Posted: December 28th, 2021

Mental disorders or mental retardation in law

A law on mental disorders or mental retardation
INTRODUCTION
The issue of dismissal, whether with “just cause” or “without just cause,” was still debated and discussed every day. Employers and employees have seen this problem from different angles and perspectives. One of the reasons for dismissal is the employee’s inability to perform his assigned job. Either the employee suffered from a mental disability or a physical disability.
A mental disorder or mental disability [ 1 ] is a psychological pattern or anomaly that may be reflected in behavior and is generally associated with suffering or disability and is not considered part of a normal development in a person’s culture. Mental disorders are generally defined by a combination of behavior , feeling, thinking, and perceiving a person . In the meantime, physical inability / physical disability [ 2 ] is a limitation of a person’s physical functioning, mobility, mobility or endurance. In short, inability can be defined as the lack of physical or mental ability to perform work due to poor health or injury.
In general, a permanent or temporary incapacity for work of an employee may lead to the dismissal of the employment relationship. People with intellectual disabilities influence their behavior and thinking, impair their ability to protect their own interests and, in most cases, influence their decision-making ability. That too is very rare; It can not be denied that people with intellectual disabilities in some cases pose risks to themselves and their environment. This will have negative consequences for people who are often involved, such as the employer, their colleagues and their customers. Physical disabilities that restrict the movement and functioning of the employee affect the performance and quality of work of the employee. This will affect the operation of the company. This is the main reason why the employer must dismiss this group of people in order to safeguard the interests of the company and to ensure the smooth operation of the company.
Whether the employer’s decision to dismiss a worker with a mental or physical disability was appropriate depends on the size and nature of the company and the circumstances and circumstances of the individual.
This paper therefore examines the law applicable to dismissal, in particular mental disability dismissal, the procedural requirements prior to the dismissal of the employee in relation to the cases concerned, and the appeals of the employee dismissed as a result of his dismissal.
Discharge due to mental / physical health
Chapter 3: Dismissal for mental / physical health
3.1 Breach of contract
3.2 Principles of dealing with employees with a disease (mental / physical health)
3.3 procedural justice
Contractual frustration is a common legal doctrine that applies to all types of contracts, including employment contracts. It occurs when, without any fault of any party, an unconstitutional situation occurs which fundamentally deviates from the performance of the contract by the previously agreed parties. When a contract is frustrated, the general rule is that the parties are released from their contractual obligation. In Malaysia, there are very few cases where a contract of employment has been declared frustrated and declared over.
There are numerous situations in which the contract can be considered frustrated. For example, the employee may be detained by the authorities and may not come to work as a result of the detention. The second possibility leading to breaches of contract is that the employee needs a license to perform his work and the issuing authority for some reason withdraws / revokes that license [ 3 ] .
Medical problems can also lead to a work contract being thwarted. Justice Newbould emphasized in the case of Duong v. Linamar Corporation [ 4 ] that in the context of employment, breach of contract can occur if the employee is away from work due to illness. There are a number of cases where employees are at risk of losing their jobs due to illness or injury.
In the case of Kumpulan Guthrie Sdn Bhd v KP Sukumari Amana, the learned chairman states the following:
“An employment contract can end in several ways, except for the dismissal of the employee, one of which is the application of the doctrine of frustration.” Frustration “means that there has been such a change in circumstances in which events cause the execution of a contract physically impossible, for example, if the employee’s illness persists or is likely to persist for an extended period of time, and it can not be denied that a long-term illness or inability is frustrating the contract, and hence the disease, which is so lengthy that the employer is unable to achieve the essentials he hoped for.
Long-term disability benefits are a lifeline for a sick worker who is able to receive the salary while resting at home enjoying his medical leave. However, if the medical leave continues for a very long time, the employee is facing the risks for the frustration of the contract being terminated.
The contract frustration was governed by Section 57 (2) of the Law on Contracts of 1950, according to which the law provides:
A contract for an act that becomes impossible after the conclusion of the contract or becomes unlawful as a result of an event that the Promoter could not prevent becomes invalid if the act becomes impossible or unlawful.
Before the dismissal of a worker due to a breach of contract, certain elements or criteria must be examined before the dismissal can be justified as a fair dismissal. This is important in order to avoid that the employer is challenged by the employee before the labor court.
Examination of the contractual conditions
whether the contract contains any provisions providing that the employment contract be terminated in the event that the employee is absent due to illness, be it a mental illness or a physical illness.
What happens when the entire medical vacation is exhausted? Can the employer cancel his employee immediately after having taken all his sick days?
Long against Eagle Airways [ 5 ] : Although the complainant’s terms of employment required her to pay a generous sickness benefit, this did not mean that the employer continued to have to employ a pilot who regularly had to take her sick leave.
Taylor v. Air New Zealand, the plaintiff’s contractual entitlement to “indefinite sick leave” did not rule out his dismissal due to incapacity to work when it turned out that he would not be able to return to his duties within a reasonable time.
Claimant Kempas Edible Oil was diagnosed with a sleep / anxiety disorder in 2000. The Claimant was diagnosed with narcolepsy dysthymia in August 2001. In spite of the medical treatment received by the Claimant, the Claimant’s medical condition continued to deteriorate to the extent that the Company then sought to assess whether the Claimant could be medically excluded under the terms of the insurance policy taken out by the Company for the benefit of all executive employees. However, Law Assignment: I need help writing a research paper. the insurers had rejected the company’s request to exclude the Claimant for medical reasons for two different reasons. In 2002, the Claimant had paid medical leave for 87 days. In 2003, the Claimant did not come to work at all. The Claimant was on paid medical leave from 1 October 2002 until his release on 11 September 2003. Due to the fact that the Claimant was unable to carry out his or her work due to his or her medical condition, the Company was terminating his employment for medical reasons.
The Labor Court concluded that the contract was frustrated because the Claimant was no longer able to perform his duties due to his illness. Finally, the above factors should be taken into account by employers before making a final decision on the continued employment of a long-term sick worker.
The employer’s need for the work to be performed by the employee / the type of employment / the urgency of the work
Whether the employee holds the key position because the key employee was absent for a long time affects the operation of the company.
Hoskin v. Coastal Fish Supplies [ 6 ] The employee in question was the manager of a business and unable to work for a long time. The Arbitral Tribunal considered that in this case the employer was entitled to dismiss the employee and appoint a permanent substitute . The Court considered that it was unreasonable to expect the employer to hire a temporary store manager to cover the absence of the employee.
Wilson v. Johnathon’s Catering confirmed to the court the Tribunal’s decision that the dismissal of the appellant’s inability to enter into a food service contract was justified. The tribunal had acknowledged that it was not possible for the employer to waive a supervisor for the intended absence of the complainant, and it was not practicable to hire a temporary assistant for the role of the complainant or to cover her work in any other way.
The nature of the disease, its duration and the likelihood that the disease will recur
How long the disease has been going on and what are the prospects for recovery.
Will the employer have to wait any longer for the worker to recover?
Gopalakrishnan Vasu Pillai v Goodyear Malaysia Berhad [ 7 ] , the case where employees who have a long-term illness with little chance of recovery. The Claimant, who was a Master Technician, suffered from a recurrent injury to his right knee. After numerous medical examinations , the doctors recommended that the Claimant be given light assignments. However, the company was unable to comply with the Claimant’s application because it was a heavy machine. While accepting that the Claimant was an excellent worker, the Company dropped out of the company due to the knee injury and the long duration of the medical leave taken. However, the Claimant alleged that his dismissal was unfair, as he had not been offered or recommended alternative employment in the company.
When awarding an award in favor of the company, the Labor Court referred to Spencer’s English authority against Paragon Wallpapers Ltd2, which stated:
In the case of illnesses, it must always be clarified whether and for how long under all circumstances a longer waiting period of the employer is to be expected.
The nature of the illness, the likely duration of the ongoing absence, the need for employers to do the work that the employee was assigned to do are also the relevant factors that Phillips J set in Spencer’s case.
When the labor court in Goodyear, Malaysia, Berhad came to the conclusion that the dismissal was justified , it dealt with the following questions:
Has the medical report found that the Claimant is recovering and returning to normal?
the number of days the Claimant has been on medical leave; and
Has society foreseen that the Claimant will have to take many more days off, which inevitably affects the productivity and profit of the Company?
The Labor Court in Goodyear Malaysia Berhad also acknowledged the fact that the company like any other company was incorporated in terms of profits for business and was not a non-profit organization or a welfare to home.
Innes-Smith v. Wood [ 8 ] : A good reason [to be laid off for incapacity to work] is usually a combination of the worker’s absence up to now and the future prospects of returning to work. In practice, in most cases it is virtually impossible for an employer to carry out the balancing act that he requires in a fair and reasonable manner, unless he considers when the employee is likely to return to work.
The time of employment in the past
PROCEDURE FAIRNESS
Notice to he employees of the possibility of dismissal
Reasonable effort to determine the true medical position
Communication and consultation with the employee
Alternative work
Whether the employer is required to offer alternative work to the employee
Whether a change of function and status of the workplace equals a breach of contract, which then constitutes a reason for a de facto termination
Was the decision justified ?

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