taking the same stance of the vaccination drive . [35] Private or sectional interests which are inconsistent with the larger and greater interest of the nation or public must give way to the latter and this Court can find no better explanation for this noble idea or principle than what was already etched in the great civilization of the past as embossed in the Roman Twelve Tables – “Salus Populi Est Suprema Lex” ( regard for the welfare of the public is the highest law) and so well and fittingly articulated by his lordship Justice Eusoffe Abdoolcader J in the case of Merdeka University Bhd. V Government of Malaysia (1981) CLJ Rep 191/ (1981) CLJ 175 145 :- “Private or sectional interests inconsonant with the larger and broader interests of the nation or the public must yield to the latter, a principle illustrated by such authorities as Pathumma & Ors. V. State of Kerala [1978] SC 771, 774 (at p. 774) and in the restatement in the recent spate of cases in England on public interest immunity as to which I need only refer to D. v. National Society for the Prevention of Cruelty to Children [1978] AC 171 and Burmah Oil Co. Ltd. V. Governor and Company of the Bank of England & Anor. [1980] AC 1090 and also reflected in the injunction at the conclusion of the S/N laks8FWMH0yabxs8nDvz/w Roman Twelve Tables, salus populi est suprema lex – regard for the public welfare is the highest law.”

In Mazuna Begum case, the employee was dismissed for failing to vaccinate in accordance with a COVID-19 immunisation policy. She asserted that the employer’s conduct in dismissing her due to her refusal to take the vaccine was a form of discrimination. The Industrial Court held that the employee’s assertion of discrimination is without any merit as the immunization policy was made mandatory for all Malaysian Aviation Group employees.

The court of the opinion that the Plaintiff’s placement under unpaid leave is justified as the Plaintiff unable to enter the premises of KPJ Sentosa KL to perform her function as an employee of the First Defendant when she opted to remain unvaccinated but failed to give reasonable reason or any exemption on medical grounds. Since Plaintiff job scope is people-facing and Plaintiff cannot do her job, she is not entitled for salary. This is because, non-performance of an employee’s contractual obligations warrants non-payment of their salary under the ‘no work no pay’ principle.

The Court agree that by failing to comply with the Vaccination Policy/Entry Requirement which was lawfully implemented in line S/N laks8FWMH0yabxs8nDvz/w with her terms and conditions of employment, the Plaintiff had rendered herself incapable of performing work on the premises of KPJ Sentosa KL. She was therefore no longer entitled to remuneration. The Defendants were therefore justified in taking administrative action to place her on unpaid leave following her failure to perform her duties as an employee.

The Court also agree that the Plaintiff's placement on suspension and issuance of the notice of domestic inquiry does not amount to a breach of contract. This is because the Plaintiff turned up to work and enter the KPJ Sentosa KL despite of the fact that she is not suppose to enter the said premises without proof of vaccinations.

The Plaintiff has been warned and explained about the vaccination policy/entry requirement but she refused to follow the instruction. Therefore, the disciplinary action and domestic inquiry is part of the normal procedure taken by the Defendants as employer to their employee.

The Plaintiff’s pleaded case is that Defendants have “persistently bullied, irritated, harassed, and intimidated the Plaintiff into taking the COVID-19 vaccine against her free will”, and that the First Defendant failed to observe its Zero Tolerance Policy dated 2.4.2021, which is S/N laks8FWMH0yabxs8nDvz/w “aimed at avoiding verbal and physical harassment including emotional and psychological harassment and in keeping with the policy for avoiding all forms of discrimination.

The Court agree that the Vaccination Policy/Entry Requirement was implemented throughout the Second Defendant and all its subsidiaries. The Plaintiff was never singled out in the Defendants’ enforcement of the Vaccination Policy/Entry Requirement. Plaintiff not the only targeted person in implementing the Vaccination Policy/Entry Requirement by the Defendants. Plaintiff was exempted by the Defendant when the Plaintiff is reported that she suffered Chikungunya.

The Defendant’s maintain on a consultative approach to encourage the Plaintiff to take the COVID-19 vaccination, to understand her reasons for not choosing to be vaccinated against COVID-19 and encourage her to act in line with the Vaccination Policy / Entry Requirements.

The Court found no harassment, intimidation and discriminatory on part of Defendants when dealing with the Plaintiff’s refusal to be vaccinated. S/N laks8FWMH0yabxs8nDvz/w

The Court agree with the Defendants submission that the Plaintiff’s case is academic. This is because the Vaccination Policy/ Entry Requirement was cancelled, and ceased to be in effect since 12.5.2022 and she was instructed to return to work effective 12.5.2022. This is due to the national policy of the COVID-19 also been withdraw. People can move around and no more restriction for those who not vaccinated to enter into public premises.

The domestic inquiry was done and Plaintiff was given the final warning. Plaintiff was paid all her salary and the period of her unpaid leave is only short i.e. from 5.5.2022-12.5.2022. There calculation of the Plaintiff salary after the taking account her medical leave and hospitalization together with overpaid payment was been informed to the Plaintiff by the Defendants via letter dated 4.8.2022 and the Plaintiff submit no argument on that.

Plaintiff can work as usual but Plaintiff failed to report on duty on the date required by the Defendant. Plaintiff claimed that she was purportedly forced to resign but that matter is the industrial Court matter and not before this Court.

As far as the vaccination policy/entry requirement are concern, is no more an issue since the policy has been cancelled and Plaintiff S/N laks8FWMH0yabxs8nDvz/w only been given a warning, compared to other disciplinary punishment that can be imposed on her. To Court, that warning is the light punishment due to the unprecedent situation of COVID-

19.

Issue 3 The Plaintiff has sought the following forms of relief: a) Declaratory relief; b) General damages to be assessed by this Court; and c) Aggravated and/or exemplary damages to be assessed by this Court.

Declaratory relief is discretionary in nature and is to be granted only when reasonable and necessary. In the case of Goh Joon v Kerajaan Negeri Johor & Ors [1999] 5 CLJ 335, the High Court outlined the following principles relating to the refusal of declaratory relief: “The court is empowered to refuse relief in a variety of cases, for instance:

When there is no substantial injury to the plaintiff (Chhakouri v. Secretary of State, 5 Pat LJ 66; 52 IC 990); or S/N laks8FWMH0yabxs8nDvz/w

(vi) In anticipation of a contingency which may not arise at all (Faryad Fatima v. Mujahid Abhas AIR 1934 All 1064); or

Where the defendant has not denied the plaintiff’s claim (Pichai v. Devaji AIR 1957 Mad. 21); or

When the declaration may not be productive of any benefit to the party obtaining it (Rajeshwar Singh v. Shyam Behari Singh AIR 1927 Pat. 286); or

To declare a mere truism in law (Narendra v. Basudeo 14 IC 81); or

To declare the disability of the defendant to do an act when the same is similarly refused to be restrained by an injunction (Lankapur Tea Co v. Gopalpur Tea Co ILR 63 Cal. 1008); or

Where the declaration will be infructuous or useless (Biswanath v. Mytaba AIR 1941 Oudh 422; and Ismail v. Patna Municipality AIR 1943 Pat 34 ); or

Where the declaration could be rendered nugatory by the defendant (Narain v. Sastri ILR 37 All 313).” S/N laks8FWMH0yabxs8nDvz/w

In this case, the Vaccinations Policy/Entry Requirement is no longer an issue. At the same time the Plaintiff can work normally. Whether she wanted to work or not is another issue but vaccinations proof is no longer a pre-requisite requirement to enter her place of work.

In the case Ahmad Saidi Md Isa v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia & Ors [2006] 1 CLJ 977, the appellant challenged, by way of declaratory relief, his restricted residence as being illegal and void on the ground that his arrest and the other action taken against him by the police immediately preceding his restricted residence were unlawful. The Court of Appeal dismissed the appeal, finding that since the restriction order “was at an end” at the time of the appeal, that any views which the Court of Appeal may express regarding the validity or otherwise of the order would be wholly academic: “[2] In a summons taken out before the High Court, the appellant challenged, by way of declaratory relief, his restricted residence at Mukim Dabong, Kuala Krai as being illegal and void on the ground that his arrest and the other action taken against him by the police immediately preceding his restricted residence were unlawful. Summons was dismissed by the learned judge. The appellant then appealed to us. S/N laks8FWMH0yabxs8nDvz/w [3] When the appeal was called on for hearing, learned senior federal counsel for the respondent rose to his feet and very properly informed us that the restriction order made against the appellant was at an end and that the appeal was accordingly academic . Learned counsel for the appellant however argued that if the appeal were to be dismissed out of hand, his client would suffer injury as he was facing charges for having breached the restriction order. All that counsel wanted was some form of protection f or his client that would not deprive him of a defence to the charges framed against him. [4] We were entirely in agreement with learned senior federal counsel that the appeal was indeed academic. The subject matter of the appeal was the correctness of the restrictive residence order made against the appellant and to which he had been subject. That order having come to an end, there was no longer a valid list before us for adjudication. Any views we may express about the validity or otherwise of the order would be wholly academic in the circumstances of this case. It will simply have no effect at all. It will mean that we would act in vain. And it is settled law that a court will not act in vain. Equally is it also settled that the court will not grant academic declarations. See, Re Barnato [1949] Ch S/N laks8FWMH0yabxs8nDvz/w

There is therefore no alternative but to dismiss this appeal.”

As regard to the damages to be assessed by the Court, the Court of the opinion that since Plaintiff failed to proof that Defendants did breach any law either the constitution, statutory duties or any other laws such as contract or negligence by introducing the Vaccination Policy/Entry Requirement. At the same time, the Plaintiff failed to proof that she suffered some damages. What ever happen to the Plaintiff, the Court in the opinion that it is self-inflicted.

The Plaintiff overriding with the vaccination policy to certain extend failed to have a good evaluation of the choices that she has. It is true that the three options that been given to her at the material time is not the best option but it not means that she has no other options unless get vaccinated. Since the Covid-19 situation is unprecedent situation, the whole vaccination policy in this case took place less than one year.

It is true a stressful situation, but the Plaintiff failed to bring any medical report to support her medical condition regarding the anxiety and/or depression. At the same time the Court take judicial notice that most of the people are stressful during COVID-19 but it S/N laks8FWMH0yabxs8nDvz/w not warrants for certain damages to be given without proper evidence and documentation.

Plaintiff also claim for the exemplary damages and also aggravated damages. The Court rejected the claim for exemplary damages as the Plaintiff failed the test under Rookes v Barnard.

For the Plaintiff to be entitled to exemplary damages, she must show that her claim falls within one of the three narrow categories in Rookes v Barnard [1964] AC 1129, HL161 (“Rookes v Barnard”) [cited with approval by the Federal Court in Tenaga Nasional Bhd v Evergrowth Aquaculture Sdn Bhd and other appeals [2021] 9 CLJ 179; and Koperal Zainal bin Mohd Ali & Ors v Selvi a/p Narayan & Anor [2021] 6 CLJ 157]. They are: a) Oppressive, arbitrary or unconstitutional action by a servant of the government; b) Where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff; or c) Where exemplary damages are expressly authorized by statute. S/N laks8FWMH0yabxs8nDvz/w

The nature of the case not fall within all these categories. Therefore, the Plaintiff is not entitled for a claim for exemplary damages.

Plaintiff also not entitled for aggravated damages. In order to claim for aggravated damages, the conduct in question must be high-handed, oppressive, insulting, or contumelious behavior by a defendant which increases the mental pain and suffering caused to a plaintiff [see Kerajaan Malaysia v Ambiga Sreenevasan & Ors [2016] 8 CLJ 330 (COA); Westford Limited v Archipelago Insurance Limited [2023] CLJU 2517].

There are two elements relevant to the availability of an award for aggravated damages: firstly, exceptional, or contumelious conduct or motive on the part of the Defendants in committing the wrong; secondly, intangible loss suffered as a result by the Plaintiff, that is injury to feelings or personality [see Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 [2023] 1 CLJ 564].

The Court agree with the Defendants’ contention that there is nothing exceptional about the actions of the Defendants in this instance which warrants an award of aggravated damages. There is no evidence of offensive conduct or arrogance, or insolence of S/N laks8FWMH0yabxs8nDvz/w motive, or that the Defendants were motivated by malevolence or spite, or that the Defendants’ acts were calculated to injure the feelings and dignity of the Plaintiff.

CONCLUSIONS Plaintiff claim that Vaccination Policy/Entry Requirement so called force the Plaintiff to take COVID-19 vaccine although it not mandatory by the Government. Plaintiff want to work as usual as per normal days. COVID-19 pandemic is unprecedented global event. What ever measure taken by the parties should be scrutinized based on the local and current situation.

The vaccination policy/entry requirement is a reasonable during that time looking to the both parties’ position as a health care provider. The balance needs to be stuck in order to maintain the safety of all. If the Plaintiff is permitted to enter the hospital and work without proof of vaccination, how about other people who take the vaccination? To have a vaccine and non-vaccine people working together at the material time also is not a good strategy. Vaccine is not an absolute protection that one will not get COVID- 19 but vaccine is some sort of measurement during that time. When the Plaintiff’s choose not to be vaccinated, then she also should bear with the effect and its consequences. S/N laks8FWMH0yabxs8nDvz/w

Based on the reasons stated above, the Court allowed dismissed Plaintiff’s claim with cost RM 10,000 given to the Defendants. Dated: 5th August 2025 Wan Nor Aklima binti Wan Salleh Session Court Judge Civil Court 4 Kuala Lumpur Wilayah Persekutuan Kuala Lumpur Solicitor for the Plaintiff : Chanravathane a/p S. Ponnudurai Together with Mr. Amarjeet Singh Messrs SP Chanra Solicitor for the Defendants : Mr Amardeep Singh Toor together with Miss Roseveen Kaur Tyndall Messrs Lee Hishammuddin Allen & Gledhill S/N laks8FWMH0yabxs8nDvz/w