Presentation Managingabsences 29082023

How to Proactively
Manage Employee
Absenteeism
A Half Day Public Training Program

On 29th August 2023
Via Microsoft Teams
(Remote Online Training)
Shawn Sher
Chief Executive Officer

LS Human Capital Sdn Bhd
We Guide Organisations across South East Asia on how best to

manage their employee relations in compliance with
employment law requirements and how to implement employee
performance improvement initiatives.
AGENDA
9 am to 11 am
Best Practices for Managing Staff Absences
➢ Common misconceptions about managing absenteeism
➢ What the law actually requires the organisation to do when dealing with a staff absenteeism issue
➢ How to manage high staff absences during the probation period (clauses to consider inserting into the
employment contract)
➢ How to manage situations where staff ask to ‘work from home’ as they are unfit to physically report to
work at the office
➢ Developing a policy for managing ad-hoc declared public holidays by the state and/or federal
government (what employers can do).
11.15 am to 1 pm
Best Practices for Managing Staff Absences (continued)
➢ Dealing with emergency leave issues
➢ Can you set an attendance related KPI for staff taking regular medical/emergency leave?
➢ Managing prolonged illness (due to physical health and mental health)
➢ Finding the right balance in being sensitive to an employee’s medical condition while protecting the
organisation’s right to productivity/performance.
➢ Best practices when negotiating an employee’s medical board out.
• NOTE: Case studies, sample document formats and court awards will be used as supporting tools
throughout the session in ensuring the goals of this session are met.
…………………………….
Mohammad Fauzi Hassan
v
Motoria Sdn Bhd
[Industrial Court Award No. 613 of 2023]
Overview
This update addresses the following question:
“What is the threshold level for proving that an employee's continued absence (due to medical
leave) and tardiness amounted to demonstrating the ‘employee's unwillingness’ to perform his
duties as an employee'?"
In our feature case, the claimant served as a foreman with the respondent company, a car dealer.
According to the claimant, in 2016, he was diagnosed as suffering from thyroid which caused him to
undergo continuous treatment. His condition deteriorated and he suddenly collapsed after losing
consciousness at home. This led to him being warded in the hospital besides having to undergo
medical treatments, causing him to fully utilise his medical and annual leave entitlement.
The claimant contended that the company could not tolerate his continued medical and annual
leaves and demanded that he resign. He was further told that if he refused to resign voluntarily, the
company would find a reason to terminate him. When he refused to resign, the company went on a fault-
finding exercise against him and issued him with a series of warning letters as a prelude to dismissing him
on the grounds of poor performance, absenteeism and abuse of leave. The claimant was finally dismissed
by the company, without any domestic inquiry, on the grounds of not being able to meet the performance
standards requirement, refusing to accept jobs and misdiagnosing cases.
The company however argued that even before 2016, i.e. before he was diagnosed with having thyroid,
the claimant had a very poor attendance record where he was continuously warned and counselled in a
bid to get him to improve his attendance and tardiness. The claimant however did not take heed of the
numerous discussions, advice and warnings and despite being given a notice of first warning, continued
with his attendance issued thru 2020. The company further contended that the claimant did not provide
supporting documents or letters from the doctor to indicate his current health condition and treatment
plans and despite undergoing a plan for improvement ('PIP') to improve his tardiness, the claimant still did
not improve. Finally, the company maintained that despite all the support provided to the claimant, he
was still unable to improve and the company, under such circumstances, could not keep him in its
employment.
What the Industrial Court Held

The Industrial Court held in favour of the company, finding that it was justified in dismissing the claimant
over his attendance and performance issues. In coming to this conclusion, the court first addressed the
issue of whether the company was justified in dismissing the claimant over his persistent late-coming
wherein it said:
Quotation/Citation One
“In the case of Yee Lee Corporation Bhd v. Mallika Paul [1995] 1 ILR 432, the Industrial Court held as follows: ...
‘Lateness is absence without leave for the period between the time the employee is required to arrive and the time he
actually does arrive, and as a species of unauthorised absence, it too, is misconduct. It is no excuse that though she
was late she had always accomplished her work on time. It is the court's view that the company has the right to
demand the claimant to be present at the starting time in the morning. It is irrelevant that the claimant was late to
work only a few minutes. It is still misconduct, especially when she had been warned to be punctual. The misconduct
aggravates when the lateness is persistent. ...
In order to achieve smooth and efficient working, the company has the right to require the employees to come to work
punctually and that it also has the right to take disciplinary action amounting to dismissal in order to ensure that these
requirements are fulfilled.’
Similarly, in the present case, the claimant takes the stand that it was his right to be late for work. The company had
placed him under the PIP on 14 October 2016 to enable him to improve on his tardiness but he failed to take such
opportunity and continued to defy the management's instructions.
As such, applying Yee Lee Corporation Bhd, this court is satisfied and finds that the claimant had committed
misconduct when he was absence without leave for the period between the time he was required to arrive at his work
place and the time he actually does arrive, especially when he had been warned by the company to be punctual. The
claimant's misconduct aggravates when his lateness was persistent.”
The court also addressed the issue of the claimant’s performance issues wherein it said:
Quotation/Citation Two
“In 'The Modern Law of Employment' at p. 446, G H I Fridman puts the matter this way:
The relation of master and servant implies necessarily that the servant shall be in a position to perform his
duty duly and faithfully, and if by his own act he prevents himself from doing so, the master may dismiss
him. There are thus two aspects of the employee's duty under a contract of employment. He must provide
a satisfactory performance of the work he has contracted to do; and he must act faithfully and in
accordance with the interest of his employer....
Similarly, in this case, the relation of master and servant between the company and the claimant implies
necessarily that the latter should be in a position to perform his duty duly and faithfully, and if by his own
act he prevents himself from doing so, the former may dismiss him.
As such, this court is satisfied and finds that the claimant had committed misconducts when he
misdiagnosed the cars during four separate instances and was thus putting the company's business at risk.
As this court finds that the evidence of COW1 was more probable than the claimant's, that the latter did
not reply to the letter of third warning, this court is satisfied that the above mentioned misconducts are not
denied by the claimant. It follows therefore that as the claimant had conducted himself in a way
inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate
dismissal by the company.”
Finally, the court also deliberated on the important issue of the claimant’s repeated medical and
emergency leaves wherein it said:
Quotation/Citation Three
“In Award No. 212 of 1981 (Industrial Court of Malaysia Case No. 185 of 1980), the claimant was charged
for taking excessive medical leave from various clinics which indicated his unwillingness to perform the
duty that he was required to perform under the contract of employment. The union contended that the
claimant's dismissal was unjustified and against the principles of natural justice. The court found the
dismissal was fair and for just cause. It observed that the union throughout took the unwavering stand that
the claimant was not guilty of any offence as he was on authorised medical leave which if excessive was
nevertheless in no contravention of any regulation or statute. It failed, however, to consider the other
aspect of the charges in that the excessive medical leave was taken by the claimant with the intention of
not performing his duties.
In International Sports Co Ltd v. Thomson [1980] 1 RLR 340, the respondent employee was dismissed for
persistent absenteeism. For the last 18 months of her employment she was absent on average for about
25% of the time and most of her absences were covered by medical certificates. It should be noted that in
this case "persistent absence and lateness beyond agreed levels" was a class 11 offence under the
company's disciplinary procedure. The respondent was dismissed summarily and an Industrial Tribunal
found this dismissal unfair. On appeal, the Employment Appeal Tribunal allowed the appeal and substituted
a fair dismissal. The EAT recognised that the appellant had a code of disciplinary procedure which was
accepted by the respondent's union with regard to the classes of offences. It found that the employee had
an unacceptable level of intermittent absence due to minor ailments, which is a class 11 offence under the
disciplinary procedure.
Similarly, in Rolls-Royce Ltd v. Walpole [1980] 1 RLR 343, the EAR by a majority allowed the appeal of
the company and substituting a finding of fair dismissal against the employee because of his poor
attendance record. During the last three years of his employment his rates of absence were 44%,
55% and 44% and almost all these absences were certified by a doctor to be due to sickness or injury.
...
This court disagrees with the submission of learned counsel for the claimant that the company must
approach the issue of the claimant's health condition with sympathy, understanding and
compassion…
…As such, this court is satisfied and finds that the claimant had committed an employment
misconduct when he took excessive medical/sick leave, emergency leave and unpaid leave for a total
of 58.5 days in 2012, 72.5 days in 2013, 61 days in 2015, 66 days is 2016, 49 days in 2017, 71.5 days
in 2018 and 65.5 days in 2019 which comes to an average of 60 days or two months per year to
avoid work. The claimant, as an employee of the company, was under the duty to attend work and
to discharge his duties diligently as directed by his employer.”
How Your Organisation Can Benefit from This Case
Add ‘Persistent or Intermittent Absence Due to Minor Ailments’ To Your Organisation’s List of Major
Misconducts
The Industrial Court here clarified that although an employee may have obtained medical leaves from the
company’s appointed panel doctors, the company could nevertheless discipline and even dismiss him on the
grounds that:
i) His regular absences amounted to persistent/intermittent absences over minor ailments, and
ii) Consequently, they indicated an unwillingness on the employee’s part to perform his duties as an
employee of that organisation.
Given this development, it is suggested that organisations consider adding this item into its list of misconducts
and collective agreements (where applicable) in giving it more flexibility when it comes to disciplining
employees who take persistent/regular medical, emergency and/or unpaid leave.
Persistent Tardiness Is a Valid Ground for Dismissal

The Industrial Court also clarified here that where an employee is regularly late for work despite being
counselled and warned, dismissal is a justifiable cause of action that an employer can initiate.
However, in justifying any dismissal over tardiness, it is important the pre-discipline steps in the form of
reminders and cautions first be initiated by the employee’s superior before HR can intervene with any serious
punishment action.
Sathiaseelan Nagappan
v
Ketua Pengarah, Pertubuhan Keselamatan Sosial
[Court of Appeal Civil Appeal No: A-01(A)-412-07-2021]
Overview
“Where an employee journey's back from his hometown on a Sunday (to be able to work on a
Monday) and meets with an accident resulting in injury, would such injury qualify as an
'employment injury' entitling him to be compensated/covered under SOCSO?"
In our feature case, the appellant (claimant) was travelling from his house in Ipoh, Perak to Kulim,
Kedah on a Sunday evening to rest for the night in his place of stay in Kulim and proceed to work in
Kulim. It was his practice every weekend to go home to Ipoh, where his place of residence was, to
be with his family for the weekend. On that fateful day, the appellant met with an accident. He
claimed from the respondent (SOCSO) for temporary disability benefits under a compulsory fault-
free insurance scheme for employment injuries suffered in the course of an employee's work as in
arising out of or in the course of his employment.
The respondent however refused payment on the ground that the injury sustained was not an
'employment injury', pursuant to Section 2(6) together with Section 24(1)(a), (b), or (c) and Section
24(2) of the Employees Social Security Act (ESSA).
Dissatisfied with the respondent's decision, the appellant applied to the Social Security Appellate
Board ('Appellate Board') but the Appellate Board agreed with the respondent and dismissed the
appeal. The appellant then took up the matter to the High Court wherein the High Court set aside
the decision of the Appellate Board and directed for the matter to be reheard before a different
panel. The Appellate Board again dismissed the appeal and the appellant appealed once again to
the High Court. This time, the High Court dismissed the appeal on the grounds that:
(i) the injuries suffered were not 'employment injuries' as they did not arise out of or in the
course of his employment; and
(ii) Section 24(1)(b) of ESSA did not apply as the journey from his home in Ipoh to Kulim was not
one that was necessary to be performed or undertaken for his work. According to the trial
judge, it would have been different if the injury was sustained while travelling to work and had
been from his house in Kulim to the factory in Kulim where he worked.
This led to the appellant’s appeal of this decision before the present Court of Appeal.
What the Court of Appeal Held
The Court of Appeal held in favour of the appellant, reversing the decision of the High Court. In
coming to its decision, the Court of Appeal addressed the pivotal issue of whether an employee
who sustains an injury while travelling back from his hometown (located in a different state) for
purposes of resuming work the following day would be entitled to temporary disablement
benefits under Employees Social Security Act (ESSA) wherein it said:
“We cannot interpret the law divorce from and independent of the realities of life. The reality of life
is such that wherever one lives, one does not parachute to be at one's place of work at the appointed
time in the morning on a workday. A journey has to be made from one place of residence or stay.
There is nothing preventing one from staying with one's family in one's permanent place of residence
and travelling outstation for work the next day, albeit the journey would be more tiring and perhaps
leave one rather tired upon arrival at work.
Assuming the appellant had taken that journey on a Monday early morning from Ipoh to Kulim
direct to the factory and the accident had happened along that journey, would he not be entitled to
claim from SOCSO? He would certainly be allowed to as that was a journey made from his place of
residence to his place of work in Kulim. Why then should he be disqualified merely because he
started the same journey on Sunday evening to Kulim so that he could rest for the night in Kulim and
then from there make his journey to the factory the next day? Or for that matter what if he had
rested in the rest and recreation area along the North-South Highway for the night to save on
accommodation and continued with the journey direct to the factory the next day in the early hours
of the morning of the Monday?
There are just so many possible permutations in life such that unless the journey made is far remote
and removed from his work and employment, one can safely say that a journey undertaken from
one's place of residence during a weekend to one's place of stay for the weekday in another town to
go to work the next morning, fresh and alert, would ordinarily be a travelling on a journey made for
any reason which is directly connected to his employment such that the deeming provision of s.
24(1)(b) of the ESSA is triggered, deeming the injury caused during such a journey to be an
employment injury.”
The Court of Appeal also delved on the issue of whether injuries sustained while working from
home may be claimable under the ESSA wherein it said:
“ The traditional paradigms of work have now been transformed to a more dynamic concept of
employment and work-related activities where it is not uncommon to check and even draft work-
related emails on the iPad or other electronic device while one is commuting or to communicate with
one's mobile phone via a WhatsApp chat group set up with one's colleagues or superiors and
subordinates. One may even be collaborating on a document shared with other colleagues in iCloud
or Google Drive. In fact, for increasingly many people, their substantial work is done often from
home or remotely from wherever they may be including commuting by road, rail or plane. It would
not be far-fetched if an injury suffered at home is now claimable because of one is working from the
home via technology such as Zoom, Skype or Webex meetings.
Finally, the Court of Appeal deliberated on SOCSO’s contention that if it were to allow the
appellant’s claim, this would open up the floodgates to employment injury claims wherein it said:
“It has been suggested by the respondent SOCSO that to allow the claim would open the floodgates for
employees to make a claim no matter how remote the journey is to the employment of the insured. With
respect, we do not think so. It would be rather strange for those making their way to work with the intention of
arriving near the workplace a night earlier to arrive in the workplace fresh and alert, to be more prone to a
commuting accident along the way. If at all these are people who do not like the idea of having to rush to work
on a Monday morning and are responsible to prepare and get ready for the week's work by getting enough rest
for the Sunday night.
At any rate there are no empirical statistics to show that we would be exposing SOCSO to an avalanche of claim
if the provision of s. 24(1) of the ESSA was to be interpreted more expansively and less restrictively and
narrowly. Even in the unlikely event that there is a spike in the claim, that problem if it should arise, as in
stretching the funds of SOCSO, has to be tackled at a separate level and not in depriving the injured employee
of his compensation and benefit to which he would have a legitimate expectation and claim. It is a fact that
commuting accidents happen even to the most careful of us and sometimes it may not be due to our negligence
but that of some other road users and vehicles. It is something that no one would wish it should happen to
them or to anyone for that matter. Hence the safety net support and succour of a no-fault liability claim under
the SOCSO scheme.
We must commend SOCSO for coming up with its motto, written in its correspondence with contributors, as
being both apt and appropriate, as representing its care and concern for all its insured. Indeed, it resonates
with all, redolent of its compassionate approach to claims: PERKESO itu Prihatin, Prihatin itu PERKESO!"
A More Expansive Definition to What Constitutes an Employment Injury While Travelling to and
from Work
This important decision by our Court of Appeal heralds a new era for SOCSO claims. Our courts now
have essentially directed SOCSO to adopt a more expanded view to how it approaches employment
injury claims related to employees travelling to and from work. An employee just needs to show
that his travel was done in connection with his work related obligations to be eligible for temporary
disablement benefits under the Employee Social Security Act (ESSA).
Work From Home Related Injuries May Be Claimable Under SOCSO

The Court of Appeal also clarified that in line with its more expansive definition to what constitutes
an employment injury, SOCSO should also be prepared for the reality of ‘work from home’ and that
employees may sustain injuries while working remotely or from home. This means that it obliges
SOCSO to adopt a more flexible/expanded approach in when evaluating whether an injury sustained
by an employee falls within an ‘employment injury’.
Yap Hoong Wai
v
Sphere Corporation Sdn Bhd
Overview
“Can a company justifiably dismiss an employee while he is under medical leave on the ground
that his reasons for going on medical leave are suspicious?”
In our feature case, the claimant was employed by the company as its Finance Manager
commencing from 23rd May, 2019 on a monthly salary of RM 16, 000 and was placed on 3 months’
probation. On the 12th of June, 2019, he was called by the director of the company (COWS1) for a
meeting to discuss his poor work performance.
In the said meeting, the Claimant mentioned that he was feeling dizzy with a headache and needed
to consult a doctor. He then left the company premises and instead of going to the company’s panel
clinic (located nearby) drove some 41 kilometres to Pusat Perubatan Universiti Malaya Emergency &
Trauma ('PPUM') to seek medical attention. He snapped a picture of his location and shared it with
his superior but did not get any medical attention there as he alleged that the que was too long. He
then drove home (which was located a further 15 kilometres away). Upon reaching home, the
claimant contended that he fainted and his wife then drove him to Prince Court Medical Hospital.
The claimant then contended that he was hospitalised for two days at Prince Court and further
given hospitalization leave from 12th of June, 2019 till 12th of July, 2019. The alleged medical
certificate that he obtained was also then forwarded by the claimant to the company via WhatsApp.
The company however found the circumstances surrounding the claimant’s alleged medical leave
suspicious and proceeded to remove him for the company’s WhatsApp chat group before dismissing
him. It also contended that the claimant had in fact already earlier verbally resigned in the meeting
with the company director on the 12th of June, 2019.

The Industrial Court held in favour of the company, finding that it was justified in dismissing the
claimant. In coming to this conclusion, the court first addressed the issue of whether the claimant’s
medical issues and subsequent medical leaves were genuine in nature wherein it said:
“ The fourth issue is why the Claimant did not seek first medical attention at the Panel clinic and
went to other medical institution. [37] While claiming all these medical issue, the Claimant did not
rush himself to the nearest panel clinic which is 15 minutes away from the office. The Claimant
testified that he did not choose to go to Klinik Ho because according to the Claimant the clinic is
located at the main road and it's difficult to get parking spot. Furthermore he was not sure if the
clinic is well equipped to treat his sickness, therefore he opted to go to PPUM for a medical
treatment. Finally, he shared his status in PPUM Trauma and Emergency in the Company WhatsApp
group chat at 11.32am. The Claimant even updated COWS1 that PPUM might have room for
admission in the evening. Since the Claimant have to wait too long, the Claimant proceed to drive
home.
Although the Claimant's location was shared in the group, however no evidence as to the
consultation have been adduced. Neither a medical report nor prescriptions were submitted for
evidence in court by the Claimant. The Claimant claimed that the PPUM asked him to sign the
discharge note in order to release him from the Hospital, for the reason that the Hospital will not be
held responsible in the event anything happened to him (if he collapsed). This statement of the
Claimant here indicates that he was having some sort of a severe heart condition. If the facts were
true as alleged by the claimant that he was having a severe heart condition, common sense dictates
that he should admit himself immediately, on the facts it shows that he went home.
Any reasonable person in this situation, would have sought medical attention as soon as possible
which the Claimant failed to do. Pertaining the issue of sharing the status of PPUM in the Company
WhatsApp chat group does not in any way indicate that the Claimant has sought medical attention
in PPUM. Anybody who pass by the PPUM can share the location of PPUM. Sharing status or
location does not in any way prove that the Claimant has been consulted by a doctor. The Claimant's
testimony are even more unconvincing when it was unsupported by any evidence of note of
discharge, receipts or any kind of medical report.”
“As per para 14 of the Claimant's submission, the Company was in fact in suspicious of the
Claimant's hospitalization leave. Claimant informed the Company on the 14.6.2019, whereby the
Claimant claimed to have been admitted in hospital for 2 days from 12.6.2019 till 14.6.2019. The
Claimant went missing for this 2 days, the Claimant neither produced any evidence nor did he
testified to prove that his wife or the sister had contacted the Company for the 2 days the Claimant
was admitted in the hospital.
The Claimant had failed to prove to this Court his whereabouts from 12.6.2019 until 14.6.2019.
According to the Claimant he was hospitalized but no evidence been adduced at all. The Claimant
was cross examined as to the failure to adduce reports or admission slips as evidence by the
Company counsel.
The Claimant's testimony, does not indicate any seriousness in holding on the job. His demeanour
and testimony in court, did not show anything lesser than inconsistency and ingenuity. [62] Based on
the evaluation of the evidence adduced, the Claimant did not grasp the earliest opportunity to
inform the Company of his admission. He left the Company wonder his whereabouts for the 2 days.
From the evidence gathered, credibility of the Claimant is questioned and the Claimant's claim is not
genuine.”
While the court did find that the company was justified in dismissing the claimant, it did however
find fault with the way in which the company handled the claimant’s alleged verbal resignation
wherein it said:
“The method of communication to the Company by the Claimant can be seen in two folds. One is
with regards to the Claimant's verbal resignation in the meeting and second is pertaining the
Company's reply to the Claimant's MC. With regards to the verbal resignation, it is incumbent for the
Company to produce the one and only vital evidence being the minutes of the meeting to prove that
the Claimant had indeed resigned. However when the Court questioned pertaining the minutes of
the meeting at the hearing, the Company's counsel stated that the minutes referred to as CO-1 in the
pleading was the Company's witness statement….
…The second disputed fact is the communication of the MC by the Claimant. The Claimant sent his
MC via WhatsApp to COWS1 on 14.6.2019, No doubt that COWS1 had communicated to the
Claimant via WhatsApp on the very next day i.e., 15.6.2019, however since COWS1 acted in the
capacity of a Director of the Company, it is expected the representative of the Company to show
more professionalism. WhatsApp may be a mode of convenient and speedy way of communication
to update certain matters and exchange views. However when it comes to making a serious decision
which would alter the position of an employee, using WhatsApp as a mode of communication is just
inadequate and unprofessional. [34] The Company admitted in their submission, that the Finance
Manager's position carries more heavier responsibility than any other employee in the Company.
Therefore, the Company should have been more professional in handling this issue resignation what
more when it is not in the form of writing.”
An Organisation Has The Right to Question the Validity of an Employee’s Medical Leave
The Industrial Court here clarified that while an employee may have been issued with a medical
certificate from a registered medical practitioner (i.e. a qualified medical doctor), an organisation
still has the right to query the context and circumstances behind the employee’s medical leave.
Here, the court found that the claimant’s behaviour where he:
i) Drove some 41 kilometres to go to a hospital instead of the company’s panel clinic located
nearby,
ii) Subsequently left the hospital without seeking medical treatment/attention, and
iii) Finally went to see an orthopaedic specialist instead of a heart specialist at Prince Court
Medical Centre,
was indeed suspicious and indicated some element of deception from the claimant.
Ensure Your Terms of Medical Coverage For Staff Are Clearly Stipulated
The company here had in its terms and conditions also stated that employees under probation would not be entitled
to any medical leave for the first 30 days of their employment, not entitled to any medical coverage for specific
injuries/illnesses for the first 120 days of service and not entitled to any medical coverage for the first 12 months of
service for pre-existing illnesses. This meant that the claimant’s medical claims were not reimbursable as he had only
been with the company for 21 days when he went to seek medical treatment.
Given the increasing cost of employee medical leave/coverage being faced by employers today, having such a policy
may well be considered by organisations particularly where it comes to employee who are still under probation
and/or have not attained more than one year’s service with the company.
Ensure A More Formal Means of Communicating An Employee’s Resignation

While finding that the company was justified in dismissing the claimant due to the suspicious nature of his medical
leaves, the court nevertheless found fault with the company’s manner in which it handled the issue of the claimant’s
alleged resignation. The court here found that the company should have adopted a more formal means (instead of
WhatsApp) of handling the claimant’s alleged resignation where it should have communicated the claimant’s alleged
resignation at least via e-mail, a formal company letterhead or have the minutes of the meeting accurately reflect the
claimant’s resignation.
Given this, it is important that organisation’s ensure issues relating to employee’s verbal resignations be formally
documented as opposed to simply relying on WhatsApp chats.
Zanariah Hashim @ Taib
v
Malaysia Association of Tour and Travel Agents (MATTA)
Overview
“Is a company justified in terminating an employee's services on the basis that she had
abandoned her employment when she refused to physically return to work at the office after
alleging that she was being sexually harassed by her superior?”
In our feature case, the claimant was offered the position of an Administrator of Matta Penang
Chapter Secretariat ("MPSC") on a fixed term contract with the Company where she was required to
report to the Company on the 2nd of March, 2020
Prior to commencing employment with the company, the claimant alleged that she was subjected
to sexual remarks and harassment by the then chairman of the company who interviewed her for
the Administrator position. She also contended that he instructed her to report to him at a
company known as Eco Coach & Tours (M) Sdn Bhd.
The claimant further maintained that prior to her complaints against the chairman to the company,
she received excellent appraisals for her work performance and after commencing employment,
she had to resort to working from home due to the Movement Control Order since 18th of March,
2020 until she was instructed to physically report to work at MPSC's office on the 27th of May,
2020.
When she did not show up, the company deemed her actions as an abandonment of employment
and terminated her services some three weeks later. The claimant maintained that she did not
report to work as the company had not resolved her complaint of sexual harassment. This led to her
present claim for unfair dismissal.

The Industrial Court held in favour of the company, finding that the claimant had in fact abandoned
her employment with the company. In coming to this conclusion, the court first addressed the issue
of whether the claimant had actually been employed by MATTA at the time she alleged she was
being sexually harassed by its chairman wherein it said:
“In this Court's view, it would not have escaped the Claimant's memory to present her salary slip
issued by the Company for the month of February 2020 if she has worked for V. Mathews under the
Company's instruction. Due to the absence of such supporting evidence or explanations from the
Claimant, the Court is not convinced that the Company has any legal nexus with the Claimant when
she worked at ECTSB prior to 02.03.2020. When giving her evidence in Court, the Claimant did not
adduce any evidence to prove that it was the Company who had instructed her to work for V.
Mathews or ECTSB or to report to V. Mathews prior to the commencement of her employment with
the Company on 02.03.2020.
In addition to the above reasoning, the following questions asked by the learned counsel for the
Claimant seem to have vindicated the Company against the complaints raised by the Claimant
considering the manner in which COW1 was asked:
Q: Do you agree before the offer letter by MATTA to the Claimant was given to the Claimant, she was
already working at Mr. V. Mathew's company called Eco-Coach & Tours Sdn Bhd?
A: I was not aware
Q: Do you agree the Mr. V. Mathews is the proprietor of Eco Coach & Tours Sdn Bhd?
A: Yes, he is one of the directors.
Q: Do you agree that the alleged abuses occurred at Eco Couch & Tours Sdn Bhd? A: I was not
aware."
Based on all the above evidence, this Court is convinced that the Claimant was not working with the
Company between the dates 17.02.2020 till 29.02.2020 when she alleged that she had been abused
and sexually harassed by V. Mathews.”
Following this, the court then went on to address the issue of whether the company was justified in
terminating the claimant’s services on the basis of abandonment of employment wherein it said:
“ Whilst the Claimant denied that she was absent from 27.05.2020 till 19.06.2020, from the
documentary and the oral evidence of the Company's witness, it is proven that the Claimant has
been absent and did not return to work until her contract of service was terminated. The evidence of
her absenteeism given by COW 1 was not challenged or rebutted by the Claimant. The Company had
proven on balance of probabilities that the Claimant had been absent during that period and so had
abandoned her employment. This Court is satisfied that based on the reason relied given the
Company for the Claimant's termination, that reason has been proven.
The Claimant submitted that when the Claimant did not accede to the Company's request to not
report on the alleged sexual harassment committed by Vergis Mathews to the authorities, the
Company in retaliation issued the letter dated 19.06.2022 to terminate the Claimant's services and
by such conduct of the Company, the Claimant submitted that her dismissal was done in bad faith as
it was not raised before the report was lodged.
The Company on the other hand, denied that the Claimant's dismissal was the repercussion of the
Company's retaliation over the sexual harassment complaints lodged by the Claimant and gave the
following reasons:
i. that issues of the Claimant's performance was raised in an emergency meeting held on
30.04.2020 even before the letter dated 19.06.2020 was issued to the Claimant;
ii. that the very first time the Claimant had raised the complaints alleging sexual harassment and
justifying her performance was in an email dated 04.05.2020;
iii. that by letter dated 22.05.2020, the Company notified the Claimant that she would be on a
two(2) months review period whereby she is expected to improve on her performance and in
the same letter, the Claimant was asked to report back to work on 27.05.2020 of which such
instruction by the Company does not denote act of retaliation;
iv. that the Company in its letter dated 03.06.2020 had indicated that the complaints of
harassment has been taken seriously and intended to hold an inquiry into the allegations. The
Company by intending to hold an inquiry does not denote an act of retaliation;
v. that the Company being lenient in giving the Claimant a one (1) month notice in lieu despite
her abandoning the employment after a period of three (3) weeks from the date the Claimant
was supposed to report to work does not denote retaliation.
Based on all the above reasons submitted by the Company, the Court agree that the termination
letter was not a retaliation to the complaints of sexual harassment made by the Claimant but in fact
a natural response to the Claimant for failing to adhere to basic instructions expected of the
Claimant.”
Importance of Documenting An Employee’s Performance Issues
The Industrial Court here was tasked with the difficult issue of determining which of the two party’s
version of events was true, i.e. was the company retaliating against the claimant for her report of
sexual harassment against her superior, or was the company merely asserting its rights to dismiss a
staff for ignoring its instructions to report to work.
In finding favour with the company’s version of events, the court here found that as the company
had documented evidence of the claimant’s poor performance even before her official complaint of
sexual harassment was raised, its version of events was more believable.
This decision emphasises the importance of documenting an employee’s performance issues at the
earliest opportunity.
A Domestic Inquiry Should Be Conducted When an Allegation of Sexual Harassment Surfaces

Another factor that weighed in the company’s favour was the fact that it had written to the claimant
to inform her that a domestic inquiry would be convened over her allegations of sexual harassment
against her superior. This to the court demonstrated that it was willing to comply with the due
process requirements of the law and consequently the claimant’s actions of refusing to physically
return to work justified her termination on the basis of abandonment of employment.
Mohamad Ali Piah
v
Perusahaan Otomobil Nasional Sdn Bhd
Overview
“Is a company justified in dismissing an employee for obtaining an MC for three consecutive work
days from three different panel clinics (on two occasions)?”
In our feature case, the claimant commenced employment with the company on 17th November,
1994 as an operator and at the time of his dismissal was employed as a production worker in the
Engine and Transmission Department of the company. The events that led to the claimant’s
dismissal started with the issuance of a show cause letter dated 9 July 2014 wherein the claimant
was asked to explain his absence from work without prior approval or bothering to notify his
supervisor as well as his actions of regularly taking medical leaves from non-panel clinics of the
company.
The claimant replied contending that: 1) there were communication issues which had led to a delay
in him informing his supervisor of his absence, 2) there was no credit in his mobile phone and 3) his
child was suffering from Down Syndrome.
The company however found his explanation unacceptable and proceeded to convene a domestic
inquiry over the matter prior to dismissing him.

The Industrial Court held in favour of the company, finding that it was justified in dismissing the
claimant for his frequent absenteeism/MC’s. It accordingly stated the following in support of its
findings:
“The Claimant was not a first offender for absenteeism but it had morphed into a serious problem
that the Company had taken rehabilitative steps to place him on a PIP to assist him to overcome his
absenteeism issues. As part of the PIP, the Claimant was given numerous counselling sessions and
warnings about his conduct. The PIP was for the period from 22 July 2013 until 8 February 2014 with
a total of three official reviews conducted. During all the three reviews, it was found that there was
no improvement whatsoever in the Claimant's attendance. It was found that the Claimant often
reported sick for work on Fridays and Mondays. The Claimant himself admitted under cross-
examination that he was placed on the PIP as he had a poor attendance record and that he had been
given numerous opportunities to improve.”
“Judging from the trend of the medical certificates (MCs) submitted by the Claimant, the Company
had concluded that the Claimant had been seeing different doctors at different locations for the sole
purpose of obtaining an MC, thereby defrauding the Company. From the table in the second charge,
it can be gleaned that the Claimant had gone to three different clinics for three consecutive
weekdays namely on 19 June 2014 (Thursday), 20 June 2014 (Friday) and 23 June 2014 (Monday).
This cycle was then repeated for another three consecutive days falling on 30 June 2014 (Monday), 1
July 2014 (Tuesday) and 2 July 2014 (Wednesday). The Claimant did not dispute the fact that he had
gone to three different clinics for the MCs he had obtained.
From the addresses of the clinics named in the MCs, it appeared that the Claimant had travelled to
different clinics located a considerable distance from his home for the sole purpose of obtaining an
MC of a day each. During cross-examination, the Claimant admitted that it would be in his best
interests to seek treatment at a panel clinic closest to his home. Yet, the Claimant apparently chose
to travel a longer distance to seek treatment in those clinics. The court opines that the Claimant had
failed to offer a reasonable explanation as to why he had gone to such great lengths to secure those
MCs from three different clinics. If he was really sick, he could very well return to the same clinic and
got further treatment for the extended illness…”
A Company Has The Right to Inquire Into The Circumstances Surrounding an Employee’s Medical
Leave
MC shopping is a term used to describe situations where employees abuse their medical leave
entitlement by going to different panel doctors with the hope that it would be easier to obtain the
medical leave. The Industrial Court here clarified that PROTON was justified in dismissing the
claimant here even though these medical leaves were obtained from their panel doctors as the fact
that the claimant travelled far from his home to visit three different panel clinics on consecutive
days (even though there were panel clinics close to his home) clearly indicated an intention to
deceive his employer. Further, the court also asked the question of ‘wouldn’t a person who is sick
want to go back to visit the same doctor for purposes of continuing his treatment?’ in coming to its
conclusion that his MC’s were not for any genuine medical illness.
The Industrial Court Case Between Calberson Helu Zahid Sdn Bhd vs Sabtu Ninggal & Anor
(Industrial Court Case No. 640/2006)
CASE BACKGROUND
• The claimant was employed as a warehouse assistant with the company when he was terminated by
the company on grounds that he was in breach of his contract of service as per Section 15(2) of the
Employment Act which states that ‘an employee shall be deemed to have breached his contract of
service if he has been absent for two consecutive working days without informing or attempting to
inform his employer
• The claimant had been absent on 9 & 10 March as well as 14 & 15 March 2000 and the company
conducted a domestic inquiry that found that he was in breach as per Section 15(2) of the
Employment Act and terminated his services. The claimant contended that he had not breached his
contract of service and his dismissal was therefore unjustified.
• We decided on this case for our latest update as it addresses the classic question asked by many
organisations, i.e. do they apply Section 15(2) of the Employment Act apply on the third or fourth day
of the employee’s absence.
WHAT THE COURT HELD
• The Industrial Court ruled in favour of the claimant stating that the company was wrong to terminate
him for breaching Section 15(2) of the Employment Act. The judge ruled that the employee had only
been absent for two days and therefore did not meet the requirement of ‘more than two consecutive
working days’.
• In relation to whether Section 15(2) can be applied when the employee returns to work on the third
day, the chairman (judge) cited the following:
• “The claimant could not be deemed to have broken his contract of service under Section 15(2) as his
absence on 9-10 March 2000 was not more than two consecutive working days. Likewise, for the
same reason, he could not be deemed in respect of his absence on 14-15 March 2000.”
• The chairman (judge) also found that the employee had no reasonable excuse to offer for his absence.
However, the judge pointed out that despite this, the fact that the company had wrongfully applied
Section 15(2) of the Employment Act in terminating his services, meant that his termination was
unfair. His citation on this matter is listed below:
• “The claimant had no reasonable excuse for his absence from work on 9-10 March 2000 as well as
on 14-15 March 2000. However, since the company had failed to show any breach of contract under
Section 15(2) of the Act, it had in the circumstances dismissed the claimant without just cause or
excuse.”
• The judge awarded the claimant 24 months in back wages but reduced it by 50% on grounds of the
claimant’s contributory conduct.
HOW CAN YOUR ORGANISATION BENEFIT FROM THIS CASE
Recommendation 1
• You can apply Section 15(2) of the Employment Act after the employee has been absent for the third
consecutive working day. If the employee returns to work on the third day, then you cannot apply this
section.
Recommendation 2
• Remember that Section 15(2) gives you the right to terminate an employee’s services provided he is
earning less than RM 1500. For employees earning more than this amount, they typically will not fall
under the Employment Act which means that your company cannot terminate them by applying this
section unless you have specifically stated so in your terms and conditions of employment. Therefore,
to give your organisation the option for terminating all levels of employees who have been absent for
more than two consecutive working days, ensure that you incorporate this following option under
your terms and conditions of employment.
• “An employee who has been absent for more than two consecutive working days without prior leave
from the company and without informing or attempting to inform the company of his absence at the
earliest possible opportunity will be deemed to have breached his contract of service with the
company. Breach of contract entitles the company to terminate the services of the employee without
notice.”
JC FREIGHT & ENTERPRISE
Versus
NGOH LOOI
(Industrial Court Award No. 132 of 2010)
CASE PREVIEW
• In this update, we deal with the issue of ‘ABSENTEEISM’ and specifically answer the questions of
whether:
• An employer is obliged to try to contact the employee who is absent before commencing disciplinary
action,’ and
• The law allows a doctor to issue a backdated MC or medical cert.
• In the featured case, JC Freight & Enterprise employed the claimant (Ngoh Looi) as its Import Officer.
When she felt pain in her eyes somewhere in June 2000, she consulted a doctor who issued her with
an MC thru to the end of June. She was subsequently given MC’s for the whole month of July although
they were backdated.
• On July 19, 2000 (while on MC), the claimant received a warning letter for her absence and when she
reported back to work on August 1, 2010, she was terminated on the ground of ‘absence from work
without leave.’
• She challenged her dismissal, contending that it had been unfair.
43
WHAT THE COURT HELD
• The Industrial Court found in favour of the company, despite holding that the backdated MC’s
issued by the doctor had been genuine and allowable under law. The court here found that
despite it finding the MC’s to be genuine, the burden of proof lay with the claimant to inform the
company of her medical leave. It accordingly cited the following:
• “It is the duty of the claimant to ensure that the management is fully aware of her medical leave
in particular when it is a prolonged medical leave. Accepting that the claimant could be unwell
and not able to communicate personally to her superior that however, does not relieve her of her
fundamental duty as an employee to inform her employer of her illness. She is obliged to inform
her employer within 48 hours or within reasonable time.
44
• There has been no reason given for her failure to only submit the medical certificate on 1 August 2000
after the show cause was issued. This attitude of indifference by the claimant is not excusable. This
court, finds that there was a wilful violation of discipline on the part of the claimant in the
circumstances resulting in her misconduct by her own acts.
• Due to the failure by the claimant to notify her absence on 20 June to 31 July 2000 when she was on
medical leave, this court finds that the claimant can be construed to be in continuous absence without
leave or prior permission from the respondent company, thereby committing a misconduct justifying
her dismissal.”
45
HOW WE CAN BENEFIT FROM THIS CASE
The burden of proof is on the employee to inform the company of his absence
• Managers sometime take the initiative to call up their employees on absence to inquire about
their reasons for not showing up. Companies need to be aware though that once the manager
does this and the employee provides their explanation, the company cannot contend that they
were not informed of the employee’s absence.
• Once your managers contact their absent employees (and are informed of their reasons for
absence), the company loses its right to dismiss the employee on grounds of failing to inform the
company of the reasons for their absence.
46
Modern Technology Places the Organisation at An Advantage Where Absenteeism is Concerned
• In this case, the court quoted from a case involving Cycle & Carriage Bintang Bhd v. Kong Yuen
Hong, wherein the court stated the following in regard to an employee’s obligation to inform the
employer of their absence:
• “With modern technology where communication via telephone, hand phone, fax etc. is easily
accessible, this court finds no excuse for a worker not to be able to inform his employer of his non
attendance for work on account of illness within forty-eight hours from the commencement of his
medical leave. And if he is unable to do so personally, it can certainly be informed through anyone
of his family members or even his friends or colleagues. Claimant had failed to do so in this case.
Therefore, in accordance with s 60F (2) of the same Act, an employee who absents himself on sick
leave without informing his employer of such sick leave within 48 hours of the commencement
thereof shall be deemed to absent himself from work without the permission of his employer and
without reasonable excuse for the days on which he is so absent from work.”
47
Khairul Syahidin Mohamed Ali
v
JST Connectors (Malaysia Sdn Bhd
Overview
“Can an employee be dismissed for failing to achieve an 85% attendance rating?”
In our feature case, the claimant commenced employment with the company in 2007 as a Senior
Technician and had served the company for eight years when he terminated in 2015 over allegations of
absenteeism. The claimant had specifically earlier been given numerous reminders and warnings by the
company over his poor work attendance. He was then following the issuance of a final warning told that
he was to ensure he achieved an attendance rating of 85% for the month of October 2014, failing which he
would be terminated from service.
The claimant subsequently went on sick leave on 1st of October as well as the 27th and 28th of October,
which caused him to fail the 85% rating benchmark. This led to the company convening a domestic inquiry
over this issue which in turn led to his dismissal from service. The claimant duly claimed unfair dismissal
and the key issue before the court was to determine whether the company had justifiably dismissed the
claimant.
The Industrial Court held in favour of the company, holding that the company was justified in dismissing
the claimant. The court stated the following in coming to its finding:
Quotation/Citation 1
“COW2 also testified that the Claimant had also been repeatedly reminded that the Company requires an
85% attendance rate from him and that beginning from the month of September 2014, his annual leave,
sick leave, emergency leave and leave without pay would be taken into account in his overall attendance
rate. COW2 went further to say that the Claimant was also advised only to go to their appointed panel
doctor and that any medical certificate other than from the Company's panel doctor would not be
entertained.
However, despite all the reminders, his poor attendance according to COW2 continued, resulting in the
Company issuing various warning letters to him. COW2 also went on to testify that based on his evidence at
the DI, he was not also truthful. She said the Claimant claimed that on the 1st October 2014, the Claimant
applied for sick leave. However, record shows that he only went to the clinic in the later part of the
afternoon. And, on the 27th October 2014, he informed one Encik Fadhli that he has "sakit lutut" but in his
reply to the show cause letter, he said he is suffering from something else. So on the 28th October, he
applied for emergency leave stating he "sakit lutut" but did not produce any medical certificate."
“"From the evidence adduced before me, the Claimant's attendance record clearly shows that he did not
attain the 85% attendance benchmark for the month of October 2014 as required by the Company. His
claim that he was exempted from the said requirement is baseless as he did not give any reason why he
was so exempted neither did he produce any document or letters to support the same.
In any case, why should the 85% attendance benchmark not applicable to him when all the other
employees are subject to it. His claim that he "sakit lutut" on the 27th and 28th October to me is also a lie,
because his reasons for not turning for work on the said date was because he "sakit lutut" but in cross
examination, he said took emergency leave because he "sakit buku lali". Hence, from the totality of the
evidence adduced before me, this court finds that the Company has proven its case against the Claimant
on a balance of probabilities.
The issue before this Court is whether the ultimate sanction of dismissal in Industrial Jurisprudence is
appropriate in the circumstances of this case. Although, this Court is permitted to interfere in the
punishment imposed by the Company following the case of Norizan Bakar v. Panzana Enterprise Sdn Bhd
[2013] 9 CLJ 409, nevertheless, having considered the nature of the misconduct committed by the Claimant
coupled with the claimant's history of absentism, I do not see it fit for this Court to interfere with the
punishment meted as no employer would tolerate such behaviour as this not only disrupts the work in the
Company but it would also set a bad example to the other employees. That being the case, the Court
upholds the Company's decision and finds that his dismissal was with just cause and excuse."
How Your Organisation Can Benefit From This Case
➢ Setting an Attendance Rating Benchmark
The key take-home from this court decision is the idea that companies can, in managing absenteeism
issues, adopt the measure of setting an attendance rating benchmark and from there discipline
employees who fail to meet this benchmark.
Here, the company’s decision to set an 85% attendance rating benchmark for its employees and from
there choosing to discipline employees based on their failure to achieve this benchmark each month
was accepted by the Industrial Court.
Given this, it is recommended for organisations to stipulate an attendance rating benchmark into its
existing HR policies before proceeding to enforce this on employees.
AMBANK Berhad
v
Badrul Kamar Baharum & Anor
[High Court Judicial Review No: R-25-146-05-2015]
Overview
This update addresses the following questions:
“Where an employee is absent for more than two days over medical issues, how do the courts interpret the
provision on ‘informing or attempting to inform’ the company of one’s absence?
In our feature case, the first respondent (employee) was employed by Ambank as an office boy/general clerk
and had a long history of illness. In December 2010, he underwent an angiogram procedure and following this
was certified unfit for work until Friday, 24 December 2010. However, he failed to show up for work the
following Monday and Tuesday (December 27 and 28) as he was still feeling unwell following the procedure.
He however did visit one of the bank's panel clinics and obtained a medical certificate on December 28, 2010
and claimed that he had attempted to inform his superior and her secretary about his absence but his
attempts were futile. On Wednesday (29 December), the respondent was on his
way to work when sometime after 9am, he received a call from the Industrial Relations department of
the bank informing him that he had been dismissed with immediate effect. He was then served with a
termination letter alleging that he had been dismissed in accordance with Section 15(2) of the
Employment Act.
This led to his claim for unfair dismissal. The Industrial Court held that he had been unfairly dismissed
and ordered the bank to pay him backwages as well as compensation in lieu of reinstatement totalling
RM 62, 070. Aggrieved with this decision, the bank sought judicial review at the present High Court off
the Industrial Court's decision.
The High Court held in favour of the first respondent (employee), upholding the Industrial Court’s earlier
decision. In coming to this conclusion, the High Court addressed the issue of the overall fairness behind
the bank’s decision to dismiss the claimant wherein it said the following:
“I am of the view that, in the present case, AmBank was not entitled to terminate the services of En
Badrul in the manner that it had because of the following reasons: (a) having regard to the
circumstances of the case and to the principles of good conscience and equity, the act of AmBank to
dismiss him without notice was overly drastic and excessive. It was not disputed that En Badrul was
unwell, and had in fact undergone an angiogram procedure. Even though En Badrul was at fault for not
obtaining a medical certificate for his absence on 27 December, and for failing to notify AmBank of his
medical certificate for 28 December, the applicant's action in dismissing him for absenteeism itself
amounted to a breach of the terms of the contract of employment.”
In coming to its decision, the court also addressed the issue of whether the first respondent (employee)
had breached Section 15(2) and/or Section 60(F)(2) of the Employment Act by virtue of him being absent
on December 27 & 28 wherein it said the following:
Under s. 60F(2)(b) of the Employment Act 1955, an employee has 48 hours from the commencement of
the sick leave to inform his employer of such leave. If he had not been terminated, En Badrul would have
had until 8.45am on 30 December 2010 to inform AmBank, on the basis that his sick leave for 28
December would have commenced at the start of the work day (even though the medical certificate was
in fact obtained later in the afternoon). Thus, if he had gone in to work at any time on 29 December and
informed AmBank of his medical certificate for 28 December, he would have complied with the
requirements of s. 60F(2)(b), and his absence on 28 December would not have been deemed to have
been one that was without reasonable excuse. Of course, he was not able to do so, because he was
informed that he was dismissed when he was on his way to work on 29 December 2010.
It will be noted that both s. 15(2) and s. 60F(2)(b) provide for timelines within which an employer must be
informed of the excuse for absence. Under s. 15(2), an employer must be informed "prior to or at the
earliest opportunity during such absence", whereas s. 60F(2)(b) specifies a period of 48 hours from when
the sick leave commences. In my judgment, where the absence is the result of sick leave being taken, the
applicable period is that provided in s. 60F(2)(b), on the basis of the principle generalia specialibus non
derogant.
The timeframe provided in s. 15(2) applies in all other cases; and (b) Section 13(2) of the Employment Act
1955 entitles an employer to terminate an employee's contract of service without notice in the event of
any wilful breach of a condition of the contract of service. In this case, the employee had been ill. It is
difficult to see how an illness could give rise to a wilful breach on the part of the employee. Perhaps if an
employee had persistently and deliberately failed to inform the employer of his illness, a right may have
arisen in favour of the employer entitling dismissal, but not otherwise.
In this case, even though En Badrul could be said to have been in breach of his terms of employment,
such breach was not a wilful breach that entitled Ambank to terminate his services. Accordingly, the
respondent's dismissal was without just cause or excuse.”
➢ Section 60(F)(2)(b) Is the Applicable Law to Apply When Terminating Over Absences Related to Sick
Leave
The court here found that the correct part of the law to apply here should have been Section
60(F)(2)(b) of the Employment Act and not Section 15(2).
As such, the court consequently found that the claimant’s absence on December 27 should not be
factored into the calculation of the 48 hour timeline given to an employee under the law to inform
the employer when he/she is on medical leave – as the employee had not been on medical leave on
that date.
Consequently, the starting date for the employee’s medical leave should have been calculated from
December 28th which meant that the employee would have had till the morning of December 30th
before a violation of Section 60(F)(2)(b) could apply. Hence, the bank’s decision to dismiss the
employee on December 29th was premature.
➢ Key Take Away From This Decision
This case decision leaves more unanswered questions. Does it mean for instance that an employee
can be absent from work on a Monday and Tuesday without any justifiable excuse and on Tuesday
evening go to a doctor and obtain an MC and then have up to Thursday morning to inform the
company of his MC? This implies that the employee could avoid termination by going for even more
than three straight days of absence….
It would be interesting to see if this decision is appealed. In the meantime, the lesson we can apply
from this court decision is that:
1) An organisation when terminating an employee over absence related to a medical illness needs
to apply Section 60(F)(2)(b) instead of Section 15(2) particularly when the employee concerned
has managed to obtain a medical certificate, and
2) The calculation of the 48 hour timeline for an employee to inform an employer of his/her MC
starts from the start date of his MC, not the start date of his/her absence from work.
Afzal Amran
v
Etiqa Insurance Berhad
Overview
1. Where an employee is absent for more than three consecutive workdays without contacting the
employer, can the organisation instead of going through normal termination procedures consider
the absence as an ‘abandonment of employment’?, and
2. Can informing a work colleague of one’s absence meet the law’s requirement of ‘informing or
attempting to inform the company’ of one’s absence?
In our feature case, the claimant served Etiqa Insurance as a Business Development Executive and had
served the company for 14 years when he was terminated on the basis of his absence from August 2 - 4,
2010 without informing the company of the reasons of his absence. The company considered his actions
as an abandonment of employment and subsequently (upon giving him an opportunity to appeal)
terminated his services. In justifying the claimant's dismissal, the company also pointed to the claimant’s
past track record of absences and tardiness where he had already been warned over the consequences of
his repeating such absences/tardiness.
The claimant contended that his dismissal had been harsh especially when taking into consideration of his
years of service and that he had been on medical leave on two of those days of absence, i.e. from August
3-4, 2010, although he had failed to inform the company of his medical leave. The claimant further
contended that he had also informed his work colleague of his absence from work on August 2, 2010 and
his intention to take leave.
Given these conflicting viewpoints, the key issue before the Industrial Court was to determine whether
the company was justified in treating the claimant’s absence as an ‘abandonment of employment’.
The Industrial Court held in favour of Etiqa Insurance, holding that the claimant’s actions entitled it to
treat the matter as an ‘abandonment of employment’. In coming to this decision, the court first addressed
the law’s position for proving a claim of ‘abandonment of employment’ wherein it quoted the following:
"On the issue of abandonment of service, OP Malhotra in his distinguished text "The Law of Industrial
Disputes", 6th edn, vol. 1 at pp. 248 and 249 stated as follows:
It has been held that: Abandonment or relinquishment of service is always a question of intention, and,
normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf.
However, the 'intention may be inferred from the acts and conduct of the party'. The question as to
whether the job, in fact has been abandoned or not, is a question of fact which is to be determined in the
light of the surrounding circumstances of each case. It is further stated that: Under common law, an
inference that an employee has abandoned or relinquished service, is not easily drawn, unless from the
length of absence and from the other surrounding circumstances, an inference to that effect can be
legitimately drawn and it can be assumed that the employee intended to abandon his service.
Following this assessment, the court went on to assess whether the company was entitled to treat the
claimant’s absence as an abandonment of employment wherein it said the following:
“As stated above the question of whether the claimant had abandoned his employment and job is a
matter of intention which could be inferred from the claimant's acts and conduct. This court finds that
from his acts and conduct of not obtaining prior approval of the company for leave on 2 August 2010 and
not informing the company of his medical leave on 3 August 2010 and 4 August 2010 and subsequently
tendering his resignation letter, it was the claimant himself who had unilaterally terminated his own
contract of employment with the company by abandoning his job and as such his services stood
terminated automatically. The company had at no point dismissed the claimant from his employment.
Therefore, the dismissal was for a just cause or excuse. Accordingly, the claimant's claim is dismissed."
In coming to its decision, the court also addressed the issue of whether the claimant’s actions of
informing his colleague of his absence on leave met the requirement of ‘informing or attempting to
inform the company’ of his absence wherein it said the following:
“According to the Terms and Conditions of Employment, art. 6 para. 3 provides that where an executive is
unable to attend office he must inform his superior as soon as possible after the scheduled starting time
on the day of absence. Further art. 13 provides that no executive shall commence leave without
obtaining approval. Article 14 para. 7 provides that an executive when granted medical leave by a
registered medical practitioner must inform his immediate superior expeditiously as soon as the medical
leave is granted.
Further in regards the claimant asking CLW2 to inform CLW1 that he is on leave, I find that this is in
complete disregard of the company's procedures of leave application wherein leave must be applied
personally by the individual concerned. There were no barriers that prevented the claimant from doing
so, yet he could not be bothered to apply for leave in accordance with the company's procedures. This is
all the more obvious when the claimant was aware that CLW2 refused to assist him to inform CLW1 that
he is on leave and CLW2 asked him to personally apply for the leave himself. Thus it is crystal clear that
the claimant never applied for leave and was absent from work without the prior approval of CLW1 or
COW2 from 2 August 2010 to 4 August 2010."
➢ The Requirement for ‘Intention’ in Proving an Abandonment of Employment
Ending an employment relationship on the basis of ‘abandonment of employment’ is advantageous to a
company as it provides the organisation with the right to terminate the employment relationship without a
due inquiry (or domestic inquiry). However, the law requires that in order to prove an ‘abandonment of
employment’, the requirement for ‘intention’ must be satisfied, i.e. the company must prove that the
employee via his or her actions had demonstrated an intention to no longer continue being employed.
In order to safely apply the ‘abandonment of employment’ clause, I suggest the following steps:
1) Firstly, send the employee (who has been absent for three days consecutively without notice) a show
cause letter requiring him to explain his/her absence from work. In this same letter, go on to mention
that his actions are viewed as an ‘abandonment of employment’ and require them to respond in letter
within a stipulated time-frame to explain the reasons for their absence.
2) Based on the employee’s response, your organisation could then go on to write to the employee
informing him/her that the company considers their actions as an abandonment of employment.
However, in order to justifiably do so, the employee must either fail to respond to the show cause letter
or is unable to provide a satisfactory explanation. Once you have labelled the action as an
abandonment of employment, your organisation can in the same letter go on to demand that the
employee compensate the company for the value of their short notice for their failure to fulfil their
termination notice.
➢ State in Writing That Employees Must Inform Their Direct Superior of Their Absence
Another take-away from this case was Etiqa’s terms and conditions that provided for employees to
notify only their direct superiors of their absence. In this case, the court concurred the employee had
not fulfilled the requirement of informing/attempting to inform the company of his absence even
though he had attempted to inform his colleague of his absence. Here, the court found that the
colleague’s refusal to pass on the message of his absence/leave on to his superior further supported
the position that the employee had failed to inform the company of his absence.
Given this…
In your memo to staff on absenteeism, it is also recommended that your organisation inform each staff
member that they are not permitted/encouraged to accept their colleagues request to pass on any
messages of absence on to their superiors. It is important to highlight to team members here that they
should refuse their colleague’s request to pass on any such message and instead instruct him/her to
contact their superior directly.
a) Does an employer have the right
to instruct an employee to go for a
full medical examination?, and
b) Would refusal of the employee

to go for the medical examination
justify his dismissal from service?
Jagvinder Singh Maghar Singh
v
Motordata Research Consortium Sdn Bhd
Overview
This update addresses the following questions:
1. Does an employer have the right to instruct an employee to go for a full medical examination?, and
2. Would refusal of the employee to go for the medical examination justify his dismissal from service?
In our feature case, the claimant was employed by the company as an Assistant Manager at its Special
Projects Division. Approximately four years into his employment with it, he was repeatedly asked to
undergo a medical examination by the company after consuming his medical leave entitlement of 16 days.
Despite the repeated instructions, the claimant refused to go for the medical examination which resulted
in warning and show cause letters being issued against him for this refusal and for his breach of the
company’s confidentiality policy.
The claimant, once again, failed to respond to the warning and show cause letters and the company
proceeded to conduct a domestic inquiry against him. At the conclusion of the DI, which was conducted
ex-parte as he had refused to attend it, he was found guilty of the charges preferred against him and
dismissed from service. This led to his present claim for unfair dismissal.
The Industrial Court held in favour of Motordata, finding that it was entitled to dismiss the claimant for his
refusal to go for a full medical examination. In coming to this conclusion, the court addressed the crucial
issue of whether an organisation has the right to compel its employees to undergo a full medical
examination wherein it said the following:
“…A dominant feature of the employment contract is the right of the employer to tell the employee what to
do and the proper course for an employee is to obey the directive given. The most fundamental implied
duty of an employee is to obey his employer's order. In the instant case, the order given by the CEO of the
company and COW1 the Chief Operating Officer was perfectly within their powers to do so. The claimant
had utilized the maximum available days of medical leave in 2016 and had been admitted into hospital on
number of occasions. The claimant himself admits he was having breathing difficulties hence it was
reasonable for the company to request the claimant to undergo a medical examination and provide it with
a medical report.
This is not a case of an illegal directive given. The claimant's complaint is that he was being victimized by
the company and he did not see it as a legitimate reason. This allegation has not been proved by the
claimant. It remains a bare allegation. The Claimant's refusal to obey the order of his superior officers ie.
the CEO and COO of the company to undergo medical examination was done deliberately and intentionally.
The court finds that the claimant had acted disobediently when he wilfully ignored the instructions of the
CEO of the company and COW1. From the evidence of the claimant during cross examination, it was clear
that the claimant, was insubordinate and defiant of his superior's orders.”
“The claimant's conduct shows a complete disregard of the essential condition of the employment contract
which is that an employee must obey the proper order of his employer and unless he does so, "the
relationship is, so to speak, struck at fundamentally."
In Pan Global Textiles Bhd Pulau Pinang v. Ang Beng Teik [2002] 1 CLJ 181 at p. 197, the Federal Court
stated as follows:
‘It is generally held that the proper course for an employee is to obey the orders when it is given and
protest about its illegality in separate proceedings. The distinction is made on the basis that if it is allowed
to a worker to judge about the legality of every order and to disobey it, if he thinks, it is not legal, it would
be impossible for the management to get the work done.’
It is the strong view of this court that to condone this kind of behaviour by the claimant can only be
detrimental to company's discipline and further undermine the authority of the CEO and COO of the
company. Based on the aforesaid evidence, the court finds the claimant guilty of being insubordinate and
disobedient when he failed to undergo a medical examination and to provide an explanation."
1) An Employer Has the Right to Instruct An Employee to Go For a Medical Examination
There has been a lot of uncertainty among the HR/Legal fraternity on whether employers have the
right to compel/instruct their employees to go for a full medical. In light of the Personal Data
Protection Act, some legal practitioners have argued that employees have the right to not take a full
medical.
This case has however clarified that an instruction to go for a full medical falls within the band of a
‘reasonable and proper order’ that an employer is entitled to give to an employee and refusal to
adhere to such an instruction DOES amount to insubordination.
2) Revise Your Employment Terms To Clarify This Right of Management

It is important that organisations find a way of clarifying this right to instruct an employee to go for a
medical examination into its employment terms and conditions. In doing this, it would also be a good
idea to include a policy on drug/substance abuse testing. A sample clause is provided below:
➢ Medical Examination
‘The organisation has the right to require an employee undergo a medical examination at the
company’s expense at any-time at any of its nominated panel doctors/hospitals/specialists. This
right extends to situations where the employee is already seeing a medical specialist/doctor of
his/her own personal choosing and the company would like the employee to seek a second
opinion from the company’s identified panel doctor/hospital or specialist.
Where such instruction to go for a medical examination is issued, the employee must ensure that
he/she adheres to the directive and makes himself/herself available at the panel doctor or hospital
chosen by the company. Failure to adhere to this instruction will be deemed an act of insubordination,
which could result in serious disciplinary action.
➢ Drug Testing
‘Our organisation adopts a zero tolerance policy toward drug(s) or substance abuse. Given this, the
company has the right to instruct any employee to undergo drug testing at the company’s expense at its
nominated drug testing facility. Where such instruction is issued, an employee must within 24 hours
make himself/herself available to undergo the said drug test. Refusal to adhere to this instruction will
be deemed as an act of insubordination, justifying an employee’s dismissal from service.’
Known fact – employees refuse to go to a panel specialist appointed by the company. They also flatly
refuse to undergo a medical examination at all on the pretext that it is their right to safeguard their
privacy. Is this right?
Ng Sock Leng
Versus
Ng Huat Stationers Sdn Bhd
(Industrial Court Award No 102 of 2011)
CASE PREVIEW
This case addresses the following 2 issues:
1. Where an employee does not accept her confirmation (on grounds she was not given an increment
with the confirmation) but continues working with her employer who later terminates her, is she
deemed to be a permanent or probationary staff?
2. Can a company terminate an employee who is frequently late for work after a period of 1 year?
In our featured case, the claimant (Ng Sock Leng) was employed by her employer as its Administrative
Executive and placed on 3 months’ probation. The company subsequently issued her a letter of
confirmation which she refused to sign as she was not given any increment with it. Despite this, she
continued to work for her employer.
During her tenure of service, the claimant was repeatedly late for work. She was given one warning
letter for this
The company also issued a letter informing her of its dissatisfaction with her attitude after numerous
complaints were filed by other staff raising grievances with her. Subsequently, when the claimant failed
to show up for a stock count on January 1 2004, the company dismissed her.
This led to her claim of unfair dismissal where she contended that she had not received any warnings
from the company on her alleged arguments with other staff and that her late coming had been
condoned.
WHAT THE COURT HELD
The Industrial Court held in favour of the claimant, stating that despite her non acknowledgement
of her confirmation letter, she was deemed confirmed in law. In basing its finding that the claimant
was a confirmed employee the court cited the following:
‘The wordings of the said confirmation letter had been clear in what it had intended to do and that
was to confirm the claimant in her position. COW2 had attempted to say that it had merely been an
offer to confirm the claimant in her position and the claimant by her refusal to acknowledge or
accept the said letter had rejected the company’s offer of confirmation. The said letter of
confirmation had been plain and simple congratulating the claimant for her successful completion
of the 3 months. Her failure to acknowledge it had not made it any less of a confirmation by the
company of her. Hence the claimant at the same time of her termination had not been a
probationer’
With regard to the claimants late coming, the court found that the company had condoned her action
despite her being late for a period of more than 1 year. The court accordingly cited the following:
‘On the facts, the company seemed to have condoned her lateness in coming to work since May 2003.
Except for one letter allegedly sent to her warning her on it, she had not been warned any further. From
the evidence, the claimant had been coming to work late every day since May 2003 and the company
had only terminated her for her lateness in coming into work in August 2004. Thus it had been an
afterthought on the company's part to have now raised her lateness for work as an issue thus justifying
her dismissal and the company's arguments to this effect would be rejected. It would have been better
labour practice if the company had dealt with this issue with the claimant before they had decided to
terminate her. She should have been warned not to be late and that if she continued to be late that she
would be dealt with harshly.’
1. An employee need not accept confirmation to be deemed confirmed in law. Where your organisation
chooses to confirm an employee, the employee’s decision to accept or reject it is immaterial for
establishing a confirmation status. This augurs well for organisations where they do not want the
employee to leave without submitting their due termination notice, i.e. termination/resignation notice
for probationers are usually shorter than for confirmed employees. And
2. Beware of condonation in late coming.

Just because your organisation has a clearly stated policy on late coming does not mean it can choose
when to enforce it. If your organisation has not taken action for an employee’s prior late coming the law
will disregard this act as tantamount to your organisation condoning the late coming. Therefore, where
you find your employees are coming in late and would like to start disciplinary measures, then it is
prudent to first raise a memo along the following lines:
I note this increasing trend of employees reporting in late for work. Please note that late-coming
refers to any employee that is not at his actual work location at the start of his shift hour. In this
regard, punching in your time clock before the start of your work shift does not meet the requirement
of being on time. Rather, you must be present at your actual work location before the start of your
shift hour.
Please take note that effective immediately, employees that fail to meet this standard will be treated
as late-comers and subject to the company’s disciplinary process.
The Industrial Court Case between
Silverstone Bhd
vs.
Raman Muthusamy
The High Court Appeal No 16-5-2004
This update addresses the following issue:

Is a company entitled to not pay an employee for medical leave certificates or MC’s issued by a
government clinic?
In our featured case, the respondent claimant (Raman Muthusamy) was engaged as a technician with
Silverstone when he went on two days MC for his illness. This MC was issued by a Government clinic
that was not on Silverstone’s panel. As a result, Silverstone refused to compensate him for these 2 days
MC on the grounds that they were obtained by a non panel clinic of the company’s and that he had
failed to provide a written explanation for why he had to obtain his MC from a non-panel clinic.
Unhappy, the claimant reported this non payment to the Labour Department which found in his favour
and ordered Silverstone to compensate him for these 2 days medical leave. This led Silverstone to
appeal this decision before the present High Court.
What The Court Held
The High Court held in favour of Silverstone, reversing the order of the Labour Department. In basing its
decision, the court stated that as Silverstone had a clearly worded policy stipulating that it had a right to
refuse medical leaves from non-panel clinics where the employee fails to provided a written explanation
for doing so, Silverstone had a right to refuse paying the claimant for his MC’s. The Court accordingly cited
from Silverstone’s medical leave policy on non panel clinics in basing its decision in the company’s favour:
Citation 1
'Medical Leave from Non Panel Clinic
Having regard to the nature of circumstance of the illness where the services of the company’s
appointed panel clinic are not obtained within a reasonable time or distance, the employee may seek
medical attention and treatment from any registered medical practitioner or from any Government
medical officer. In such cases the company will reimburse the employee against receipted bills for the
cost of treatment and medicine.
Since the company has appointed adequate panel clinics for the convenience of all employees to seek
medical attention of treatment, any medical leave and/or receipted bills from non-panel clinic will
only be considered if the employee provides a written explanation or reason as to why he seek such
medical attention or treatment from the non-panel clinic. The company will reject any unsatisfactory
explanations and appropriate disciplinary action will be taken against him.'
The court also addressed the issue of whether Silverstone’s company policy on medical leave was at
odds with section 60F (1) (b) of the Employment Act. For your ease of reference, this section stipulates
that an employee is entitled to paid sick leave where his leave has been certified by a certified medical
practitioner. In finding that Silverstone’s policy did not contradict this section of the Act, the court cited
the following:
Citation 2
‘We are of the opinion this section 60F(1) (b) of the Act does not exclude government clinics,
unless where the government clinic has been appointed as a panel doctor (which in this case it
hasn’t). Furthermore, there has been no explanation for why the cliamnt took his MC from a non
panel clinic. If he had given a written explanation that was reasonable, there would have been a
possibility that this medical leave would have been accepted.
Without the written explanation from the claimant it is difficult for the company to decide on the
‘nature or circumstances of the illness’ which resulted in the claimant not being able to obtain
treatment from a government clinic within a reasonable time or distance.’
Your company is not obliged to approve MC’s obtained from non-panel clinics.
This case supports the premise that your organisation is not obliged in law to accept an MC obtained from
a non panel doctor. Do note however that where an employee is able to give you a reasonable
explanation for why he had to obtain the MC from a non panel doctor, good faith would require that your
organisation accept this MC.
Nevertheless, to safeguard your company’s right to choose whether or not to accept an MC obtained from
a non panel doctor, we suggest that your medical leave policy on non panel clinics include the following
specific paragraph:
Where an employee obtains a medical leave from a registered medical practitioner that is from
a non panel clinic of the company, such leave will automatically be labelled as unpaid leave by
the company until the employee submits a written explanation within 7 days from the last date
of the MC issue date. Should this written explanation be found (at the company’s discretion)
to be not justified or where the employee fails to submit such written explanation within the
stipulated time frame, the MC, will be categorised as unpaid leave.’
GOPALKRISHNAN VASUPILLAI
VS.
GOODYEAR MALAYSIA BHD & ANOR
(High Court Award No R3(1)-25-55-2007)
CASE PREVIEW
This case addresses the following issue:
‘What is the correct process that must be initiated before medically boarding out an employee?’
In our featured case, the claimant was medically boarded out by the company due to a recurring knee
injury. As his work involved physical labour, his employers (Goodyear) found him physically unable to fulfil
his jobs requirements. This resulted in the company medically boarding him out where they paid him an
advanced sum of RM12, 247, ex gratia payment totally RM40, 306 as well as a bonus payment of RM4,
450. All in all the employee received a compensation of 35 months.
When the claimant challenged the validity of the company’s decision to medically board him out the case
went before the Industrial Court which found in favour of Goodyear. Dissatisfied he challenged his
decision before the present High Court.
WHAT THE COURT HELD
The High Court held in his favour, finding that the Industrial Court judge had erred in coming to his
decision. In basing its decision the Court cited the following:
‘The common stand in these cases is the holding that the employer in medical boarding out cases is
expected to act reasonably in accordance with its obligations of social consciousness, and should attempt
to offer an alternative employment to the employee, even though it might be a lower paying job. And the
employer is expected to listen not only to the medical board, but must also consider whatever evidence
there are that might be favourable to the plaintiff. Implicit in this, is the requirement that the employer,
before it decides to act on the medical opinion, has also to properly listen to the employee. These principles
that apply on top of the doctrine of frustration of the employment contract, if at all applicable on the
particular facts of the case. I do not find in the present award any reference to these principles. On the
contrary the learned Industrial Court Chairman appears to unduly favour the evidence given for the
employer. The evidence given by the claimant appears to have been ignored. To this extent, the approach
of the Industrial Court Chairman does not accord with the principle stated in Pushpadevi Singam. The
award also seems to place undue emphasis on the football injury as the so called frustrating event. This
conclusion is perverse on the evidence, since the disability of the employee was a result of a cumulative
series of events, which included two work-related accidents. It is therefore questionable whether the facts
of this case really involves an extraneous supervening event not in the contemplation of the parties leading
to and rendering the performance of the contract of employment either totally impossible, or becoming
something radically different from that originally contracted for. I also find on the evidence there are
conflicting versions of the job functions of the employee, but no attempt is made in the award to properly
consider the employee’s versions of his job function, which according to him is more supervisory in
nature. In the total circumstances of this case, I find that the learned Industrial Court Chairman has firstly
not properly directed himself on the relevant law by ignoring the applicable principles in medically
boarded out cases; secondly, the learned Industrial Court Chairman has also failed to take into account
all relevant considerations, which, in particular, refers to the evidence provided by the employee and
favourable to him; and thirdly, the conclusion reached on the supervening extraneous event being the
football injury, is perverse on the evidence to the extent that it could be said the Industrial Court had
reached a conclusion on insufficient evidence. In totality therefore the decision-making process is open to
challenge on the grounds of error of law and excess of jurisdiction. Such being the case, it to be only fair
for this court to quash the award and have the matter remitted back to the Industrial Court to be heard
by a differently constituted tribunal in accordance with laws and on the basis that I have indicated earlier
in relation to the applicable principles in medically boarded out cases.’
➢When medically boarding out employee, follow the 4 stage process

1) The employer must first enquire if the employee is able to perform his or her work;
If it is established that the employee is unable to perform the work, then the following 3 stages
apply:
2) The employer must enquire into the extent in which the disabled employee is able to perform
his work, i.e. the employer must establish the extent the disability has on the employee's
ability to perform the job;
3) The employer must then enquire into the extent to which it can adapt the employee's work
circumstances to accommodate the disability. If this is not possible, the employer must
enquire into the extent it can adapt the employee's duties (including alternatives short of
dismissal); and
4) If no adaptation is possible, the employer must enquire if any suitable work is available.
➢ Suggested Company Policy on Medical Board-Out
In circumstances where an employee is unable to perform the job requirements due to illness or
incapacity, the company will adopt the following four stage assessment before proceeding to embark on a
medical board-out:
Step1
The HR department together with the employee’s superior will make an initial assessment on whether
the employee is able to perform his/her work.
Once it has been established that the employee is unable to perform the work, the following three steps
will apply:
Step 2
The company will go about determining the extent the employee’s disability is hampering his/her ability
to perform the job. This will normally involve:
a) Discussions with the employee;
b) Discussions with the employee’s immediate superior and departmental head; and
c) Interviews and/or medical reports obtained by doctors treating the employee. The company also has
the right to require the employee to go to another medical specialist in seeking an independent
medical opinion of the employee’s medical condition.
Step 3
The company will then take steps to inquire into ways that it can adapt the work’s circumstances to
accommodate the employee’s disability. If this cannot be achieved, the company will then explore to
what extent it can adapt the employee’s work duties. This will normally involve exploring means such as
placing the employee in a different job scope more accommodating to his disabilities (within his current
department) or reducing / reorganising the employee’s work hours.
Step 4
The company will then enquire whether there is any suitable work within the company for the
employee. This will involve the company considering alternatives such as vacancies existing within the
company that are more suitable for the employee.
If no alternatives can be found to accommodate the employee at this stage, the company will
commence medical board-out procedures.
Sathiya Kala A/P Nagapan
v
Malayan Banking Berhad
Overview
“Can an employee who is not medically ill enough to qualify for a medical board-out be nevertheless
terminated by her employer on the basis that her continued absence from work amounted to a
'frustration of the employment contract'?”
In our feature case, the Claimant commenced employment as a temporary staff with Maybank in 2004
before later in 2005 being offered permanent employment. During her tenure there, she was awarded
various Certificates of Appreciation by the bank for her achievements and her performance appraisals
between 2004 till mid-June 2009 rated her as a good performer.
Things started to turn south for the claimant thereafter when she underwent an operation at the Pantai
Hospital Bangsar due to a growth on her wrist. The claimant contended that the said operation affected
her nerve cells in the brain causing her giddiness, nausea and migraine. This resulted in her taking
excessive medical leave which led to the bank suspending her increment for 1 year vide its letter dated 12
January 2012.
The Claimant also received 2 show cause letters dated 15 January 2011 and 19 March 2012 over these
excessive leaves and was subsequently dismissed by the bank vide its letter dated 30 March 2012. The
claimant maintained that her dismissal had been unfair while the bank maintained that her dismissal was
due to her inability to report for work due to her illnesses which the bank contended amounted to a
frustration of the employment relationship.

The Industrial Court held in favour of Maybank, finding that it did have the right to dismiss the claimant
on the basis of frustration of contract. IN coming to this conclusion, the court stated/cited the following
with regard to the application of ‘frustration of contract’ due to medical illnesses:
""It has been held that one of the ways a contract of employment may come to an end apart from the
dismissal of the employee by the employer is by the application of the Doctrine of Frustration. By
“frustration” it is meant that there has been such a change of circumstances that events make it
physically impossible for a contract to be performed as for example where the illness lasts or is likely to
last for a prolonged period.
Under these circumstances it cannot be disputed that illness or incapacity which is permanent will
frustrate the contract and so will illness which is of so prolonged a nature as to prevent the employer
from getting substantially what he has bargained for as it is also accepted that an employee must
provide satisfactory performance of the work which he has contracted to do.”
“In the case of General Tyre Retreaders Sdn. Bhd. v. Vadiveloo Munusamy (1996) 2 ILR 1419 it was held
that extensive absence causes inconvenience and has a disruption effect on the productivity of the
business. There is a wealth of cases where it has been held that taking excessive medical leave can be a
serious misconduct and attracts the punishment of dismissal. It has been held that when an employee
takes excessive medical leave it indicates that he is unwilling to perform his duties as required under the
contract of employment with the Bank.
In Mastura Mohd. Mokhtar v. Affin Bank Berhad (2014) 3 ILR 113 it was held that where the employee is
unable to perform her duties in accordance with the terms and conditions of service the employer can
treat the contract of employment as frustrated. Based upon equity and good conscience and the
substantial merits of the case in the said case it was held that the contract of employment was
frustrated and the termination of the Claimant's contract of employment was with just cause or excuse."
Following this, the court then considered whether Maybank was right in taking the position that the
claimant’s employment had become frustrated. Here, it said the following:
"Applying these principles to the facts of the case where the evidence clearly shows that the Claimant
had taken excessive medical leave no doubt for a definite medical condition and certified by the Bank's
panel doctors, Bank was right in treating the contract of employment as having being frustrated. As held
in Spencer v. Paragon Wallpapers Ltd (1977) ICR 301 where it was held that the basic question which has
to be determined in such cases is whether in all the circumstances the employer can be expected to wait
any longer and if so, how much longer?
Every case will be different depending upon the circumstances. The Court opines that it is not whether
the Bank knew that the Claimant was on medical leave or that the medical certificates were from their
panel doctors for a definite medical ailment that the Claimant had suffered in the given instance. The
point is the Bank had been patient carrying the Claimant through from June 2009 to November 2011
and through 2012."
➢ Frustration of Contract Can Still Apply Even If an Employee Does Not Qualify for a Medical Board
Out
Many organisations have faced this situation where an injured or ill employee does not qualify for a
medical board out. In such a grey area, it is often difficult to know what to do and companies have in
the past ended up continuing to put up with the employee’s continued absence and leave from work.
This case law has clarified the position that companies can still consider that the employment
relationship has become ‘frustrated’ due to the employee not being able to fulfil his/her job
function. However, a reasonable time frame must be given for the employee to recover before a
‘frustration of contract’ can be applied.
How do the Industrial Court
determine whether a company's
decision to medically board out
a staff for depression/anxiety is
fair?
Ismail bin Medin
v
Sarawak Shell Berhad
Overview
“How do the Industrial Court determine whether a company's decision to medically board out a staff for
depression/anxiety is fair?”
In our feature case, the claimant commenced employment with the Company on 1st January, 1982 as a
Checker II. In his 33 year tenure with the company, he was promoted several times in years 1992, 1996,
2000, and 2006. He was dismissed via a notice of termination dated 24th March, 2015.
According to the company, the claimant was dismissed as a result of his inability to meet the core
performance requirements of his job despite being placed under a performance improvement plan
starting from 2013. The claimant however maintained that he suffered from major depression and his
work stress was a major contributing factor for his illness. This led to him going on frequent sick leave
between the period from 2013 to 2015. The claimant also inquired about a medical board out opportunity
in relation to his illness. However, the medical board panel of the company found that he did not fulfil the
criteria for a medical board out and was fit to work.
Following this, a TDM assessment was conducted in 2014 to evaluate the claimant’s ability to perform its
role. The assessment found that he was unable to fulfil his role’s requirements leading to him being given
to a lower job group and given lighter duties. Despite this redesignation, the claimant continued to not
perform, leading to his termination on 24th March, 2015. At the time of his termination from service, the
claimant’s monthly salary was RM14,795.00.
The Industrial Court held in favour of the company, holding that it was justified in dismissing the claimant
on account of his continuing poor performance. In coming to this conclusion, the court stated the
following:
“The Company had provided coaching and guidance to the Claimant on his work. The Claimant was asked
to take ownership of his work. From the totality of evidence shown above, the Company submitted that it
had provided ample opportunity to improve on his work. The Claimant’s poor performance had been
relayed to him since 18/1/2013 (Exhibit 5 CLBD 1) and he was placed under PIP for 2 years. During cross-
examination, the Claimant himself agreed that he was placed under PIP since March 2013 and the PIP
continued until end of 2014. COW1 testified that in normal circumstances, the Company’s PIP period is 4
months only.”
“The Company had also requested the Claimant to do a TDM competency assessment whereby the
Company had revised the Claimant’s jog group from 4 to 6. He was given lighter duties after the
assessment. The Claimant had admitted during cross examination that D. Maling and Y. Pei Ying had been
assigned to guide and train him technically on the various projects and assignments in 2011 and 2012. He
also agreed that COW 2 and his other
colleagues had provided him guidance and coaching in his job from 2013 to 2015. The Claimant also agreed
during cross examination that he had been encouraged to participate in the training organised by the
Company as part of his GPA. There are evidence to show that the datelines of the Claimant’s deliverables in
his GPA had been extended a few times to accommodate the Claimant. This is not disputed by the Claimant.
Therefore, based on available evidence, it is submitted that the Company had given the Claimant ample
opportunity and time to improve on his performance. The Claimant’s performance failed to show any
improvement The Company submitted that evidence shown during trial and mentioned above that the
Claimant still failed to improve his performance despite ample time and opportunities being provided to
him. The Claimant’s IPF had deteriorated to 0 and his IPF never increased after that. An IPF score of 0 was
the lowest performance rating given to an employee in the Company. The Claimant’s PIP was never lifted
since it started in 2013. In the circumstances, the Company submitted that based on the foregoing, the
dismissal of the Claimant was with just cause and excuse."
In coming to its decision, the court also delved into assessing the claimant’s major depression and anxiety
and whether it was justifiable mitigation for his poor performance wherein it said the following:
“"The evidence shows that the Claimant had sought for medical board out opportunity. The Company
accommodated his request and convened a medical board out panel. In the letter dated 12/10/2014 from
Columbia Asia Hospital to the Consultant Psychiatrist, Hospital Miri (The 10th letter in exhibit 11 CLBD 1),
Dr Gan mentioned that the Claimant informed him as follows:- ‘According to him, his emotional distress
only can be solved if he is allowed to be medical board out’ The medical board out panel convened on
30/1/2015. The members of the panel included Dr Aida Binti Mohd Arif (Head of Department and
Psychiatrist, Department of Psychiatry and Mental Health, Hospital Miri), Dr Gan Chee Kuan (Consultant
Psychiatrist, Permai Specialist Clinic, Kuching), Dr Yap Chin Hong (Consultant Psychiatrist, Yap Psychiatry
Specialist Clinic Sdn Bhd), COW3 and COW1. The purpose of the medical board are as follows: 1) To be
clear of the diagnosis and severity of the depression as well as the prognosis; 2) With the current illness, to
determine the Claimant’s fitness to return to work; 3) Will prolonged medical leave and treatment
beneficial for the Claimant illness and his work performance; and Does the Claimant fulfil the MBO
criteria? The board members interviewed the Claimant, COW2 and C. Chuan Heng. The board members
also considered the Claimant’s medical information and records.
The board consequently referred the Claimant to Dr Rachel Sim, a neurologist from Borneo Medical Centre,
Kuching to undergo investigation and assessments on the possibility of the Claimant being afflicted with a
cerebrovascular disease. According to Dr Sim, her physical examination of the Claimant showed that he
had normal cognition and cranial nerve functions. Dr Sim also performed higher mental function tests on
the Claimant and the result was normal. The MRI and MRA results on the Claimant’s brain showed normal
findings. Blood investigations to work out for dementia showed normal results.”
Quotation/Citation Four
“A medical board out is fulfilled only if all the following criteria are met: 1) If the employee suffered from a
permanent medical condition that prevented him from performing the duties required by his current job; 2)
If accommodation has been considered by the employee’s Line Manager but is not possible; and 3)
Alternative employment within the Company has been considered but is not possible. The evidence shows
that the Claimant did not fulfil criterion (1) as mentioned above. The Claimant did not suffer from a
permanent medical condition or cerebrovascular disease that prevented him from performing the duties
required by his job. After discussion and deliberation, having taken into account the Claimant’s mental and
physical conditions as reported by medical specialist, the panel concluded that:
1) The Claimant did not fulfil the criteria for MBO as the severity and duration of his depression would not
lead to permanent disability. He is not considered been given the optimal dose of medication with
adequate duration of treatment due to his poor compliant. Medical report from neurologist has ruled out
permanent organic cause of depression or underlying dementia. The obstructive sleep apnea is treatable
and would not cause permanent disability; and 2) Prolonged medical leave and treatment would not be
beneficial for the Claimant because in order for the Claimant to achieve full recovery from depression, he
would need to fully co-operate with taking medication and attend scheduled cognitive behaviour therapy
sessions. During the MBO interview, the Claimant had stated that he was not keen to pursue treatment as
he felt that it was not helping him resolve his problems. According to the medical board out report, it is
stated that 40% of individuals with depression disorder recover within 3 months and 80% recover within 1
year with medication.”
Quotation/Citation Five
“For the Claimant’s case, the reason for his poor recovery is the duration of untreated illness, he has
prominent anxiety symptoms and poor compliant to medication. In page 5 of the medical board out report,
when interviewed by Dr Aida Mohd Arif, the Claimant admitted to non-compliant with his medication given
by Dr Gan. He only took about 10 days of medication. The Claimant had indicated that he was not keen to
continue with the medication or treatment. In page 5 of the medical board out report, Dr Yap sated that it
had been pointed out to the Claimant that he needed to take the antidepressant for at least 2 weeks to 6
months in order to achieve clinical improvement of symptoms. In page 5 of the medical board out report
also, Dr Gan stated that the Claimant preferred to take herbal supplements for his medical problems. He is
not willing to try other modern medications. In the medical report dated 3/2/2015 prepared by Yap
Psychiatry Specialist Clinic Sdn Bhd, it is stated that the Claimant refused to take medications as he said
they did not help him. COW3 gave evidence that the summary of the medical board out report says that
the Claimant has a good prognosis to recover from depression if he complies with the medical and
cognitive behaviour therapy.
The Claimant is not suffering from any cerebrovascular disease. Therefore, based on the evidence adduced
during trial, the Claimant was not suffering from any permanent medical condition and that his medical
conditions could be treated. However, the Claimant’s refusal to adhere to any medical treatments meant
that there were no likelihood the Claimant could recover. He was still fit to work if he complied with the
medical treatments.”
➢ Ensure Your Organisation Fulfils The Criteria for Proving Poor Performance
Proving a case for poor performance is not about proving a sufficient number of written warnings
were issued to the staff. Instead, an organisation needs to prove the following:
1) Clear performance targets were identified for the employee
2) An action plan is jointly developed between the employee and his/her supervisor addressing the
steps to be taken to help the employee achieve the performance targets set,
3) The employee is provided with coaching and guidance throughout the process,
4) Regular reviews are conducted, and
5) The option of a ‘neutral’ third party is provided to the employee to oversee any improvement
initiative in ensuring the employee is being manged transparently and fairly.
Any performance management initiative for poor performers undertaken by an organisation needs to
benchmark itself against these five criteria.
➢ Depression Does Not Qualify for a Medical Board Out
The Industrial Court’s decision here has shed some light into how the courts evaluate cases involving
depression and mental illnesses at the workplace. Here, the court provided three guidelines for
meeting the threshold of eligibility for a medical board out and the criteria is:
a) If the employee suffered from a permanent medical condition that prevented him from
performing the duties required by his current job;
b) If accommodation has been considered by the employee’s Line Manager but is not possible; and
c) Alternative employment within the Company has been considered but is not possible.
In this case, the court was of the opinion that depression ordinarily does not fulfil the criteria for a medical
board out. An excerpt of the court’s opinion on this issue is provided below:
“The Claimant did not fulfil the criteria for MBO as the severity and duration of his depression would not
lead to permanent disability. He is not considered been given the optimal dose of medication with
adequate duration of treatment due to his poor compliant. Medical report from neurologist has ruled
out permanent organic cause of depression or underlying dementia. The obstructive sleep apnea is
treatable and would not cause permanent disability; and Prolonged medical leave and treatment would
not be beneficial for the Claimant because in order for the Claimant to achieve full recovery from
depression, he would need to fully co-operate with taking medication and attend scheduled cognitive
behaviour therapy sessions. During the MBO interview, the Claimant had stated that he was not keen to
pursue treatment as he felt that it was not helping him resolve his problems.
According to the medical board out report, it is stated that 40% of individuals with depression disorder
recover within 3 months and 80% recover within 1 year with medication.”
Thirumaran Govindasamy
v
Goodyear Malaysia Bhd
Overview
“Is an employer justified in terminating the services of an employee who persists in taking medical leave
(from non-panel doctors)?”
In our feature case, the claimant was employed as a Factory Operator by Goodyear and had served the
company for period of 18 years when he was found to have a poor record of attendance for the periods from
1999 to 2001 due to his persistent taking of medical leave. Throughout his employment with the company, he
received numerous warning and caution letters but he failed to improve. Further, he had been in the habit of
submitting medical leave certificates from non-panel clinics and hospitals.
In light of the increasing number of medical leave taken by him, he was required to undergo a medical
examination, which certified him to be normal and healthy. Flowing from this, he was issued a show cause
and suspension letter for persistently taking medical leave. The claimant responded to the show cause letter
but the company not being happy with his explanations,
proceeded to conduct a Domestic Inquiry ('DI') with five charges levelled against him, namely that he
had:
1) Taken 34 days (10.7% from actual working days) medical leave for year 1999, 61 days (19.5%) for
year 2000 and 64 days (20.3%) for year 2001.
2) Taken persistent medical leave (paid and/or unpaid) immediately preceeding or after a weekend
where an average of 51% of his MC”s taken feel on a Friday, Saturday and Monday for year 1999
(48%), year 2000 (55%) and year 2001 (50%).
3) Been seeking medical leave from General Practitioners (other clinics) even after visiting specialists
on 3 September 2001, 10 September 2001 and 18 September 2001.
4) Failed to improve his tardiness records despite reminder letters dated 20 June 2001, 19 October
2001 and 6 November 2001.
5) Been taking persistent medical leave for a period of three years which indicated his unwillingness to
perform his contractual duties under his contract of employment with the company.
At the conclusion of the DI, he was found guilty of three of the charges levelled against him and
dismissed from service. This led to him claiming unfair dismissal and the key issues before the court was
to determine whether his habit of going on persistent medical leave and being late for work justified the
company’s decision to dismiss him.
The Industrial Court held in favour of the company, holding that it was justified in dismissing the
claimant. In basing its decision, the court addressed the ultimate issue of whether the claimant’s actions
of going on persistent medical leave amounted to proving his ‘unwillingness to perform his duties as an
employee’ wherein it cited the following:
"The Industrial Court held in Malaysia Smelting Corporation Bhd, Butterworth v. Kesatuan Kebangsan
Pekerja-Pekerja Perusahaan Peleburan Logam Butterworth [1991] 1 ILR 508 (Award No. 148 of 1991)
[1992] 3 CLJ 1722 (High Court) that the taking of excessive medical leave is an unknown misconduct
under common law, statutory law or industrial law. The charge against the claimant was:
‘That you have persistently taken excessive medical leave for the last six years in order not to came to
work and indicating unwillingness to perform your contractual duties and obligation which is contrary to
the expected performance as per your contract of employment with the Company. In this case the
Industrial Court found the dismissal to be without just cause or excuse. It held that the taking excessive
medical leave if supported by bona fide medical certificates is an unknown misconduct in common law,
statutory law or industrial law.
On application for Judicial Review the High Court quashed the Award on the ground that the Industrial
Court failed to address the second issue ie. by taking excessive medical leave, the claimant had shown
that he was not willing to perform his duties as per his contract of services. The High Court held: The
Court had misdirected itself by misconstruing the charge. The charge had two limbs and the Court had
only considered the first limb viz. that R had persistently taken excessive medical leave. The second limb
was essential to the allegations advanced against R in that it qualified the first limb so that the essence of
the charge was that R persistently took excessive medical leave in order not to come to work and this
showed that he was not willing to perform his duties as per his contract of employment.
The fact of the present case is almost similar to the above authority. The difference is that those two
limbs or issues mentioned in Malaysian Smelting 's case was broke up into different charges that is
charges 1, 2 and charge 5. The second limb stated in the above authority will be as per the charge 5 as
follows: Charge 5 That you have been taken persistent medical leave for the pass three (3) years and this
indicates your unwillingness to perform your contractual duties under your contract of employment with
the company. Based on the above and as stated earlier all the 3 charges are interrelated as they involve
the issue of excessive medical leave taken by the claimant with the intention not to come to work."
Following this finding, the court also addressed the issue of whether the habit of taking MC’s prior to or
after a weekend was a justifiable reason for dismissal given the reality that the MC was issued by a
registered medical practitioner. In holding that this charge was proven, the court stated the following:
"The claimant also in the habit of going on medical leave before and after the rest day (weekend). This
can be seen from the pattern of the medical leave taken by the claimant. Therefore the question to be
asked is whether the act of taking excessive Medical Leave to avoid coming into work and performing
duties amount to misconduct. The case of General Tyre Retreaders Sdn Bhd v. Vadiveloo Munusamy
[1996] 2 ILR 1419 (Award No. 532 of 1996) states that:
‘It is settled in law that an employee is entitled to sick leave after examination by a doctor appointed by
the employer so long as he does not abuse the purpose of sick leave certificate. Sick leave is meant for
employees who fall sick and who are not medically fit to perform their duties and not as means to avoid
coming to work. Persistent absenteeism by an employee under the pretext of medical unfitness may be
taken as an indication not to perform his contractual obligations to his employer. This is because
extensive absence causes inconvenience and has a disrupting effect on the productivity of the business.’
The court is satisfied that the company has proved that the claimant has been taking persistent medical
leave for the past 3 years.”
"The Court is of the view that honesty and integrity are amongst the key characteristics that any
employee should possess, no matter what form of employment the employee is engaged in. Every
employee has to be honest to the employer and to themselves. The claimant in this case has abuse the
medical leave benefit that was provided by the company. The claimant claimed that he was seriously ill
but the evidence by the company proved otherwise. His act by persistently taking medical leave
indicates his unwillingness to perform his contractual duties under contract of employment…

➢ The Industrial Court’s Willingness to Look Beyond The Face Value of an MC
This case clarifies the position that our Industrial Courts are today prepared to look behind the face
value of whether an MC was issued from a registered medical practitioner. In the past, our Industrial
Courts took the rigid view that if the medical certificate was issued from a registered medical
practitioner (be it from a panel of non-panel doctor), the courts would be duty-bound to accept the
medical certificates at face-value and hold that the company could not question these.
This case shows the courts willingness today to look beyond the ‘face value’ of the MC and look into
the actual circumstances surrounding the employee’s taking of the medical leave; including analysing
the trend of when the employee consumed these MC’s (such as prior to or after weekends), his full
health/medical assessment report and the number or quantum of medical leaves taken – in deciding
whether the claimant had been justly dismissed.
➢ Two Limb Test for Justifying Termination Due to Excessive Taking of Medical Leaves
In this case decision, the court endorsed the two-limb test for determining whether dismissal over
medical leaves are justified. This two-limb test is:
1) Are the medical leaves taken deemed excessive? And
2) Do they demonstrate the employee’s unwillingness to perform his contractual duties as an
employee?
Given this, it is recommended that when your organisation is disciplining an employee over medical
leaves – your allegations or charge specifically include that ‘the employee’s actions amounted to him
showing his or her unwillingness to perform their contractual duties as an employee’.
However, in meeting this test of the second limb, it is crucial that your organisation submit evidence
that the employee had undergone a ‘full medical’ where the results showed that he/she was not
suffering from any illness.
Mohd Khuzaini bin Muhd Radzi
v
Shangri-La Hotel, Kuala Lumpur
Overview
“Does an organisation have the right to dismiss an employee over the reason that he had proceeded to
go on unapproved leave despite having his annual leave application rejected?”
In our feature case, the claimant served Shangri-La Hotel, KL as a bartender for a period of three years
since 2009 when he was terminated over his absence for more than two consecutive work days without
informing or attempting to inform the hotel of the reasons for his absence.
The facts showed that the claimant had earlier applied for leave to go on an earlier booked vacation to
Bandung, Indonesia. This was rejected by the hotel on the ground that there was an important event held
at the hotel during the material time which required his presence. Nevertheless, the claimant proceeded
to go on unapproved leave from March 5th to March 8th, 2012.
The claimant contended that he submitted his application to go on leave as early as February 2, 2012.
This contention was rejected by the hotel which maintained that the claimant only submitted his
application for leave on March 2, 2012 and was clearly informed of the rejection of this leave
application.
Given the conflicting evidence, the key issue before the Industrial Court was to determine whether the
hotel was justified in terminating the claimant for his absence for more than two consecutive work days
per Section 15(2) of the Employment Act.

The Industrial Court held in favour of the hotel, finding that it was justified in dismissing the claimant. In
coming to this decision, the court first addressed the issue of whether the hotel had the discretion for
rejecting the claimant’s annual leave application wherein it said the following:
Citation/Quotation 1
"It is obvious that the Claimant never informed his superior COW-2 of his trip to Bandung Indonesia
despite booking for the trip the year before on 23 August 2011 as per his letter of explanation dated 9
March 2012 on page 15 - 16 of COB-1. Furthermore, despite booking for the trip the year before, the
Claimant chose to submit his leave application only on 2 March 2012. The Claimant was also fully aware
that the Hotel would host the Palm Oil Conference yearly and this would be a very busy period wherein
employees are not allowed to take leave.
Even if the Claimant had submitted his leave application on 1 February 2012 he cannot assume such
application would be approved and it is incumbent on any employee to check the status of his/her leave
application before going on annual leave. Furthermore, all leave applications are subject to the approval
of the Company. These requirements were also provided for in the Hotel’s Policy...“
Following this, the court then went on to evaluate whether the hotel was justified in terminating the
claimant under Section 15(2) of the Employment Act wherein it said:
"The Claimant’s absence from work for two (2) consecutive days was only in breach of Section 15 (2) of the
Employment Act 1950 which provides as follows: “An employee shall be deemed to have broken his contract of
service with the employer if he has been continuously absent from work for more than two consecutive working
days without prior leave from the employer, unless he has reasonable excuse for such absence and has informed
or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence.”
In the case of Sri Bayanemas Road Feeder Services Sdn Bhd v. Rohani Abd Rahman [2007] 3 ILR 582, wherein the
Industrial Court ruled that the dismissal was with just cause and excuse when the Claimant in that matter was
absent for just one day. In that case the Claimant’s reason for not being able to report to work was not accepted
by the Company. In an employment relationship, the employee must discharge his duty faithfully and must not
conduct himself in a manner which is detrimental to his employer. In Pearce v. Foster [886] 17 QBD 536, it was
held as follows: “The rule of law is that where a person has entered into the position of a servant, if he has done
anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to
dismiss him. The relation of master and servant implies necessarily that the servant shall be in a position to
perform his duty duly and faithfully, and if by his own act prevents himself from doing so the master may dismiss
him… what circumstances will put a servant into the position of not being able to perform in a due manner, his
duties, or of not being able to perform his duty in a faithful manner it is impossible to enumerate …..”. Pursuant
to the Claimant’s absence from work during the Palm Oil Conference, the Hotel had to hire a part timer and that
many employees had to do overtime...For the above reasons, this Court finds the misconduct committed by the
Claimant were serious in nature and therefore the punishment meted out to him is justified."
➢ Going on Unapproved Leave is Ground for Dismissal
The Industrial Court’s decision on this matter has clarified the position that annual leave is ultimately
at the ‘discretion’ of the employer to approve. Irrespective of whether an employee is entitled to his
or her annual leave, approval is still at the discretion of the employer to approve and an employee
can be dismissed for such unapproved absence.
➢ Applying Section 15(2) for Unapproved Leave Is Endorsed by the Industrial Court
This case decision has also clarified the position that where an employee goes on unapproved leave
(without attempting to contact the employer) in excess of two working days, an organisation has the
right to consider this a violation as per Section 15(2) of the Employment Act. This avenue is perhaps
much easier an option to apply for organisations as opposed to labelling this as an act of
disobedience/insubordination or a major misconduct.
Bear in mind though that Section 15(2) only applies to your junior category of employees, i.e. those
earning not more than RM 2000 per month, are manual workers or direct supervisors (of manual
workers).

Presentation Managingabsences 29082023

Uploaded by

Copyright:

Available Formats

You might also like

Presentation Managingabsences 29082023

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Presentation Managingabsences 29082023

Uploaded by

Copyright:

Available Formats

How to Proactively

A Half Day Public Training Program

Chief Executive Officer

We Guide Organisations across South East Asia on how best to

What the Industrial Court Held

Persistent Tardiness Is a Valid Ground for Dismissal

Work From Home Related Injuries May Be Claimable Under SOCSO

What the Industrial Court Held

Ensure A More Formal Means of Communicating An Employee’s Resignation

What the Industrial Court Held

A Domestic Inquiry Should Be Conducted When an Allegation of Sexual Harassment Surfaces

What the Industrial Court Held

HOW CAN YOUR ORGANISATION BENEFIT FROM THIS CASE

What the Industrial Court Held

What the Industrial Court Held

b) Would refusal of the employee

2) Revise Your Employment Terms To Clarify This Right of Management

2. Beware of condonation in late coming.

This update addresses the following issue:

➢When medically boarding out employee, follow the 4 stage process

What the Industrial Court Held

This update addresses the following question:

What the Industrial Court Held

1) Clear performance targets were identified for the employee

4) Regular reviews are conducted, and

How Your Organisation Can Benefit From This Case

What the Industrial Court Held

You might also like